THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
Troy Public Library
61ST CONGRESS : = 3o SESSION
DECEMBER 5, 1910-MARCH 4, 1911
SENATE DOCUMENTS
VOL. 73
WASHINGTON : : GOVERNMENT PRINTING OFFICE : : 1912
61sT CONGRESS ) QT?MATT? /DOCUMENT
3d Session \ SENATE j No. 870
NORTH ATLANTIC COAST FISHERIES
PROCEEDINGS
IN THE
North Atlantic Coast Fisheries
Arbitration
BEFORE
UNDER THE PROVISIONS OF THE GENERAL TREATY OF
ARBITRATION OF APRIL 4, 1908, AND THE SPECIAL
AGREEMENT OF JANUARY 27, 1909, BETWEEN
THE UNITED STATES OF AMERICA
AND GREAT BRITAIN
(IN TWELVE VOLUMES)
VOLUME III
WASHINGTON
GOVERNMENT PRINTING OFFICE
1912
-JX
CONTENTS OF PROCEEDINGS.
23?
VOLUME I:
Final Report of the Agent of the United States.
Protocols of the Arbitration.
Award of the Tribunal, and Dissenting Opinion of Dr. Drago on Question
Five.
Case of the United States.
VOLUME II:
Part I of the Appendix to the Case of the United States (Treaties. Stat-
utes, and Correspondence).
VOLUME III:
Part II of the Appendix to the Case of the United States (Correspond-
ence).
VOLUME IV:
Case of Great Britain.
Parts I and II of the Appendix to the Case of Great Britain (Treaties
and Correspondence).
VOLUME V:
Part III of the Appendix to the Case of Great Britain (Statutes).
VOLUME VI:
Counter Case of the United States.
Appendix to the Counter Case of the United States.
VOLUME VII:
Counter Case of Great Britain.
Appendix to the Counter Case of Great Britain.
VOLUME VIII:
Printed Arguments of the United States and Great Britain.
VOLUME IX:
Part I of the Oral Arguments before the Permanent Court (Sir Robert
Bannatyne Finlay, Great Britain; Honorable George Turner, United
States).
VOLUME X:
Part II of the Oral Arguments before the Permanent Court (Sir James
S. Winter, Great Britain; Honorable Charles B. Warren, United
States; Mr. John W. Ewart, Great Britain; Honorable Samuel J.
Elder, United States).
VOLUME XI:
Part III of the Oral Arguments before the Permanent Court (Sir William
Snowdon Robson, Great Britain; Honorable Elihu Root, United States).
VOLUME XII:
Appendices to the Oral Arguments before the Permanent Court.
Indexes.
ra
8575SO
NORTH ATLANTIC COAST FISHERIES
APPENDIX
TO THE
CASE OF THE UNITED STATES
BEFORE
THE PERMANENT COURT OF ARBITRATION
AT THE HAGUE
UNDER THE
PROVISIONS OF THE SPECIAL AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND GREAT BRITAIN
CONCLUDED JANUARY 27, 1909
ON TWO PARTS)
PART 2
CONTENTS OF THE APPENDIX.
fThe Appendix Is divided Into two parts (Volumes II and III), paged consecutively. Volume II con-
tains pages 1 to 638; Volume III contains pages 639 to 1308.J
PART II.
SECTION III. — CORRESPONDENCE, DOCUMENTS, AND PAPERS (Continued from Vol. II.)
Subsequent to the treaty of 1818. Page.
Period from 1871 to 1905 639
Earl of Kimberley to Lord Lisgar, June 17, 1871 639
Mr. Fish to Sir Edward Thornton, June 24, 1871 643
Sir Edward Thornton to Mr. Fish, June 26, 1871 643
Mr. Pakenham to Mr. Davis, July 26, 1871 644
Mr. Davis to Mr. Pakenham, August 9, 1871 644
Mr. EvartstoMr. Welsh, March 2, 1878 645
Mr. Welsh to Lord Derby, March 19, 1878 646
Lord Derby to Mr. Welsh, March 25, 1878 647
Mr. F. W. SewardtoMr. Welsh, April 6, 1878 647
Mr. Evarts to Mr. Welsh, April 26, 1878 (with inclosure) 647
Lord Salisbury to Mr. Hoppin, May 3, 1878 649
Mr. F. W. Seward to Mr. Welsh, August 13, 1878 650
Lord Salisbury to Mr. Welsh, August 23, 1878 (with inclosure).... 650
Mr. Evarts to Mr. Welsh, September 28, 1878 652
Lord Salisbury to Mr. Welsh, November 7, 1878 (with inclosures) . . 657
Mr. Evarts to Mr. Welsh, August 1, 1879 661
Mr. Evarts to Mr. Babson, August 5, 1879 673
Mr. Evarts to Sir Edward Thornton, August 5, 1879 674
Mr. Welsh to Mr. Evarts, August 13, 1879 (with inclosure) 675
Captain Kennedy, R. N., to Governor Sir J. Glover, August 26,
1879 676
Mr. Prowse to the colonial secretary, August 27, 1879 676
Governor Sir J. Glover to Sir M. Hicks-Beach, August 28, 1879. . . 677
Mr. Hoppin to the Marquis of Salisbury, November 21, 1879 678
The Marquis of Salisbury to Mr. Hoppin, November 24, 1879 678
Mr. Evarts to Mr. Hoppin, February 5, 1880 678
Mr. Hoppin to Mr. Evarts, February 7, 1880 679
Mr. Hoppin to Mr. Evarts, February 10, 1880 679
Mr. Hoppin to Mr. Evarts, February 14, 1880 (with inclosure) 680
Mr. Hoppin to Mr. Evarts, February 14, 1880 (with inclosure) 681
Mr. Evarts to Mr. Hoppin, February 26, 1880 682
Mr. Hoppin to the Marquis of Salisbury, February 27, 1880 682
The Marquis of Salisbury to Mr. Hoppin, March 2, 1880 682
The Marquis of Salisbury to Mr. Hoppin, April 3, 1880 (with in-
clo«ures) 683
Sir E. Thornton to Earl Granville, May 24, 1880 (extract) 708
vn
VHI CONTENTS OF THE APPENDIX.
SECTION III. — CORRESPONDENCE, DOCUMENTS, AND PAPERS — Continued.
Subsequent to the treaty of 1818 — Continued.
Period from 1871 to 1905 — Continued. Page.
Earl Gran ville to Sir E. Thornton, June 9, 1880 711
Mr. Lowell to Earl Gran ville, June 12, 1880 , 711
Earl Granville to Mr. Lowell, October 27, 1880 712
Mr. Evarts to Mr. Lowell, February 4, 1881 (with inclosures) 714
Mr. Evarts to Mr. Lowell, February 4, 1881 718
Earl Gran ville to Sir E. Thornton, February 18, 1881 721
Mr. Evarts to Mr. Lowell, February 18, 1881 722
Mr. Evarts to Mr. Lowell, February 19, 1881 722
Mr. Lowell to Mr. Evarts, February 19, 1881 722
Mr. Lowell to Mr. Evarts, February 21, 1881 722
Mr. Lowell to Mr. Evarts, February 22, 1881 723
Mr. Evarts to Mr. Lowell, February 23, 1881 724
Mr. Lowell to Mr. Evarts, February 24, 1881 725
Earl Granville to Sir E. Thornton, February 24, 1881 725
Mr. Evarts to Mr. Lowell, February 25, 1881 726
Sir E. Thornton to Earl Granville, February 28, 1881 726
Mr. Evarts to Mr. Lowell, March 2, 1881 727
Earl Granville to Sir E. Thornton, March 3, 1881 728
Earl Granville to Sir E. Thornton, March 3, 1881 728
Mr. Evarts to Mr. Lowell, March 5, 1881 729
Mr. Elaine to Mr. Lowell, March 8, 1881 729
Mr. Lowell to Mr. Elaine, March 9, 1881 730
Mr. Lowell to Mr. Elaine, March 12, 1881 730
Mr. Elaine to Mr. Lowell, March 14, 1881 731
Sir E. Thornton to Earl Granville, March 14, 1881 731
Mr. Lowell to Earl Granville, March 15, 1881 732
Earl Granville to Sir E. Thornton, March 17, 1881 732
Sir E. Thornton to Earl Granville, March 31, 1881 733
Earl Granville to Sir E. Thornton, April, 2, 1881 733
Sir E. Thornton to Earl Granville, April 4, 1881 (extract) 734
Sir E. Thornton to Earl Granville, April 25, 1881 (extract) 734
Earl Granville to Sir E. Thornton, April 28, 1881 735
Mr. Elaine to Sir Edward Thornton, May 6, 1881 735
Sir Edward Thornton to Mr. Elaine, May 28, 1881 736
Mr. Elaine to Sir Edward Thornton, May 28, 1881 737
Sir Edward Thornton to Mr. Elaine, June 2, 1881 737
Mr. Elaine to Sir Edward Thornton, June 4, 1881 737
Mr. Elaine to Mr. Lowell, July 30, 1881 738
Mr. Lowell to Lord Granville, August 19, 1881 739
Lord Granville to Mr. Lowell, August 29 1881 741
Lord Granville to Mr. Hoppin, November 17, 1881 741
Memorandum from British Embassy to Departmaut of State, May
3, 1882 742
Memorandum from Department of State to British Embassy, May
9, 1882 743
Lord Granville to Sir L. S. West, July 15, 1882 745
Mr. Frelinghuysen to Mr. Lowell, April 5, 1883 747
Mr. Lowell to Mr. Frelinghuysen, June 6. 1883 (with inclosures). . 748
Mr. Lowell to Lord Granville July 2, 1883 749
Lord Granville to Mr. Lowell, August 22, 1883 750
CONTENTS OF THE APPENDIX. H
SECTION III. — CORRESPONDENCE, DOCUMENTS, AND PAPERS — Continued.
Subsequent to the treaty of 1818 — Continued.
Period from 1871 to 1905 — Continued. Page.
Mr. Lowell to Lord Granville, August 23, 1883 750
Mr. West to Mr. Frelinghuysen, October 9, 1883 751
Mr. Lowell to Mr. Frelinghuysen, January 1 7, 1884 (with inclosures) 752
Mr. Frelinghuysen to Mr. West, July 11, 1884 753
Mr. West to Mr. Frelinghuysen, July 12, 1884 753
Lord Lansdowne to Earl Granville, March 3, 1886 754
Lord Rosebery to Sir L. West, March 18, 1886 754
Sir L. West to Mr. Bayard, March 19, 1886 755
Mr. Bayard to Sir L. West, March 23, 1886 755
SirL. West to Mr. Bayard, March 24, 1886 755
Lord Lansdowne to Earl Granville, March 25, 1886 (with inclosures) 756
Mr. Bayard to Sir L. West. May 10, 1886 763
SirL. West to Mr. Bayard, May 10, 1886 767
Mr. Bayard to Mr. Phelps May 11, 1886 767
Mr. Bayard to Sir L. West, May 20, 1886 768
Mr. Bayard to SirL. West, May 22, 1886 770
Mr. Bayard to Mr. Phelps, May 22, 1886 (with inclosures) 771
Mr. Bayard to Mr. Phelps, May 27, 1886 r 773
Mr. Bayard to Sir L. West, May 29, 1886 774
Mr. Bayard to Mr. Phelps, May 30. 1886 775
Mr. Phelps to Lord Rosebery, June 1, 1886 775
Mr. Bayard to Mr. Phelps, June 1. 1886 775
SirL. West to Mr. Bayard, June 2, 1886 776
Mr. Phelps to Lord Rosebery, June 2, 1886 776
Earl Granville to Lord Lansdowne, June 3, 1 886 784
Earl Granville to Lord Lansdowne, June 4 1886 785
Lord Lansdowne to Earl Granville, June 8, 1886 785
Mr. Bayard to Sir L. West, June 14, 1886 787
Sir L. West to Mr. Bayard, June 15, 1886 788
Mr. Bayard to Mr. Phelps, June 18, 1886 788
Lord Lansdowne to Earl Granville, June 18, 1886 (with inclosure). 789
Mr. Bayard to Mr. Phelps, June 18, 1886 (with inclosure) 791
Mr Bayard to Sir L. West, July 2, 1886 792
Mr. Willard to Mr. Bayard, July 3, 1886 792
SirL. West to Mr. Bayard, July 3, 1886 793
Sir L. West to Mr. Bayard, July 3, 1886 793
Earl Granville to Lord Lansdowne, July 6, 1886 793
Mr. Woodbury to Mr. Bayard, July 7, 1886 (with inclosures) 793
Mr. Boutelle to Mr. Bayard, July 10, 1886 798
Mr. Bayard to Sir L. West, July 10, 1886 799
Mr. Boutelle to Mr. Bayard, July 14, 1886 (with inclosure) 799
Lord Lansdowne to Earl Granville, July 12, 1886 800
Amendment to circular No. 371, customs department, Ottawa,
July 12, 1886 800
Earl Granville to Lord Lansdowne, July 15, 1886 801
Earl Granville to Lord Lansdowne, July 15, 1886 (with inclosures). 801
Mr. Bayard to Mr. Phelps, July 15, 1886 803
Mr. Bayard to Mr. Hardinge, July 16, 1886 803
Mr. Hardinge to Mr. Bayard, July 17, 1886 804
Lord Rosebery to Mr. Phelps, July 23, 1886 804
X CONTENTS OF THE APPENDIX.
SECTION III. — CORRESPONDENCE, DOCUMENTS, AND PAPERS — Continued.
Subsequent to the treaty of 1818 — Continued.
Period from 1871 to 1905 — Continued. Page.
Mr. Bayard to Sir L. West, July 30, 1886 805
Mr. Bayard to Mr. Phelps, July 30, 1886 (with inclosures) 806
Mr. Hardinge to Mr. Bayard, July 31, 1886 808
Mr. Hardinge to Mr. Bayard, August 2, 1886 (with inclosures) 809
Mr. Bayard to Mr. Hardinge, August 9, 1886 824
Mr. Presson to Mr. Bayard, August 9, 1886 (with inclosure) 824
Mr. Hardinge to Mr. Bayard, August 10, 1886 825
Mr. Presson to Mr. Bayard, August 10, 1886 (with inclosure) 825
Mr. Presson to Mr. Bayard, August 14, 1886 (with inclosure) 828
Mr. Bayard to Sir L. West, August 17, 1886 829
SirL. West to Mr. Bayard, August 18, 1886 829
Mr. Bayard to SirL. West, August 18, 1886 830
SirL. West to Mr. Bayard, August 18, 1886 830
SirL. West to Mr. Bayard, August 19, 1886 831
Sir L. West to Mr. Bayard, September 1, 1886 831
Lord Iddesleigh to Mr. Phelps, September 1, 1886 831
Mr. Bayard to Sir L. West, September 10, 1886 832
Sir L. West to Mr. Bayard, September 11, 1886 833
Mr. Phelps to Lord Iddesleigh, September 11, 1886 833
Sir L. West to Mr. Bayard, September 17, 1886 838
Sir L. West to Mr. Bayard, September 18, 1886 839
Mr. Bayard to Sir L. West, September 23, 1886 839
Sir L. West to Mr. Bayard, September 25, 1886 840
Lord Iddesleigh to Mr. Phelps, October 11, 1886 840
Sir L. West to Mr. Bayard, October 12, 1886 (with inclosure) 840
Mr. Bayard to Sir L. West, October 19, 1886 842
Mr. Bayard to Sir L. West, October 20, 1886 (with inclosure) 844
SirL. West to Mr. Bayard, October 21, 1886 846
Mr. Bayard to Sir L. West, October 27, 1886 (with inclosures) 847
Sir L. West to Mr. Bayard, November 1, 1886 (with inclosures) ... 848
Mr. Bayard to Mr. Phelps, November 6, 1886 849
Sir L. West to Mr. Bayard, November 9, 1886 (with inclosure)... 858
Mr. Bayard to Sir L. West, November 11, 1886 (with inclosures) . . . 859
Sir L. West to Mr. Bayard, November 12, 1886 861
Sir L. West to Mr. Bayard, November 15, 1886 862
Mr. Bayard to Mr. Phelps, November 15, 1886 (with inclosures).. 862
Mr. Bayard to Mr. Phelps, November 20, 1886 (with inclosure) . . . 867
Mr. Phelps to Lord Iddesleigh, November 27, 1886 869
Lord Iddesleigh to Mr. Phelps, November 30, 1886 869
Mr. Bayard to Sir L. West, December 1, 1886 (with inclosure) 873
Mr. Phelps to Lord Iddesleigh, December 2, 1886 876
Mr. Phelps to Lord Iddesleigh, December 3, 1886 877
Sir L. West to Mr. Bayard, December 6, 1886 (with inclosure). .. 878
Mr. Bayard to Mr. Phelps, December 7, 1886 879
Sir L. West to Mr. Bayard, December 7, 1886 (with inclosures). . . 879
Sir L. West to Mr. Bayard, December 7, 1886 (with inclosures). . . 881
Sir L. West to Mr. Bayard, December 7, 1886 (with inclosures). . . 886
Mr. Bayard to Mr. Phelps, December 8, 1886 887
Mr. Bayard to Sir L. West, December 11, 1886 888
Mr. Bayard to Mr. Phelps, December 13, 1886 888
CONTENTS OP THE APPENDIX. XI
SECTION III. — CORRESPONDENCE, DOCUMENTS, AND PAPERS — Continued.
Subsequent to the treaty of 1818 — Continued.
Period from 1871 to 1905 — Continued. Page.
Lord Iddesleigh to Mr. Phelps, December 16, 1886 889
Sir L. West to Mr. Bayard, December 24, 1886 890
Sir L. West to Mr. Bayard, January 6, 1887 (with inclosures) 890
Lord Iddesleigh to Mr. Phelps, January 11, 1887 893
Sir J. Pauncefote to Mr. Phelps, January 14, 1887 894
Sir L. West to Mr. Bayard, January 19, 1887 (with inclosures) 895
Mr. Phelps to the Marquis of Salisbury, January 26, 1887 896
Mr. Bayard to Mr. Phelps, January 27, 1887 902
Mr. Bayard to Sir L. West, January 27, 1887 (with inclosures) 903
Sir L. West to Mr. Bayard, January 28, 1887 904
Sir L. West to Mr. Bayard, January 28, 1887 (with inclosure) 905
Mr. Bayard to Mr. Phelps, February 1, 1887 907
Mr. Bayard to Mr. Phelps, February 8, 1887 907
The Marquis of Salisbury to Mr. White, March 24, 1887 (with inclo-
sures) 908
Sir L. West to Mr. Bayard, April 4, 1887 (with inclosure) 918
Special instructions to fishery officers in command of fisheries' pro-
tection vessels, April 16, 1887 921
Sir L. West to Mr. Bayard, May 17, 1887 (with inclosures) 922
Mr. Bayard to Mr. Phelps, May 23, 1887 (with inclosures) 939
Mr. Bayard to Sir Charles Tupper, May 31, 1887 942
Sir Charles Tupper to Mr. Bayard, June, 1887 944
Mr. Bayard to Mr. Phelps, July 12, 1887 (with inclosure) 945
Sir L. West to Mr. Bayard, July 18, 1887 (with inclosures) 955
Mr. Bayard to Sir L. West. October 31, 1887 (with inclosure) 958
Mr. West to Mr. Bayard, April 25, 1888 (with inclosures) 960
Mr. West to Mr. Bayard, May 2, 1888 (with inclosure) 961
Mr. Bayard to Mr. West, May 4, 1888 962
Mr. West to Mr. Bayard, May 30, 1888 (with inclosure) 962
Period from 1905 to 1909:
Mr. Root to Sir H. M. Durand, October 12, 1905 964
Sir H. M. Durand to Mr. Root, October 14, 1905 964
Sir H. M. Durand to Mr. Root, October 14, 1905 965
Sir H. M. Durand to Mr. Root, October 19, 1905 965
Mr. Root to Sir H. M. Durand, October 19, 1905 966
Sir H. M. Durand to Mr. Root, October 20, 1905 970
Mr. Root to Sir H. M. Durand, October 20. 1905 971
Sir Edward Grey to Mr. Whitelaw Reid, February 2, 1906 (with
inclosure) 971
Mr. Root to Mr. Whitelaw Reid, June 30, 1906 978
Mr. Whitelaw Reid to Sir Edward Grey, July 20, 1906 985
Lord Elgin to Governor MacGregor, August 6, 1906 986
Lord Elgin to Governor MacGregor, August 8, 1906 986
Sir Edward Grey to Mr. Reid. August 14, 1906 987
Mr. Reid to Sir Edward Grey, August 16, 1906 988
Lord Elgin to Governor MacGregor, September 3, 1906 988
Lord Elgin to Governor MacGregor, September 3, 1906 989
Sir Edward Grey to Mr. Reid, September 3, 1906 989
Governor MacGregor to Lord Elgin, September 8, 1906 991
Governor MacGregor to Lord Elgin, September 15, 1906 991
XII CONTENTS OF THE APPENDIX.
SECTION III. — CORRESPONDENCE, DOCUMENTS, AND PAPERS — Continued. Page.
Subsequent to the treaty of 1818— Continued.
Period from 1905 to 1909— Continued.
Lord Elgin to Governor MacGregor, September 19, 1906 992
Lord Elgin to Governor MacGregor, September 19, 1906 992
Lord Elgin to Governor MacGregor, September 20, 1906 993
Governor MacGregor to Lord Elgin, September 21, 1906 995
Sir Edward Grey to Sir H. M. Durand, September 26, 1906 995
Lord Elgin to Governor MacGregor, September 29, 1906 996
Governor MacGregor to Lord Elgin, September 29, 1906 996
Lord Elgin to Governor MacGregor, October 1 , 1906 996
Sir Edward Grey to Sir H. M. Durand, October 1, 1906 997
Governor MacGregor to Lord Elgin, October 4, 1906 997
Memorandum communicated by the foreign office to Mr. Carter,
October 4, 1906 998
Governor MacGregor to Lord Elgin, October 5, 1906 998
Governor MacGregor to Lord Elgin, October 13, 1906 999
Lord Elgin to Governor MacGregor, October 23, 1906 999
Governor MacGregor to Lord Elgin, October 26, 1906 1000
Lord Elgin to Governor MacGregor, October 27, 1906 1000
Governor MacGregor to Lord Elgin, November 1, 1906 1000
Governor MacGregor to Lord Elgin, November 4, 1906 1001
Lord Elgin to Governor MacGregor, November 9, 1906 1001
Mr. Reid to Sir Edward Grey, November 15, 1906 (with in-
closure) 1002
Governor MacGregor to Lord Elgin, November 17, 1906 1002
Sir Edward Grey to Mr. Reid, June 20, 1907 1003
Mr. Reid to Sir Edward Grey, July 12, 1907 1007
Lord Elgin to Governor MacGregor, July 19, 1907 1008
Lord Elgin to Governor MacGregor, July 23, 1907 1 010
Lord Elgin to Governor General Grey, August 8, 1907 1011
Governor General Grey to Lord Elgin, August 14, 1907 1011
Governor MacGregor to Lord Elgin, August 30, 1907 1011
Lord Elgin to Governor MacGregor, August 31, 1907 1012
Lord Elgin to Governor General Grey, August 31, 1907 1013
Governor MacGregor to Lord Elgin, September 1, 1907 1013
Governor MacGregor to Lord Elgin, September 14, 1907 1014
Lord Elgin to Governor MacGregor, September 2, 1907 1014
Lord Elgin to Governor MacGregor, September 2, 1907 1015
Lord Elgin to Governor MacGregor, September 3, 1907 1015
Governor MacGregor to Lord Elgin, September 4, 1907 1016
Lord Elgin to Governor MacGregor, September 6, 1907 1016
Lord Elgin to Governor MacGregor, September 7, 1907 1017
Lord Elgin to Governor MacGregor, September 9, 1907 1018
Lord Elgin to Governor MacGregor, September 11, 1907 1019
Governor MacGregor to Lord Elgin, September 12, 1907 1019
Lord Elgin to Governor MacGregor, September 14, 1907 1020
Governor MacGregor to Lord Elgin, September 15, 1907 1020
Lord Elgin to Governor MacGregor, September 16, 1907 1020
Governor MacGregor to Lord Elgin, September 21, 1907 1021
Lord Elgin to Governor MacGregor, September 23, 1907 1022
Lord Elgin to Governor MacGregor, September 26, 1907 1022
CONTENTS OF THE APPENDIX. XH1
SECTION III. — CORRESPONDENCE, DOCUMENTS, AND PAPERS — Continued. Page.
Miscellaneous 1024
The charter of Massachusetts Bay, 1691 1024
Extracts from minutes of colonial legislative assemblies, miscellaneous
British-colonial and other correspondence, reports, etc 1040
Extracts from the minutes of the legislative assembly of Nova
Scotia, 1836 1040
Extracts from journal of the legislative assembly of Nova Scotia,
1843—
Lord Russell to Lord Falkland, April 9, 1841 1043
Under secretary of state to Mr. Stephen, April 2, 1841 1043
Lord Falkland to Lord Russell, April 28, 1841 1043
Case for opinion of law officers of Crown 1044
Lord Stanley to Lord Falkland, November 28, 1842 1046
Opinion of law officers of the Crown, August 30, 1841 1047
Mr. Crampton to Mr. Clayton, March 22, 1849 1049
Sir H. L. Bulwer to Mr. Webster, June 24, 1851 1052
Lord Elgin and Kincardine to Sir H. L. Bulwer, June 7, 1851
(with inclosures) 1053
Extracts from journal of the legislative assembly of Newfoundland,
1844—
Address to the Queen, April 24, 1844 1055
Extracts from journal of the legislative assembly of Newfoundland,
1845—
Report of the committee of the Newfoundland assembly ap-
pointed in 1845 to enquire into the state of the fisheries on
the banks and shores of Newfoundland 1058
Extracts from the minutes of the legislative assembly of New-
foundland, 1846-47 1069
Extracts from the minutes of the legislative assembly of New-
foundland, 1848-49 1072
Extracts from the journal of the legislative assembly of Nova
Scotia, 1853 —
Registrar of the vice-admiralty court to Provincial Secretary
Howe, August 12, 1852 1075
List of vessels seized and prosecuted from 1817-1851 1076
List showing places where seizures were made 1077
Vice-Admiral Seymour to Lieutenant-Governor Le Marchant,
August 23, 1852 (with inclosure) 1078
Lieutenant-Governor Le Marchant to Vice-Admiral Seymour,
mour, August 26, 1852 1079
Provincial Secretary Howe to Captain Laybold, August 26, 1852 1080
Captain Daly to Provincial Secretary Howe, August 28, 1852. 1080
Captain Dodd to Provincial Secretary Howe, August 29, 1852. 1081
Provincial Secretary Howe to Captain Daly, September 1, 1852. 1082
Captain Dodd to Provincial Secretary Howe, September 1, 1852. 1082
Extracts from the journal of the legislative assembly of Newfound-
land, 1864—
Duke of Newcastle to Governor Bannerman, August 3, 1863.. 1082
The Marquis of Salisbury to M. Waddington, July 9, 1889
(with inclosures) 1083
Decision in the case of the White Fawn ... 1099
XIV CONTENTS OF THE APPENDIX.
SECTION III. — CORRESPONDENCE, DOCUMENTS, AND PAPERS — Continued.
Miscellaneous — Continued. Page.
Opinion of Upham, United States commissioner, in case of schooner
Washington 1101
Portions of "Case of Her Majesty's Government" before the Fishery
Commission under the treaty of Washington of May 8, 1871 1109
Award of the Fishery Commission under the treaty of Washington,
May 8, 1871 1115
Beciprocal trade with British colonies 1116
Extract from Haliburton's "Historical and Analytical Account of
Nova Scotia, " published 1829 1116
British order in council, for regulating the commercial intercourse
between the United States and the British colonial possessions,
November 5, 1830. . .•. 1121
Act of Congress of May 29. 1830 1123
President's proclamation of October 5, 1830, relative to trade with
the British colonies : 1124
Extracts from the Revised Statutes of the United States, 1878, relat-
ing to the regulation of commerce and navigation 1126, 1300, 1301
Extracts from report on the principal fisheries of the American seas,
by Lorenzo Sabine 1130
Mr. Reynolds to the Secretary of State, September 18, 1909 1301
Extracts from annual reports of Canadian department of marine and
fisheries 1302
Geographical data 1307
PERIOD FROM 1871 TO 1905.
Earl of Kimberley to Lord Lisgar.
DOWNING STREET, 17th June , 1871.
MY LORD, — I have the honor to enclose, herewith, copies of the
Treaty signed at Washington, on May 8th, by the Joint High Com-
missioners, which has been ratified by Her Majesty and by the Presi-
dent of the United States, and of the Instructions to Her Majesty's
High Commissioners and Protocols of the Conferences held by the
Commission. The Dominion is, from its geographical position as the
immediate neighbor of the United States, so peculiarly interested in
the maintenance of cordial relations between that Republic and the
British Empire, that it must be a source of satisfaction to the Ca-
nadian Government, that Her Majesty has been able to conclude a
Treaty for the amicable settlement of differences which might have
seriously endangered the good understanding between the two
countries.
Moreover, the Rules laid down in Article VI, as to the international
duties of neutral governments are of special importance to the
Dominion which carries on such an extensive and increasing mari-
time commerce, and possesses such a considerable merchant navy.
But independently of the advantages which Canada must derive
from the removal of the causes of difference with the United States,
arising out of occurrences during the civil war, Her Majesty's Gov-
ernment believe that the settlement which has been arrived at of the
questions directly affecting British North America, cannot fail to be
beneficial to the Dominion. I need not refer to the well known
history of the Fishery question, further than to observe that ever
since the termination, by the British Government in consequence of
the war of 1812, of the liberty enjoyed under the Treaty of 1783, by
American citizens of fishing in the territorial waters of the British
Colonies, and the renunciation by the United States, in the Treaty
of 1818, of all claim to that liberty, this question has in different
forms been the subject of controversy with the United States. Her
Majesty's Government have always contended for the rights of the
Colonies, and they have employed the British Naval forces in the
protection of the Colonial fisheries; but they could not overlook the
angry feelings to which this controversy has given rise, and the
constant risk that in the enforcement of the exclusion of American
fishermen from the Colonial waters a collision might take place which
might lead to the most serious consequences, and they would have
been wanting in their duty, if they had not availed themselves of the
opportunity presented by the late negotiation to remove a cause of
640 COBRESPONDENCE, ETC.
perpetual irritation and danger to the relations of this country and
the Dominion with the United States.
The Canadian Government itself took the initiative in suggesting
that a Joint British and American Commission should be appointed,
with a view to settle the disputes which had arisen as to the interpre-
tation of the Treaty of 1818, but it was certain that however desir-
able it might be, in default of any complete settlement, to appoint
such a Commission, the causes of the difficulty lay deeper than any
question of interpretation, and the mere discussion of such points as
tne correct definition of bajrs could not lead to a really friendly
agreement with the United States. It was necessary, therefore, to
endeavor to find an equivalent which the United States might be
willing to give in return for the fishery privileges, and which Great
Britain, having regard both to Imperial and Colonial interests, could
properly accept. Her Majesty's Government are well aware that
the arrangement which would have been most agreeable to Canada
was the conclusion of a Treatv similar to the Reciprocity Treaty of
1854, and a proposal to this effect was pressed upon the United States
Commissioners, as you will find in the 36th Protocol of the Confer-
ences. This proposal was, however, declined, the United States Com-
missioners stating " that they could hold out no hope that the Con-
gress of the United States would give its consent to such a tariff ar-
rangement as was proposed, or to any extended plan of reciprocal free
admission of the products of the two countries." The United States
Commissioners did indeed propose that coal, salt and fish, should be
reciprocally admitted free, and lumber after the 1st of July 18T4;
but it is evident that looked at as a tariff arrangement this was a most
inadequate offer, as will be seen at once when it is compared with the
long list of articles admitted free under the Reciprocity Treaty.
Moreover, it is obvious from the frank avowal of the United States
Commissioners, that they only made this offer because one branch of
Congress had recently more than once expressed itself in favor of
the abolition of duties on coal and salt, and because Congress had par-
tially removed the duty from lumber, and the tendency of legislation
in the United States was towards the reduction of taxation and of
duties, so that to have ceded the Fishery rights in return for these
concessions would have been to exchange them for commercial ar-
rangements, which there is reason to believe may before long be made
without any such cession, to the mutual advantage of both the
Dominion and the United States ; and Her Majesty's Government are
bound to add that whilst in deference to the strong wishes of the
Dominion Government they used their best efforts to obtain a renewal
in principle of the Reciprocity Treaty, they are convinced that the
establishment of free trade between the Dominion and the United
States is not likely to be promoted by making admission to the fish-
eries dependent upon the conclusion of such a Treaty; and that the
repeal by Congress of duties upon Canadian produce on the ground
that a Protective Tariff is injurious to the country which imposes it,
would place the commercial relations of the two countries on a far
more secure and lasting basis than the stipulations of a Convention
framed upon a system of reciprocity. Looking, therefore, to all the
circumstances, Her Majesty's Government found it their duty to deal
PERIOD FROM 1871 TO 1905. 641
separately with the Fisheries, and to endeavor to find some other
equivalent; and the reciprocal concession of free fishery with free
import of fish and fish oil, together with the payment of such a sum
of money as may fairly represent the excess of value of the Colonial
over the American concession, seems to them to be an equitable solu-
tion of the difficulty. It is perfectly true that the right of fishery on
the United States coasts, conceded under Article XIX, is far less
valuable than the right of fishery in Colonial waters, conceded under
Article XVIII, to the United States, but on the other hand, it
cannot be denied that it is most important to the Colonial fishermen
to obtain free access to the American market for their fish and for
fish oil, and the balance of advantage on the side of the United States
will be duly redressed by the Arbitrators under Article XXII. In
some respects a direct money payment is perhaps a more distinct
recognition of the rights of the Colonies than a tariff concession, and
there does not seem to be any difference in principle between the ad-
mission of American fishermen for a term of years in consideration
of the payment of a sum of money in gross, and their admission under
the system of Licenses, calculated at so many dollars per ton, which
was adopted by the Colonial Government for several years after the
termination of the Reciprocity Treaty. In the latter case, it must
be observed, the use of the Fisheries was granted without any tariff
concession whatever on the part of the United States, even as to the
importation of fish.
Canada could not reasonably expect that this country should, for
an indefinite period, incur the constant risk of serious misundertand-
ing with the United States; imperilling, perhaps, the peace of the
whole Empire, in order to endeavor to force the American Govern-
ment to change its commercial policy; and Her Majesty's Govern-
ment are confident that, when the Treaty is considered as a whole,
the Canadian people will see that their interests have been carefully
borne in mind, and that the advantages, which they will derive from
its provisions, are commensurate with the concessions which they
are called upon to make. There cannot be a question as to the great
importance to Canada of the right to convey goods in bond through
the United States, which has been secured to her by Article XXIX;
and the free navigation of Lake Michigan, under Article XXVIII,
and the power of transhipping goods, under Article XXX, are valu-
able privileges which must not be overlooked in forming an estimate
of the advantages which Canada will obtain. Her Majesty's Govern-
ment have no doubt that the Canadian Government will readily
secure to the citizens of the United States, in accordance with Article
XXVII, the use of the Canadian Canals, as, by the liberal policy of
the Dominion, those canals are already opened to them on equal
terms with British subjects; and they would urge upon the Dominion
Parliament and the Legislature of New Brunswick, that it will be
most advisable to make the arrangement as to duties on lumber
floated down the St. John River, upon which the execution of Article
XXX as to the transhipment of goods, is made contingent.
The freedom to navigate the St. Lawrence, which is assured to the
United States by Article XXVI, has long existed in fact, and its
recognition by Treaty cannot be prejudicial to the Dominion, which
92909°— S. Doc. 870, 61-3, vol 3 2
642 CORRESPONDENCE, ETC.
moreover, obtains in return, the free use of certain rivers on the
Pacific side of the Continent.
I must not omit to notice that, by Article XXXIV., the dispute as
to the Island of St. Juan, is to be submitted to arbitration ; and pro-
vision has thus happily been made for the amicable termination of a
long-standing and difficult controversy at a time when, in conse-
quence of the union of British Columbia with the Dominion, this
boundary question has become matter of interest to the whole Con-
federation of British Provinces.
I have thus gone through those parts of the Treaty which imme-
diately touch the Dominion ; but a question of much moment remains
as to the course which should be taken during the present fishing
season, pending the enactment by the respective Legislatures of the
laws necessary to bring the Fishery Articles into operation.
I find that on the conclusion of the Reciprocity Treaty, in June,
1854, and previous to its ratification, the then American Secretary
of State (Mr. Marcy) expressed the hope of his Government that
American Fishermen would not be molested if they should at once
attempt to use the privileges granted by that Treaty. A despatch
was therefore addressed to the Governor of the North American
Colonies, recommending that the wish of the United States Govern-
ment should be acceded to, and that the American fishermen should
be immediately admitted to the Colonial fisheries. The result was that
the various Colonial Governments at once admitted the American
fishermen to the fisheries, although the Legislative Acts necessary to
give effect to the Treaty were not passed till late in the autumn. It-
is evidently most desirable that a similar course should be pursued on
the present occasion ; and you will perceive from the notes which have
passed between Sir E. Thornton and Mr. Fish, copies of which I
enclose, that the United States Government have made an application
similar to that which they made in 1854; and that Her Majesty's
Government have engaged to recommend to the Colonial Governments
that it should be acceded to. Her Majesty's Government are of
course aware that the Colonial Governments have no power to set
aside the fishery statutes by their own authority; but it is entirely
within their power to take no active steps to enforce those statutes
and to suspend the instructions to the Colonial Cruisers to exclude
American citizens from the fisheries, just as it is in the power of Her
Majesty's Government to suspend the action of Her Majesty's
Cruisers, although the Imperial Fishery Statute is still in force.
Her Majesty's Government have no desire whatever to attempt to
interfere with the entire right of the Colonial Legislatures to refuse
to pass the acts necessary to give effect to the Treaty, though they
would deeply deplore that a course which they believe would be most
impolitic should be taken ; but, on the other hand, they have too much
confidence in the wisdom of those free Assemblies, to anticipate any
such result; and they are confident that the Canadian Government
would be as desirous as Her Majesty's Government that no untoward
collision should occur during the present season which might preju-
dice the fair consideration of the Treaty, both by the American Con-
gress and the Colonial Parliaments; and that, on a full consideration
of the circumstances, they will see that the responsibility of incurring
PERIOD FROM 1871 TO 1905. 643
the risk of such a collision would be far heavier than that of remov-
ing, so far as they have the power, the obstacles to the provisional
enjoyment by American citizens of the privileges which it is intended
by the Treaty to secure to them for a longer time.
I cannot conclude this despatch without expressing the gratification
which it has given Her Majesty's Government to have had the
valuable assistance of Sir J. Macdonald, in the negotiation of this
Treaty. Whatever view may be taken in Canada of the merits of the
Treaty, it must be an unqualified cause of satisfaction to the Canadians
to know that they were represented by a Statesman holding so dis-
tinguished a position in the Canadian Government, and so well able,
from his knowledge and experience, to put forward with the greatest
force and authority the arguments best suited to promote the claims
and interests of the Dominion.
I have, etc.
(Signed) KIMBERLET.
Governor-General The Right-Honorable LORD LISGAR,
G. C. B., etc., etc., etc.
Mr. Fish to Sir Edward Thornton.
DEPARTMENT OF STATE,
Washington, June %4<> 1871.
SIR: Much anxiety is expressed and made known to this Depart-
ment on the part of those concerned in the mackerel fishery near the
coasts of the British provinces, the season for which is about to open.
Though aware that they cannot yet technically claim the privileges
and immunities promised to them in the treaty of Washington, they
were in hopes that, through the forebea ranee of Her Majesty's author-
ities and those of the colonies, they might no longer be subjected to
the annoyances to which they have hitherto been liable. You are
aware that I have had reason to share in those hopes. Believing, as
I firmly do, that if they should be disappointed, much irritation
would be occasioned, which it is desirable should be avoided, and
apprehending that the legislation on the part of the United States,
stipulated for in the treaty, might otherwise at least be retarded, I
pray you again to move the respective imperial or colonial authorities,
that nothing practicable or reasonable may be omitted which might
tend to the result desired.
If you should think favorably of this request, you will pardon me
for adding that it is highly important that it should be complied with
as soon as may be convenient.
I have, &c. HAMILTON FISH.
Sir Edward Thornton to Mr. Fish.
WASHINGTON, June 26, 1871.
SIR : I have the honor to acknowledge the receipt of your note of
the 24th instant, and to assure you that as far as the action of Her
644 CORRESPONDENCE, ETC.
Majesty's naval officers or of those of the Canadian government is
concerned, there is no cause for anxiety to citizens of the United
States engaged in the fisheries in the neighborhood of the British
provinces, so long as they may respect the laws upon the subject now
in force. The tenor of the instructions issued to those officers both
by Her Majesty's government and by that of the Dominion are of
the most liberal nature, and though they continue to hold the opinion
that under the treaty of 1818 United States fishermen are prohibited
from frequenting colonial ports and harbors for any other purposes
but for shelter, repairing damages, purchasing wood, and obtaining
water, such prohibition will not be enforced during the present season,
and they will be allowed to enter Canadian ports for the purposes of
trade, and of transshipping fish and procuring supplies, nor will they
be prevented from fishing outside of the three-mile limit in bays the
mouth of which is more than six miles wide.
It is to be hoped, however, that citizens of the United States will,
on their part, contribute to the prevention of untimely collisions, by
refraining from encroaching, for the purpose of fishing, upon those
waters from which, by the treaty of 1818 and by the laws of Groat
Britain and Canada, they are excluded, until the legislation for
insuring to them the privileges and immunities agreed upon by the
treaty of the 8th ultimo shall have been carried out.
I have the honor, &c.
EDW. THORNTON.
Mr. Pakcnliam to Mr. Davis.
WASHINGTON, July %6, 1871.
(Received July 27.)
SIR: I have the honor to inform you that intelligence has reached
me from the lieutenant governor of Prince Edward Island, to the
effect that the government yesterday decided not to enforce the fishery
laws during the present season, and pending the consideration of the
treaty by the legislature of that portion of Her Majesty's dominions.
I have the honor, &c,
F. J. PAKENIIAM.
Mr. Davis to Mr. Pakcnliam.
DEPARTMENT or STATE,
Washington, August 9, 1871.
MY DEAR MR. PAKENHAM : Dennis C. Murphy, master of the Lizzie
A. Tarr, of Gloucester, has stated, under oath, facts in regard to the
action of Her Majesty's naval officers toward him on the Newfound-
land coast which lead me to apprehend that they are not acting in
accordance with wishes and instructions of Her Majesty's govern-
ment, so far as we are able to judge of those wishes and instructions
from the correspondence which has taken place since the conclusion
of the treaty of Washington.
PERIOD FROM 1871 TO 1905. 645
The facts stated are that, on the 7th of June last, the Lizzie A. Tarr,
being bound on a fishing voyage to the Banks, entered Lambley Har-
bor, Grand Jarvis, Newfoundland, to buy bait. She was boarded by
a boat from the British war steamer Danae, and was ordered to leave,
and refused the privilege of purchasing fresh bait. Captain Murphy
inquired as to the authority of such action, but got no reply. He
avers that when the British officers tripped the seine then in the hands
of English fishermen, and let out the herring, so that no bait could be
sold, saying to the fishermen, " What are you doing? If I catch you
selling bait to Yankees I will cut up your seine. Where are you to
get bread next winter?" Captain Murphy then left the harbor, but as
the wind began to blow and rain commenced, he went back for shelter.
A boat from the Danae was lying in wait for him. The officers came
on board and showed him a written order from the captain to seize
the Lizzie A. Tarr, against which Murphy protested, claiming the
right of shelter, but was required to agree in writing to go out at day-
light. Murphy declares that this action caused a delay of three weeks,
and a loss to all concerned of not less than $2,000.
I would be glad if you would bring the case to the attention of the
proper authorities, with a view to the adoption of a more friendly and
hospitable treatment of our fishermen, if such conduct shall prove to
have been manifested as is reported by Captain Murphy.
Faithfully, yours,
J. C. B. DAVIS,
Acting Secretary.
Mr. Evarts to Mr. Welsh.
No. 33.] DEPARTMENT OF STATE,
Washington, March 2, 1878.
SIR: Complaints have reached the department of serious interfer-
ence with American fishermen engaged during the present season in
the herring fishery on the coast of Newfoundland, especially in the
neighborhood of Long Harbor. The complaints come through vari-
ous sources; first, from the United States consuls in that province;
the consuls confining themselves, however, to general statements,
based on representations made to them by fishermen immediately
affected at the time of the occurrences, which form the grounds of
complaints. Still more recently, however, these complaints have been
preferred in a more specific manner, supported by affidavits of the
masters of several fishing vessels owned and fitted out at Gloucester,
Mass. From these statements it appears that about the 6th of Jan-
uary last no less than eight schooners from the above-named port,
while engaged in the herring fishery at and in the neighborhood of
Long Harbor, were attacked by the inhabitants to the number in one
instance of 60 men, and in another 200 or more, and their seines,
which were set and in most cases full of fish, cut and destroyed, and
the fish, in one case to the amount of 5,000 barrels, and in others only
less in quantity and value, scattered and run out to sea, resulting,
beside the great loss of property, in the vessels being obliged to return
to their home port in ballast, and also to abandon their fishing enter-
prise for the season.
646 CORKESPONDENCE, ETC.
When it is remembered at what considerable expense the prepara-
tions are made for a season's fishing in these northern latitudes, and
that very many of the men, both masters and mariners, embark their
all in the enterprise, the serious character of these losses may be par-
tially understood.
Instructions have been sent to the consuls to transmit fuller in-
formation on the subject, and this will be furnished you as soon as
it shall have been received. In the mean time it is deemed advisable
to instruct you to bring the matter to the attention of Her Majesty's
Government, and to request that it will cause an investigation to be
made into the alleged facts of the case, and to adopt such measures
as may be found necessary, not only to put an end to the evil, but also
to prevent a recurrence of acts which, in addition to the injuries and
losses to individuals, may have a tendency to complicate the good re-
lations which so happily subsist between this government and that
of Her Britannic Majesty.
I am, &c., W. M. EVARTS.
Mr. Welsh to Earl of Derby.
LEGATION OF THE UNITED STATES,
London, March 19, 1878.
MY LORD: I have the honor to acquaint your lordship that com-
plaints have reached the Department of State at Washington of seri-
ous interference with American fishermen engaged during the present
season in the herring fishery on the coast of Newfoundland, especially
in the neighborhood of Long Harbor. The complaints come from
various sources : first, from the United States consuls in that province ;
the consuls confining themselves, however, to general statements based
on representations made to them by fishermen immediately affected
at the time of the occurrences which form the grounds of the com-
plaints. Still more recently, however, these complaints have been
preferred in a more specific manner, supported by affidavits of the
masters of several fishing vessels owned and fitted out at Gloucester,
Mass.
From these statements it appears that, about the 6th of January
last, no less than eight schooners from the above-named port, while
engaged in the herring fishery at and in the neighborhood of Long
Harbor, were attacked by the inhabitants to the number in one in-
stance of 60 men, and in another 200 or more, and their seines, which
were set, and in most cases full of fish, cut and destroyed, and the
fish in one case to the amount of 5,000 barrels, and in others only less
in quantity and value, scattered and run out to sea, resulting, besides
the great loss of property, in the vessels being obliged to return to
their home port in ballast, and also to- abandon their fishing enter-
prise for the season.
When it is remembered at what considerable expense the prepara-
tions are made for a season's fishing in these northern latitudes, and
that very many of the men, both masters and mariners, embark their
all in the enterprise, the serious character of these losses may be
partially understood.
PERIOD PROM 18*71 TO 1905. 647
Instructions have been sent to the consuls to transmit fuller infor-
mation on the subject, and I am advised that this will be furnished to
me so soon it shall have been received by the Department of State.
In the mean time, I am instructed to bring the matter to the atten-
tion of Her Majesty's Government, and to request that it will cause
an investigation to be made into the alleged facts of the case, and
adopt such measures as may be found necessary not only to put an
end to the evil, but also to prevent a recurrence of acts which, in
addition to the injuries and losses by individuals, may have a tendency
to complicate the good relations which so happily subsist between the
Government of the United States and that of her Britannic Majesty.
I have, &c.
JOHN WELSH.
Lord Derby to Mr. Welsh.
FOREIGN OFFICE, March 85, 1878.
SIR: I have the honor to acknowledge the receipt of your letter of
the 19th instant, stating that you have been instructed by your gov-
ernment to make a representation to Her Majesty's Government rela-
tive to the differences which have arisen between British and United
States fishermen on the coast of Newfoundland, and I have to in-
form you in reply, that the matter shall receive due consideration.
I have, &c.,
DERBY.
Mr. F. W. Seward to Mr. Welsh.
No. 55.] DEPARTMENT OF STATE,
Washington, April 6, 1878.
SIR : Referring to instruction No. 33, addressed to you by this de-
partment, under date of 2d March last, in relation to the alleged
interference by the inhabitants of Long Harbor, Newfoundland, with
certain Americans engaged in the herring fishery there, I now inclose
for your information, copies of further evidence in the matter, taken
at St. John's, which has been received from the consul of the United
States at that place.
I am, &c., F. W. SEWARD,
Acting Secretary.
Mr. Evarts to Mr. Welsh.
No. 67.] DEPARTMENT OF STATE,
Washington, April 26, 1878.
SIR : Referring to the instruction formerly addressed to you in rela-
tion to the interference, by certain fishermen of Newfoundland, with
Americans engaged in the herring fishery at Fortune Bay, during the
past winter, I now inclose for your further information, a copy of a
648 CORRESPONDENCE, ETC.
dispatch of the 2d instant, No. 66, on the subject, from the commer-
cial agent of the United States at St. Pierre, Miquelon.
I am, &c.,
WM. M. EVARTS.
[Jnclosure.]
Mr. McLauglilin to Mr. Seward.
No. 66.] COMMERCIAL AGENCY, U. S. A.,
St. Pierre, Miquelon, April 8, 1878.
SIR : I have the honor to acknowledge receipt of your dispatch (No.
49) under date 21st February, from which I learn that a report has
been made to the Department of State to the effect that a number
of American vessels had been obliged to leave Fortune Bay on account
of the antagonism of the fishermen in that bay, who " cut their cables
and set their vessels adrift ; " and further, that " some fourteen or
more vessels (American) had been compelled by the natives to retire
from the bay " without their cargoes, and that " Captain Jacobs, of
schooner Moses Adams, had been compelled to defend himself and
vessel from the assaults which were made upon him."
I beg, very respectfully, to observe that Long Harbor in Fortune
Bay, the locality in which the difficulties occurred, is distant from St.
Pierre about 90 miles, and that during the winter months there is
almost a complete cessation of communication between that harbor
and St. Pierre, and that no intimation of the matters alluded to in
your dispatch came to my knowledge until through the Newfound-
land and Nova Scotian journals, long after the difficulties occurred,
which will account for my not having made it my duty to report to
the Department on the subject.
Since the reception of your dispatch, which came to hand on 21st
March, I have been enabled to obtain information from several par-
ties, and among others, from an eye-witness to the matter in which.
Captain Jacobs was an actor, and the following (or as nearly as I
can obtain it) is, I believe, reliable information:
On Sunday, January 13, three crews of American schooners, assisted
by some Newfoundlanders, put out their seines to haul herring; they
all succeeded in getting large quantities in their seines, when the
fishermen of the bay (Newfoundlanders) gathered together and went
to each of the captains and demanded that they should let the her-
ring go out of their seines, under the pretext that as they (the
natives) did not seine on the Sabbath, and as it was contrary to law,
they would not allow it to be done by foreigners. The first captain
they addressed (Capt. James McDonald, of schooner F. A. Smith)
acceded to their demands and took up his seine; the second, Captain
Jacobs, of schooner Moses Adams, had in the meantime run his her-
ring into another seine belonging to a seine-master (Mr. Farroll, of
Fortune Bay, who was working with him, and which was moored
inside of his own) ; he took up his own seine into his boat, but refused
to let the herring out of the other one. On some threatening lan-
guage beinpr used by the fishermen, he drew a revolver and declared
he would shoot the first man who would seek to injure him or his
seine; he finally rowed aboard his schooner, which was moored at a
PERIOD FROM 1871 TO 1905. 649
short distance. The natives then went to Captain Dago, of the
schooner New England, and demanded that he should trip his seine
and let out the herring; this he firmly refused to do. The fishermen
then let the herring out and hauled the seine ashore and run it up the
beach, tearing and breaking it in pieces.
From what I can learn, the statement that the schooners were
obliged to leave the bay on account of the antagonism of the natives,
is inexact, as they still continued to try during the week-days with the
same seines (except Captain Dago's, which was destroyed) for a fort-
night or more after the before-related occurrences without any hin-
derance whatever on the part of the natives, and it is asserted that it
was owing to the exceedingly mild season and consequent impossi-
bility to freeze herring, for which purpose the schooners alluded to
were fitted out, that they left without their cargoes, and that consid-
erable herring had been taken from time to time, but after having
tried to freeze them, they were repeatedly obliged to sell them to the
vessels loading salt-herring. This reason appears to be very likely
the correct one, as I can hear no account whatever of any vessels
having had their cables cut, or of any other serious difficulty having
occurred other than the one alluded to 13th January.
In the winter of 1876-'77 a similar case occurred, one of the Ameri-
can seines being put out on Sunday by the crew, in charge of a New-
foundlander as seine-master, Jeremiah Petites. The people of the
bay demanded that the seine should not be hauled, and it was accord-
ingly tripped and taken up by the owners, no further difficulty
occurring.
I make these observations in order to show as fully as possible the
probably real state of the matter, and under the impression from
all I can hear that the reports made to the department, and as related
in your dispatch, are more or less incorrect. I think there exists a
very decided feeling of hostility on the part of the Newfoundlanders
to the use of the large seines by American fishermen in their waters,
but have no reason to believe that any action has ever been taken to
prevent their hauling or to injure them in any way, except when haul-
ing on Sunday ; at the same time it is quite probable that they have
seized on the occasion thus offered to show their dislike to seines being
used by Americans in competition with their own.
I have the honor to be, sir, very respectfully, etc.,
W. F. McLAUOHLTN,
Vice Commercial Agent, United /States of America.
Lord Salisbury to Mr. Hoppin.
FOREIGN OFFICE, May 3, 1878.
SIR: T referred to Her Mnjesty's secretary of state for the colonies
Mr. Welsh's letter of the 19th of March, upon the subject of the dis-
putes which had taken place between British and United States fish-
ermen on the coast of Newfoundland, and I have the honor to acquaint
you that I am informed that inquiries are being instituted into the
matter both by the authorities of Newfoundland and by the senior
650 CORRESPONDENCE, ETC.
naval officer on the station, on learning the result of which I shall
have the honor of addressing a further communication to you.
I have, &c.,
SALISBURY.
Mr. F. W. Seward to Mr. Welsh.
No. 125.] DEPARTMENT OF STATE,
Washington, August 13, 1878.
SIR : Referring to Mr. Hoppin's dispatch No. 5, of the 4th of May
last, in regard to the interference by certain inhabitants of the coast
of Newfoundland with American fishermen, in which it was stated
that an investigation was being made into the matter by the colonial
authorities, and that the result thereof would be communicated to the
legation, I desired to be informed, in the absence of further intelli-
gence from you upon the subject, whether you have received any addi-
tional particulars from the British Government. If not, you are
instructed to request Her Majesty's Government to advise you of the
progress of the inquiry. You will transmit whatever information
may be obtained to the Department.
I am, &c., F. W. SEWARD,
Acting Secretary.
Lord Salisbury to Mr. Welsh.
FOREIGN OFFICE, August 23, 1878.
SIR: Her Majesty's Government have had under their considera-
tion your letter of the 19th of March, making representations relative
to certain disturbances which occurred in January last, between Brit-
ish and United States fishermen at Fortune Bay, on the coast of
Newfoundland, and requesting, in accordance with the instructions
of your government, that an investigation might be made into the
alleged facts of the case; and I have now the honor to transmit to
you, for your information and for communication to your govern-
ment, the accompanying copy of a report drawn up by Captain Suli-
van, R. N., of Her Majesty's ship Sinus, the officer intrusted with the
duty of instituting an inquiry into the matter on the spot.
You will perceive that the report in question appears to demon-
strate conclusively that the United States fishermen on this occasion
had committed three distinct breaches of the law, and that no vio-
lence was used by the Newfoundland fishermen except in the case of
one vessel whose master refused to comply with the request which was
made to him that he should desist from fishing on Sunday, in viola-
tion of the law of the colony, and of the local custom, and who threat-
ened the Newfoundland fishermen with a revolver, as detailed in para-
graphs five and six of Captain Sulivan's report.
I have the honor to be, &c., SALISBURY.
PERIOD FROM 1871 TO 1905. 651
[Appendix.]
Report on the differences that arose between British and United
States -fishermen in January, 1878, by Capt. George Lydiaard
Sulivan, of her Majesty^s ship Sirius.
Having carefully weighed the evidence given on oath before me
by Newfoundland fishermen present at the time, together with that
inclosed in the correspondence forwarded for my perusal, I am of
opinion —
1. That the Americans were using seines for catching herring on
the 6th of January, 1878, in direct violation of Title XXVII, chapter
102, section 1, of the consolidated statutes of Newfoundland, viz:
" No person shall haul or take herring by or in a seine or other such
contrivance on or near any part of the coast of this colony or of its
dependencies, or in any of the bays, harbors, or other places therein,
at any time between the 20th day of October and the 25th day of
April."
2. That the American captains were setting and putting out seines
and hauling and taking herring on Sunday, the 6th January, in
direct violation of section 4, chap. 7, of the act passed 26th April,
1876. entitled " An act to amend the law relating to the coast fisher-
ies," viz : " No person shall, between the hours of twelve o'clock on
Saturday night and twelve o'clock on Sunday night, haul or take any
herring, caplin, or squib with net, seines, bunts, or any such contriv-
ance for the purposes of such hauling or taking."
3. That they were barring fish in direct violation of the contin-
uance of the same act, Title XXVII. chap. 102, section 1, of the con-
solidated statutes of Newfoundland, " or at any time use a seine or
other contrivance for the catching or taking of herrings, except by
way of shooting and forthwith hauling the same."
4. That, contrary to the terms of the Treaty of Washington, in
which it is expressly provided that they do not interfere with the
rights of private property or with British fishermen in the peace-
able use of any part of the said coasts in their occupancy for the
same purpose (see article 18 of the above-named treaty), they were
fishing illegally, interfering with the rights of British fishermen and
their peaceable use of that part of the coast then occupied by them,
and of which they were actually in possession — their seines and boats,
their huts, gardens, and land granted by government being situated
thereon.
5. It is distinctly shown in the evidence that the cause of the dif-
ference commenced with the Americans by their persisting in shoot-
ing their seines on the Sunday, as the Englishmen who worked for
them would not do it on that day, not only on account of its being
illegal, but of their religious regard for the Sabbath, which is always
strictly kept by them, and, although it must be observed that the
result of this illegal fishing would have been that the Americans
would have secured the whole of the herring in the bay on that day,
to the exclusion of the rights and fair chances of all the others during
the week, yet there is no evidence to prove that this or anything else
652 CORRESPONDENCE, ETC.
but the fact of its being Sunday and the law and custom among
themselves regarding it prompted them to demand that the seines
should be withdrawn.
6. It is shown by the evidence of all those witnesses present at the
time when the Americans were remonstrated with, and told to take
their seines up prior to any serious steps being taken, and it is also
distinctly proved that no violence was resorted to until after the
exasperating conduct of Captain Jacobs, the American master of a
schooner concerned in this illegal fishing, who threatened them with
a revolver if they prevented him or interfered with his seine.
7. It does not appear that the native fishermen were aware of the
illegality of hauling a seine in the month of January. It is, there-
fore, to be presumed that the Americans were also ignorant of that
law, although their ignorance can not exonerate them from the
breach, nor does it exonerate John Hickey, an Englishman, who is
charged with the same offense, and whom it is iny intention to
summon before me to answer to that charge.
8. The statement of the Americans that they were compelled to
leave the harbor and leave off fishing is entirely without foundation,
which is proved by the evidence of those examined before me, among
whom was Mr. Snellgrove, collector of customs, who was there a
week after the occurrence, and communicated with them, and by the
evidence of others to the effect that they remained for about a fort-
night or more " until the herring slacked," and, with respect to their
loss of the haul of herring by the seine being emptied, the fish were
not their lawful property, having been illegally caught.
In support of this view of the conduct of the Americans, I am not
only borne out by the evidence of the Fortune Bay fishermen, who
made their statements in a remarkably frank and straightforward
manner, but by the self-conflicting evidence of those very Americans
themselves, whose depositions given on oath show them to have been
illegally fishing, and who were liable thereby to the forfeiture of their
seines, nets, &c., by chap. 102, section 12, of the consolidated statutes.
GEORGE L. SULIVAN,
Captain and Senior Officer.
Mr. Evarts to Mr. Welsh.
No. 150.] DEPARTMENT OF STATE,
Washington, September %8, 1878.
SIR: I received in due course your dispatch of August 24 ultimo,
inclosing Lord Salisbury's reply of the British Government to the
representations that had been made to it as early as March last by
you, under instructions from the Department.
I must understand Lord Salisbury's note, accompanying the copy
of Captain Sulivan's report, which he communicates to this govern-
ment, as adopting that naval officer's conclusions of fact respecting
the violent injuries which our fishing-fleet suffered at the hands of the
PEEIOD FROM 1871 TO 1905. 653
Newfoundland fishing population at Fortune Bay, in January of this
year, as the answer which Her Majesty's Government makes to the
representations laid before it on our part, verified by the sworn state-
ments of numerous and respectable witnesses.
His lordship has not placed in our possession the proofs or depo-
sitions which form the basis of Captain Sulivan's conclusions of fact,
and I am unable, therefore, to say whether, upon their consideration,
the view which this government takes of these transactions, upon the
sworn statements of our own respectable citizens, would be at all
modified. In the absence of these -means of correcting any mistakes
or false impressions which our informants may have fallen irto in
their narrative of the facts, it is impossible to accept Captain !uli-
van's judgment upon undisclosed evidence as possessing judicial
weight.
You will, therefore, lay before Her Majesty's Government the de-
sire which this government feels to be able to give due weight to this
opposing evidence, before insisting upon the very grave view of these
injuries which, at present, its unquestionable duty to the interests
which have suffered them, and its confidence in the competency and
sobriety of the proofs in our possession, compels this government to
take. Should Her Majesty's Government place a copy of the evi-
dence upon which Captain Sulivan bases his report in your hands, you
will lose no time in transmitting it for consideration. I regret that
any further delay should thus intervene to prevent ah immediate
consideration of the facts in the matter by the two governments in
the presence of the same evidence of those facts for their scrutiny and
judgment.
But a careful attention to Lord Salisbury's note discovers what must
be regarded as an expression of his views, at least, of the authority of
provincial legislation and administrative jurisdiction over our fish-
ermen within the three-mile line, and of the restrictive limitations
upon their rights on these fishing-grounds under the Treaty of Wash-
ington. Upon any aspect of the evidence, on one side and the other,
as qualifying the violent acts from which our fishing-fleet has suf-
fered at the hands of the Newfoundland coast-fishermen, the views
thus intimated seem to this Government wholly inadmissible, and do
not permit the least delay on our part in frankly stating the grounds
of our exception to them.
The report of Captain Sulivan presents, as a justificatory support
of the action of the Newfoundland shore-fishermen, in breaking up
the operations of our fishing-fleet inside the three-mile line, at the
times covered by these transactions, the violation of certain municipal
legislation of the Newfoundland Government which, it is alleged, our
fishermen were in the act of committing when the violent interrup-
tion of their industry occurred. I do not stop to point out the serious
distinction between the official and judicial execution of any such
laws and the orderly enforcement of their penalties after solemn trial
of the right, and the rage and predominant force of a volunteer multi-
tude driving off our peaceful occupants of these fishing grounds
pursuing their industry under a claim of right secured to them by
654 CORRESPONDENCE, ETC.
treaty. I reserve this matter for a complete examination when the
conflicting proofs are in my possession.
I shall assume, for my present purpose, that the manner of exerting
this supposed provincial authority was official, judicial, and unexcep-
tional.
I will state these justifications for the disturbance of our fishing-
fleet in Captain Sulivan's own language, that I may not even inad-
vertently impute to Lord Salisbury's apparent adoption of them any
greater significance than their very language fairly imports.
Captain Sulivan assigns the following violations of law by our
fishermen as the grounds of rightful interference with them on the
occasion in question :
" 1st. That the Americans were using seines for catching herring on
the 6th of January, 1878, in direct violation of Title XXVII, chap-
ter 102, section 1, of tne consolidated statutes of Newfoundland, viz :
' No person shall haul or take herring by or in a seine or other such
contrivance on or near any part of the coast of this colony or of its
dependencies, or in any or the bays, harbors, or other places therein,
at any time between the 20th day of October and the 25th day of
April.'
" 2d. That the American captains were setting and putting out
seines and hauling and taking herring on Sunday, the 6th January,
in direct violation of section 4, chapter 7, of the act passed 26th April,
1876, entitled 'An act to amend the law relating to the coast fisheries,'
viz : ' No person shall, between the hours of twelve o'clock on Satur-
day night and twelve o'clock on Sunday night, haul or take any her-
ring, caplin, or squid, with net, seines, bunts, or any such contrivance
for the purpose of such hauling or taking.'
" 3d. That they were barring fish in direct violation of the continu-
ance of the same act, Title XXVII, chapter 102, section 1, of the
consolidated statutes of Newfoundland, ' or at any time use a seine
or other contrivance for the catching or taking of herrings, except by
way of shooting and forthwith hauling the same.'
" 4th. That contrary to the terms of the Treaty of Washington, in
which it is expressly provided that they do not interfere with the
rights of private property or with British fishermen in the peaceable
use of any part of the said coasts in their occupancy for the same
purpose (see Article XVIII, of the above-named treaty), they were
fishing illegally, interfering with the rights of British fishermen and
their peaceable use of that part of the coast then occupied by them,
and of which they were actually in possession — their seines and boats,
their huts, gardens, and land granted by government being situated
thereon."
The facts which enter into the offenses imputed under the first,
second, and third heads of Captain Sulivan's statement, and such
offenses thus made out, would seem to be the only warrant for his
conclusion under his fourth head, that the United States fishermen
have exceeded their treaty right, and in their actual prosecution of
their fishing were, when interrupted by the force complained of, inter-
fering with the rights of private property or with British fishermen
in the peaceable use of that part ol the coast then being in their
occupancy for the same purpose, contrary to the proviso of Article
XVIII oJE the Treaty of Washington.
PERIOD FROM 1871 TO 1905. 655
It is no part of my present purpose to point out that this alleged
infraction of the reserved rights of the local fishermen does not justify
the methods of correction or redress used to drive off our fishermen
and break up their prosecution of the fishing. This may be reserved
also for discussion when both governments have a fuller knowledge
of the actual circumstances of the transaction.
In transmitting to you a copy of Captain Sulivan's report, Lord
Salisbury says: "You will perceive that the report in question ap-
pears to demonstrate conclusively that the United States fishermen on
this occasion had committed three distinct breaches of the law."
In this observation of Lord Salisbury, this government cannot fail
to see a necessary implication that Her Majesty's Government con-
ceives that in the prosecution of the right of fishing accorded to the
United States by Article XVIII of the treaty our fishermen are sub-
ject to the local regulations which govern the coast population of
Newfoundland in their prosecution of their fishing industry, what-
ever those regulations may be, and whether enacted before or since
the Treaty of Washington.
The three particulars in which our fishermen are supposed to be
constrained by actual legislation of the province cover in principle
every degree of regulation of our fishing industry within the three-
mile line which can well be conceived. But they are, in themselves,
so important and so serious a limitation of the rights secured by the
treaty as practically to exclude our fishermen from any profitable
pursuit of the right, which, I need not add, is equivalent to annulling
or cancelling by the Provincial Government of the privilege accorded
by the treaty with the British Government.
If our fishing-fleet is subject to the Sunday laws of Newfound-
land, made for the coast population ; if it is excluded from the fishing
grounds for half the year, from October to April ; if our " seines and
other contrivances " for catching fish are subject to the regulations
of the legislature of Newfoundland, it is not easy to see what firm or
valuable measure for the privilege of Article XVIII, as conceded to
the United States, this government can promise to its citizens under
the guaranty of the treaty.
It would not, under any circumstances, be admissible for one gov-
ernment to subject the persons, the property, and the interests of its
fishermen to the unregulated regulation of another government upon
the suggestion that such authority will not be oppressively or ca-
priciously exercised, nor would any government accept as an ade-
quate guaranty of the proper exercise of such authority over its
citizens by a foreign government, that, presumptively, regulations
would be uniform in their operation upon the subjects of both gov-
ernments in similar case. If there are to be regulations of a common
enjoyment, they must be authenticated by a common or joint au-
thority.
But most manifestly the subject of the regulation of the enjoyment
of the shore fishery by the resident provincial population, and of the
inshore fishery by our fleet of fishing-cruisers, does not tolerate the
control of so divergent and competing interests by the domestic
legislation of the provinces. Protecting and nursing the domestic
interest at the expense of the foreign interest, on the ordinary mo-
tives of human conduct, necessarily shape and animate the local
656 CORRESPONDENCE, ETC.
legislation. The evidence before the Halifax Commission makes it
obvious that to exclude our fishermen from catching bait, and thus
compel them to go without bait, or buy bait at the will and price of
the provincial fishermen, is the interest of the local fishermen, and
will be the guide and motive of such domestic legislation as is now
brought to the notice of this Government.
You will therefore say to Lord Salisbury that this Government
can not but express its entire dissent from the view of the subject
that his lordship's note seems to indicate. This Government con-
ceives that the fishery rights of the United States, conceded by the
Treaty of Washington, are to be exercised wholly free from the
restraints and regulations of the statutes of Newfoundland, now set
up as authority over our fishermen, and from any other regulations
of fishing now in force or that may hereafter be enacted by that
government.
It may be said that a just participation in this common fishery by
the two parties entitled thereto may, in the common interest of pre-
serving the fishery and preventing conflicts between the fishermen,
require regulation by some competent authority. This may be con-
ceded. But should such occasion present itself to the common appre-
ciation of the two Governments, it need not be said that such com-
petent authority can only be found in a joint convention that shall
receive the approval of Her Majesty's Government and our own.
Until this arrangement shall be consummated, this Government must
regard the pretension that the legislation of Newfoundland can reg-
ulate our fishermen's enjoyment of the treaty right as striking at the
treaty itself.
It asserts an authority on one side, and a submission on the other,
which has not been proposed to us by Her Majesty's Government, and
has not been accepted by this Government. I can not doubt that Lord
Salisbury will agree that the insertion of any such element in the
Treaty of Washington would never have been accepted by this Gov-
ernment, if it could reasonably be thought possible that it could have
been proposed by Her Majesty's Government. The insertion of any
such proposition by construction now is equally at variance with the
views of this Government.
The representations made to this Government by the interests of
our citizens affected leave no room to doubt that this assertion of
authority is as serious and extensive in practical relations as it is in
principle. The rude application made to the twenty vessels in For-
tune Bay of this asserted authority, in January last, drove them from
the profitable prosecution of their projected cruises. By the same
reason, the entire inshore fishery is held by us upon the same tenure
of dependence upon the parliament of the Dominion or the legisla-
tures of the several Provinces.
I cannot but regret that this vital question has presented itself so
unexpectedly to this Government, and at a date so near the period at
which this Government, upon a comparison of views with Her
Majesty's Government, is to pass upon the conformity of the pro-
ceedings of the Halifax Commission with the requirements of the
Treaty of Washington. The present question is wholly aside from
PERIOD FROM 1871 TO 1905. 657
the considerations bearing upon that subject, and which furnishes the
topic of my recent dispatch.
In the opinion of this Government, it is essential that we should at
once invite the attention of Lord Salisbury to the question of pro-
vincial control over the fishermen of the United States in their
prosecution of the privilege secured to them by the treaty. So grave
a question, in its bearing upon the obligations of this Government
under the treaty, makes it necessary that the President should ask
from Her Majesty's Government a frank avowal or disavowal of
the paramount authority of Provincial legislation to regulate the
enjoyment by our people of the inshore fishery, which seems to be
intimated, if not asserted, in Lord Salisbury's note.
Before the receipt of a reply from Her Majesty's Government, it
would be premature to consider what should be the course of this
Government should this limitation upon the treaty privileges of the
United States be insisted upon by the British Government as their
construction of the treaty.
You will communicate this dispatch to Lord Salisbury by reading
the same to him and leaving with him a copy.
I am, sir, etc.,
WM. M. EVARTS.
The Marquis of Salisbury to Mr. Welsh.
FOREIGN OFFICE, November 7, 1878.
SIR: Her Majesty's Government have had under their consideration
the dispatch from Mr. Evarts, dated the 28th September, and com-
municated to me on the 12th ultimo, respecting the complaints made
by the Government of the United States of the injuries sustained by
American fishermen in Fortune Bay in January last.
This dispatch is in reply to my letter of the 23d August, in which
I forwarded a copy of the report furnished by Captain Sulivan, of
Her Majesty's Ship Sirius, on the occurrences in question. Mr. Evarts
now remarks that the United States Government have not been put
in possession of the depositions which form the basis of that report,
and are unable, therefore, to say whether, upon their consideration,
the view which the Government of the United States takes of these
transactions upon the sworn statements of their own citizens would
be at all modified.
Her Majesty's Government have not had the opportunity of consid-
ering the statements in question; but the depositions which accom-
panied Captain Sulivan's report, and which I now have the honor to
forward, appeared to them, in the absence of other testimony, to be
conclusive as regards the facts of the case.
Apart, however, from the facts, in respect to which there appears
to be a material divergence between the evidence collected by the
United States Government and that collected by the colonial authori-
ties, Mr. Evarts takes exception to my letter of the 23d, on the ground
of my statement that the United States fishermen concerned have
92909°— S. Doc. 870, 61-3, vol 3 3
658 CORRESPONDENCE, ETC.
been guilty of breaches of the law. From this he infers an opinion
on my part that it is competent for a British authority to pass laws,
in suppersession of the treaty, binding American fishermen within the
three-mile limit. In pointing out that the American fishermen had
broken the law within the territorial limits of Her Majesty's domin-
ions, I had no intention of inferentially laying down any principles
of international law ; and no advantage would, I think, be gained by
doing so to a greater extent than the facts in question absolutely
require.
I hardly believe, however, that Mr. Evarts would in discussion
adhere to the broad doctrine which some portion of his language
would appear to convey, that no British authority has a right to
pass any kind of laws binding Americans who are fishing in British
waters; for if that contention be just, the same disability applies
a fortiori to any other power, and the waters must be delivered over
to anarchy. On the other hand, Her Majesty's Government will
readily admit — what is, indeed, self-evident — that British sover-
eignty, as regards those waters, is limited in its scope by the engage-
ments of the treaty of Washington, which cannot be modified or
affected by any municipal legislation. I cannot anticipate that with
regard to these principles any difference will be found to exist be-
tween the views of the two governments.
If, however, it be admitted that the Newfoundland legislature have
the right of binding Americans who fish within their waters by any
laws which do not contravene existing treaties, it must further be
conceded that the duty of determining the existence of any such con-
travention must be undertaken by the governments, and" cannot be
remitted to the discretion of each individual fisherman. For such a
discretion, if exercised on one side, can hardly be refused on the
other. If any American fisherman may violently break a law which
he believes to be contrary to a treaty, a Newfoundland fisherman may
violently maintain it if he believes it to be in accordance with treaty.
As the points in issue are frequently subtle, and require considerable
legal knowledge, nothing but confusion and disorder could result
from such a mode of deciding the interpretation of the treaty.
Her Majesty's Government prefer the view that the law enacted by
the legislature of the country, whatever it may be, ought to be obeyed
by natives and foreigners alike who are sojourning within the terri-
torial limits of its jurisdiction; but that if a law has been inadver-
tently passed which is in any degree or respect at variance with rights
conferred on a foreign power by treaty, the correction of a mistake so
committed, at the earliest period after its existence shall have been
ascertained and recognized, is a matter of international obligation.
It is not explicitly stated in Mr. Evarts's dispatch that he con-
siders any recent acts of the colonial legislature to be inconsistent
with the rights acquired by the United States under the treaty of
Washington. But if that is the case, Her Majesty's Government will
in a friendly spirit consider any representations he may think it right
to make upon the subject, with the hope of coming to a satisfactory
understanding.
I have, &c., SALISBURY.
PERIOD FROM 1871 TO 1905. 659
[Inclosure No. 1.]
Captain Sulivan to Vice- Admiral Sir E. Inglefield.
SIRIUS, ST. JOHN'S, NEWFOUNDLAND, June 19, 1878.
SIR: I have the honor to inform you that, in obedience to your
orders, I left Halifax on Saturday, the 8th instant, and proceeded to
Fortune Bay, for the purpose of inquiring into the circumstances
connected with the quarrel between the English and American fisher-
men in Long Harbor in January last, arriving off Brunet Island on
tile-evening of Monday, the 10th. I anchored there for the night, the
weather being thick, with fogs gathering ; and on the evening of the
llth weighed and proceeded to Long Harbor, at the entrance of which
the same afternoon I learnt that the Pert was at the head of the har-
bor (about 9 miles off). I therefore proceeded through the narrows
and anchored in 6 fathoms about 7 miles from the entrance, and ob-
served the Pert anchored about 3 miles farther in, when I recalled
her, and on the following day anchored in company with her 4 miles
farther down off Tickle Beach, where we found the disturbance of
January last had taken place.
2. On this beach are two huts, occupied by fishermen who witnessed
the affair, and having taken their evidence, which, with other evidence
subsequently taken, will be forwarded with my report hereafter, we
proceeded to Metter's Cove, where a fisherman named Tharnell and
another were examined on the same subject.
3. From information given by them I proceeded to St. Jacques the
same afternoon, where, from Mr. Snellgrove. subcollector of customs,
who was present at Tickle Beach shortly after the disturbance, and
others who had witnessed the whole transaction, I obtained further
important evidence, which, with my report, will be forwarded at the
earliest opportunity when complete.
4. There have been at these places several complaints made to me
on various subjects by some of the witnesses, disputes relative to land
property, and reports of barring herring, one being that a seine had
been laid for this illegal purpose, and had been so for some days ; in
consequence of which I directed Captain Aitchison to proceed to the
spot said to be barred, and ascertain the truth of the information.
5. The Pert reported at St. Jacques, and reported having found
the seins as described, and taken possession of it. In other cases of
complaint, I was only able to take the evidence of those witnesses
present at the time, but in the absence of others away fishing, I had
to postpone the cases until my return from St. John's.
6. On Monday, the 17th, I directed the Pert to proceed to St.
John's to coal, prior to her leaving for the east coast, and the same
afternoon I left St. Jacques in this ship for St. John's, where I
arrived yesterday at 7 p. m., the mail from England for Halifax
arriving a few hours afterward, and leaving early this morning.
7. I am unable to forward more than this letter, as the report on
the subject of the American outrage is not complete; but the evi-
dence is most complete, the witnesses corroborating each other, and
goes completely to prove the Americans were entirely in the wrong,
660 COBBESPONDENCE, ETC.
and brought the quarrel on themselves, first by illegally fishing, and
then by threatening them with a revolver.
8. I found on arrival the Contest at anchor, and the Pert arrived
this morning, to await further orders.
I have, etc., GEO. L. SULIVAN.
[Inclosure No. 2.]
Captain Sulivan to Rear- Admiral Sir E. Ingle-field.
SIRIUS, ST. JOHN'S, June 21, 1878.
SIR: In obedience to your orders dated the 8th instant, in which
I am directed to inquire into the differences which arose between
British and United States fishermen in Fortune Bay, in January last,
I have the honor herewith to inclose the evidence obtained from
several witnesses, together with my report" on the subject; and, in
further remarking thereon, desire to call your attention to those
points in the evidence which have led me to the conclusions contained
in that report.
It will be seen therein that there are four statutes which bear on
the subject, and which have been infringed by the American fisher-
men, viz: Act. cap. 6, 1876, in amendment of consolidated statutes
(1872) : cap. 102, the proviso of the same as regards barring.
By the same act, 1876, sec. 4, and art. 18 of the treaty of Wash-
ington—
1. With respect to the first of these, the witness Silas Fudge says :
"I witnessed the disturbance at Long Harbor on Sunday, the 6th
January last; I am certain it was the 6th; I saw the seines in the
water, two of them Americans, again. He (i. e., Jacobs, an Ameri-
can) had his in the boat; he had shot once and discharged his seine
into Farrel's, who was working for him."
John Cluett stated that he was in Long Harbor on Sunday in
January last. " They (the Americans) commenced hauling her ring-
on Sunday about midday ; the first American seine shot was that of
Jacobs; there were two more American seines shot. He (Jacobs)
had just hauled herring and shot them into Farrel's seine, who was
working for him ; we remonstrated about breaking the law and fish-
ing Sundays."
All the evidence of the other witnesses is corroborative of the
above; and the fact is even acknowledged by the Americans in their
own evidence, as appears by the statements inclosed in the corre-
spondence on this subject. It is therefore evident that they were
illegally fishing, using seines, and hauling herring in January last
contrary to the above-quoted status, which prohibits the same be-
tween the 20th October and 25th April in any year.
2. That the American captains were setting and putting out seines
and hauling and taking herring on Sunday, the 6th January, in
direct violation of sec. 4, cap. 6. This is proved by the evidence of
all the witnesses.
0 For report referred to. see inclosures to Lord Salisbury's note to Mr. Welsh,
dated August 23, 1878, ante, p. 651.
PERIOD FROM 1871 TO 1905. 661
John Sanndors says: " In January last — one Sunday, I don't know
the date — the Americans laid out their seines, assisted by the English
employed by them ; the Newfoundlanders told them to take them up,
as it was not legal their fishing on Sundays; there was no other
reason for destroying nets but for fishing on Sundays. They went
to McCauley, who had laid his seine out for barring herring; the
Newfoundlanders said it should not be done on a Sabbath day."
3. That the Americans were barring herring, that is, confining
them in the seines for a considerable time, instead of forthwith haul-
ing them. By the evidence of Silas Fudge "He (Captain Jacobs)
had shot once and discharged his seine into Tom Farrel's, who was
working for him."
John Saunders says: "Jacobs upset his seine into Farrel's seine,
who was employed by him. Farrel was barring for the Americans,
and was not allowed by Jacobs to haul his seine."
Mark Bolt says: "The Americans do not bar fish; this was the
first time I ever knew them to do so."
Richard Hendricken says : " Samuel Jacobs would persist in haul-
ing, and hauled once and barred them in Farrel's net. Farrel was
working for them, and had been barring herring for several days,
perhaps about a fortnight, by the Americans' orders. I believe it is
illegal barring herring, but we have no power to stop it; it is no
good telling a magistrate ; they take no notice of him."
4. That they were interfering with the rights of British fishermen
in their peaceable use of that part of the coast occupied by them, &c.
By all the evidence given, it occurred on Tickle Beach, Long Harbor,
on which, as was seen by us, was a Newfoundland fishing settlement,
the land being granted by government, as stated by Mark Bolt, who
says : " I have been in the neighborhood fourteen or fifteen years.
The ground I occupy, 150 feet, was granted me for life by govern-
ment, and for which I now pay a fee; there are two families on the
beach; there were three in the winter; our living is dependent on
our fishing off this settlement."
The above are the main points in the evidence on which my report
is founded.
In conclusion, I beg to inform you that I have forwarded a copy
of the report to his Excellency the governor of Newfoundland and
the duplicate direct to their lordships, in order to insure their re-
ceiving it at the same time as the colonial office will.
I have, £c.,
GEO. L. SULIVAN.
Mr. Evarts to Mr. Welsh.
No. 347.] DEPARTMENT OF STATE,
Washington. August 1, 1879.
SIR: You will readily understand that the pressure of current busi-
ness, especially during the regular and special sessions of Congress,
has prevented so immediate attention to the claims of the Fortune
Bay fishermen, as definitely laid before me in their proofs completed
662 CORRESPONDENCE, ETC.
during the session, as would enable me to give, in reply, a full con-
sideration to the dispatch of Lord Salisbury of the date of November
7, 1878, in reply to mine to you of 28th September, 1878.
But other and stronger reasons have also induced me to postpone
until now any discussion of the questions arising out of the occur-
rences to which these dispatches referred.
It so happened that the transactions of which certain citizens of
the United States complain were brought fully to the attention of the
government about the same time at which it became my duty to lay
before Her Britannic Majesty's Government the views of the United
States Government as to the award then recently made by the Com-
mission on the Fisheries, which had just closed its sittings at Halifax.
While the character of the complaint and the interests of the citizens
of the United States rendered it necessary that the subject should be
submitted to the consideration of Her Britannic Majesty's Govern-
ment at the earliest possible moment, in order to the prevention of
any further and graver misunderstanding and the avoidance of any
serious interruption to an important industry, I was exceedingly
unwilling that the questions arising under the award and those pro-
voked by the occurrences in Newfoundland should be confused with
each other, and least of all would I have been willing that the simul-
taneous presentment of the views of this Government should be
construed as indicating any desire on our part to connect the settle-
ment of these complaints with the satisfaction or abrogation of the
Halifax award.
I also deemed it not unadvisable in the interests of such a solution
as I am sure is desired by the good sense and good temper of both
governments that time should be allowed for the extinguishment of
the local irritation both here and in Newfoundland which these
transactions seem to have excited, and that another fishing season
should more clearly indicate whether the rights to which the citizens
of the United States were entitled under the treaty were denied or
diminished by the pretensions and acts of the colonial authorities or
whether their infraction was accidental and temporary. As soon as
the violence to which citizens of the United States had been subjected
in Newfoundland was brought to the attention of this department, I
instructed you, on 2d March, 1878, to represent the matter to Her
Britannic Majesty's Government, and upon such representation you
were informed that a prompt investigation would be ordered for the
information of that government.
On August 23, 1878, Lord Salisbury conveyed to you, to be trans-
mitted to your Government, the result of that investigation, in the
shape of a report from Captain Sulivan, of Her Majesty's ship
Sirius. In furnishing you with this report, Lord Salisbury, on behalf
of Her Britannic Majesty's Government, said:
" You will perceive that the report in question appears to demon-
strate conclusively that the United States fishermen on this occasion
had committed three distinct breaches of the law, and that no vio-
lence was used by the Newfoundland fishermen, except in the case of
one vessel, whose master refused to comply with the request which was
made to him that he should desist from fishing on Sunday in viola-
tion of the law of the colony and of the local custom, and who threat-
PERIOD FROM 1871 TO 1905. 663
ened the Newfoundland fishermen with a revolver, as detailed in
paragraphs 5 and 6 of Captain Sulivan's report."
The three breaches of the law thus reported by Captain Sulivan
and assumed by Lord Salisbury as conclusively established, were: 1.
The use of seines and the use of them also at a time prohibited by a
colonial statute. 2. Fishing upon a day — Sunday — forbidden by the
same local law; and 3. Barring fish in violation of the same local leg-
islation. In addition Captain Sulivan reported that the United
States fishermen were, contrary to the terms of the treaty of Wash-
ington—
" Fishing illegally, interfering with the rights of British fishermen
and their peaceable use of that part of the coast then occupied by
them and of which they were actually in possession — their seines and
boats, their huts and gardens and land granted by government being
situated thereon."
Yours, containing this dispatch and the accompanying report, was
received on 4th September, 1878, and on the 28th of the same month
you were instructed that it was impossible for this government duly
to appreciate the value of Captain Sulivan's report, until it was per-
mitted to see the testimony upon which the conclusions of that report
professed to rest. And you were further directed to say that, putting
aside for after examination the variations of fact, it seemed to this
fovernment that the assumption of the report was, that the United
tates fishermen were fishing illegally, because their fishing was being
conducted at a time and by methods forbidden by certain colonial
statutes; that the language of Lord Salisbury, in communicating the
report with his approval, indicated the intention of Her Britannic
Majesty's Government to maintain the position, that the treaty privi-
leges secured to United States fishermen by the treaty of 1871 were
held subject to such limitations as might be impobed upon their ex-
ercise by colonial legislation ; and " that so grave a question, in its
bearing upon the obligations of this government under the treaty,
makes it necessary that the President should ask from Her Majesty's
Government a frank avowal or disavowal of the paramount authority
of provincial legislation to regulate the enjoyment by our people of
the inshore fishery, which seems to be intimated, if not asserted, in
Lord Salisbury's note."
In reply to this communication, Lord Salisbury, 7th November,
1878, transmitted to you the depositions which accompanied Captain
Sulivan's report, and said :
" In pointing out that the American fishermen had broken the law
within the territorial limits of Her Majesty's domains, I had no inten-
tion of inferentially laying down any principles of international law,
and no advantage would, I think, be gained by doing so to a greater
extent than the facts in question absolutely require. * * * Her
Majesty's Government will readily admit — what is, indeed, self-evi-
dent— that British sovereignty, as regards those waters, is limited in
its scope by the engagements of the Treaty of Washington, which can
not be modified or affected by any municipal legislation."
It is with the greatest pleasure that the United States Government
receives this language as " the frank disavowal " which it asked " of
the paramount authority of provincial legislation to regulate the
enjoyment by our people of the inshore fishery."
664 CORRESPONDENCE, ETC.
Removing, as this explicit language does, the only serious difficulty
which threatened to embarrass this discussion, I am now at liberty to
resume the consideration of these differences in the same spirit and
with the same hopes so fully and properly expressed in the concluding
paragraph of Lord Salisbury's dispatch. He says:
" It is not explicitly stated in Mr. Evarts' dispatch that he con-
siders any recent acts of the colonial legislature to be inconsistent
with the rights acquired by the United States under the Treaty of
Washington. But if that is the case, Her Majesty's Government
will, in a friendly spirit, consider any representations he may think
it right to make upon the subject, with the hope of coming to a satis-
factory understanding."
It is the purpose, therefore, of the present dispatch to convey to
you, in order that they may be submitted to Her Britannic Majesty's
Government, the conclusions which have been reached by the Govern-
ment of the "United States as to the rights secured to its citizens under
the treaty of 1871 in the herring fishery upon the Newfoundland
coast, and the extent to which those rights have been infringed by
the transactions in Fortune Bay on January 6, 1878.
Before doing so, however, I deem it proper, in order to clear the
argument of all unnecessary issues, to correct what I consider certain
misapprehensions of the views of this Government contained in
Lord Salisbury's dispatch of 7th of November, 1878. The secretary
for foreign affairs of Her Brittanic Majesty says:
" If, however, it be admitted that the Newfoundland legislature
have the right of binding Americans who fish within their waters
by any laws which do not contravene existing treaties, it must be
further conceded that the duty of determining the existence of such
contravention must be undertaken by the governments, and can not
be remitted to the discretion of each individual fisherman. For
such discretion, if exercised on one side, can hardly be refused on
the other. If any American fisherman may violently break a law
which he believes to be contrary to a treaty, a Newfoundland fish-
erman may violently maintain it if he believes it to be in accordance
with treaty."
His lordship can scarcely have intended this last proposition to be
taken in its literal significance. An infraction of law may be ac-
companied by violence which affects the person or property of an
individual, and that individual may be warranted in resisting such
illegal violence, so far as it directly affects him, without reference
to the relation of the act of violence to the law which it infringes,
but simply as a forcible invasion of his rights of person or property.
But that the infraction of a general municipal law, with or without
violence, can be corrected and punished by a mob, without official
character or direction, and who assume both to interpret and ad-
minister the law in controversy, is a proposition which does not
require the reply of elaborate argument between two governments
whose daily life depends upon the steady application of the sound
and safe principles of English jurisprudence. However this may be,
the Government of the United States can not for a moment admit
that the conduct of the United States fishermen in Fortune Bay
was in any — the remotest — degree a violent breach of law.
PERIOD I'ROM 1871 TO 1905. 665
Granting any and all the force which may be claimed for the
colonial legislation, the action of the United States fishermen was
the peaceable prosecution of an innocent industry, to which they
thought they were entitled. Its pursuit invaded no man's rights,
committed violence upon no man's person, and if trespassing beyond
its lawful limits could have been promptly and quietly stopped by
the interference and representations of the lawfully constituted au-
thorities. They were acting under the provisions of the very statute
which they are alleged to have violated, for it seems to have escaped
the attention of Lord Salisbury that section 28 of the title of the
consolidated acts referred to contains the provision that " Nothing
in this chapter shall affect the rights and privileges granted by
treaty to the subjects of any state or power in amity with Her
Majesty." They were engaged, as I shall hereafter demonstrate, in
a lawful industry, guaranteed by the treaty of 1871, in a method
which was recognized as legitimate by the award of the Halifax
Commission, the privilege to exercise which their government had
agreed to pay for. They were forcibly stopped, not by legal au-
thority, but by mob violence. They made no resistance, withdrew
from the fishing grounds, and represented the outrage to their Gov-
ernment, thus acting in entire conformity with the principle as justly
stated by Lord Salisbury himself, that —
" If it be admitted, however, that the Newfoundland legislature
have the right of binding Americans who fish within their waters by
any lawrs which do not contravene existing treaties, it must be further
conceded that the duty of determining the existence of such contra-
vention must be undertaken by the governments, and can not be
remitted to the judgment of each individual fisherman."
There is another passage of Lord Salisbury's dispatch to which I
should call your attention. Lord Salisbury says:
" I hardly believe, however, that Mr. Evarts would in discussion
adhere to the broad doctrine, which some portion of his language
would appear to convey, that no British authority has a right to pass
any kind of laws binding Americans who are fishing in British
waters; for if that contention be just the same disability applies a
fortiori to any other powers, and the waters must be delivered over
to anarchy."
I certainly can not recall any language of mine in this correspond-
ence which is capable of so extraordinary a construction. I have
nowhere taken any position larger or broader than that which Lord
Salisbury says :
" Her Majesty's Government will readily admit, what is, indeed,
self-evident, that Britisli sovereignty, as regards these waters, is
limited in its scope by the engagements of the Treaty of Washing-
ton, which can not be affected or modified by any municipal legisla-
ture."
I have never denied the full authority and jurisdiction, either of
the imperial or colonial governments, over their territorial waters,
except so far as by treaty that authority and jurisdiction have been
deliberately limited by these governments themselves. Under no
claim or authority suggested or advocated by me could any other
government demand exemption from the provisions of British or
colonial law, unless that exemption was secured by treaty; and if
066 COKKESPONDENCE, ETC.
these waters must be delivered over to anarchy, it will not be in. con-
sequence of any pretensions of the United States Government, but
because the British Government has, by its own treaties, to use Lord
Salisbury's phrase, limited the scope of British sovereignty. I am
not aware of any such treaty engagements with other powers, but if
there are, it would be neither my privilege nor duty to consider or
criticise their consequences where the interests of the United States
are not concerned.
After a careful comparison of all the depositions furnished to both
governments, the United States Government is of opinion that the
following facts will not be disputed :
1. That twenty-two vessels belonging to citizens of the United
States, viz, Fred. P. Frye, Mary and M., Lizzie and Namari, Edward
E. Webster, W. E. McDonald, Crest of the Wave, F. A. Smith, Here-
ward, Moses Adams, Charles E. Warren, Moro Castle, Wild-fire,
Maud and Effie, Isaac Rich, Bunker Hill, Bonanza, H. M. Rogers,
Moses Knowlton, John W. Bray, Maud B. Wetherell, New England,
and Ontario, went from Gloucester, a town in Massachusetts, United
States, to Fortune Bay, in Newfoundland, in the winter of 1877-
1878, for the purpose of procuring herring.
2. That these vessels waited at Fortune Bay for several weeks
(from about December 15, 1877, to January 6, 1878) for the expected
arrival of schools of herring in that harbor.
3. That on Sunday, January 6, 1878, the herring entered the bay
in great numbers, and that four of the vessels sent their boats with
seines to commence fishing operations, and the others were proceeding
to follow.
4. That the parties thus seining were compelled, by a large and vio-
lent mob of the inhabitants of Newfoundland, to take up their seines,
discharge the fish already inclosed, and abandon their fishery, and
that in one case, at least, the seine was absolutely destroyed.
5. That these seines were being used in the interest of all the United
States vessels waiting for cargoes in the harbor, and that the catch
undisturbed would have been sufficient to load all of them with profit-
able cargoes. The great quantity of fish in the harbor, and the fact
that the United States vessels if permitted to fish would all have ob-
tained full cargoes, is admitted in the British depositions.
" If the Americans had been allowed to secure all the herrings in the
bay for themselves, which they could have done that day, they would
have filled all their vessels, and the neighboring fishermen would have
lost all chance on the following week day." (Deposition of James
Searwell.)
" The Americans by hauling herring that day, when the English-
men could not, were robbing them of their lawful and just chance of
securing their share in them ; and, further, had they secured all they
had barred, they would, I believe, have filled every vessel of theirs in
the bay." (Deposition of John Chutt.)
See also affidavits of the United States captains.
6. That in consequence of this violence all the vessels abandoned the
fishing grounds, some without cargoes, some with very small cargoes,
purchased from the natives, and their voyages were a loss to their
owners.
PERIOD FROM 1811 TO 1905. 667
7. That the seining was conducted at a distance from any land or
fishing privilege or the occupation of any British subject. (See
affidavits of Willard G. Rode, Charles Doyle, and Michael B,
Murray.)
8. That none of the United States vessels made any further at-
tempts to fish, but three or four which were delayed in the neighbor-
hood purchased small supplies of herring. (See British depositions
of John Saunders and Silas Fudge, wherein is stated that the United
States vessels only remained a few days, and that after January 6 no
fish came into the harbor.)
All the United States affidavits show that the United States vessels
were afraid to use their seines after this, and that they left almost
immediately, most of them coming home in ballast.
The provisions of the treaty of Washington (1871), by which the
right to prosecute this fishery was secured to the citizens of the United
States, are very simple and very explicit.
The language of the treaty is as follows:
" XVIII. It is agreed by the high contracting parties that in addi-
tion to the liberties secured to the United States fishermen by the
convention between the United States and Great Britain, signed at
London on the 20th day of October, 1818, of taking, curing, and
drying fish on certain coasts of the British North American colonies,
therein defined, the inhabitants of the United States shall have, in
common with the subjects of Her Britannic Majesty, the liberty for
the term of years mentioned in Article XXXIII of this treaty to
take fish of every kind, except shell-fish, on the sea coast and shores
and in the bays, harbors, and creeks of the provinces of Quebec, &c.
" XXXII. It is further agreed that the provisions and stipula-
tions of Articles XVIII to XXV of this treaty, inclusive, shall extend
to the colony of Newfoundland, so far as they are applicable."
Title XXVII, chapter 102, of the consolidated acts of Newfound-
land, provides:
" SECTION 1. That no person shall take herring on the coast of
Newfoundland by a seine or other such contrivance, at any time be-
tween the 20th day of October and the 12th day of April, in any
year, or at any time use a seine except by way of shooting and forth-
with hauling the same.
" SEC. 2. That no person shall, at any time, between the 20th day
of December and the 1st day of April, in any year, catch or take
herring with seines of less than 2f inches mesh, &c.
" SEC. 4. No. person shall, between the 20th day of April and the
20th day of October, in any year, haul, catch, or take herring or other
bait for exportation within one mile, measured by the shore across
the water, of any settlement situated between Cape Chapeau Rouge
and Point Emajer, near Cape Ray."
The act of 1876 provides that " No person shall, between the hours
of twelve o'clock on Saturday night and twelve o'clock on Sunday
night, haul or take any herring, capelin, or squid, with net, seine,
bunts, or any such contrivance for the purpose of such hauling or
taking."
It seemed scarcely necessary to do more than place the provisions of
the treaty and the provisions of these laws in contrast, and apply the
principle so precisely and justly announced by Lord Salisbury as self-
668 COEBESPONDENCE, ETC.
evident, " that British sovereignty, as regards those waters, is limited
in its scope by the engagements of the Treaty of Washington, which
can not be modified or affected by any municipal legislation." For it
will not be denied that the treaty privilege of " taking fish of every
kind, except shell-fish, on the sea coast and shores, and in the bays,
harbors, and creeks " of Newfoundland, is both seriously " modified "
and injuriously affected by municipal legislation, which closes such
fishery absolutely for seven months of the year, prescribes a special
method of exercise, forbids exportation for five months, and, in cer-
tain localities, absolutely limits the three-mile area, which it was the
express purpose of the treaty to open.
But this is not all. When the treaty of 1871 was negotiated, the
British Government contended that the privilege extended to United
States fishermen of free fishing within the three-mile territorial limit
was so much more valuable than the equivalent offered in the treaty
that a money compensation should be added to equalize the exchange.
The Halifax Commission was appointed for the special purpose of de-
termining that compensation, and, in order to do so, instituted an
exhaustive examination of the history and value of the colonial fish-
eries, including the herring fishery of Newfoundland.
Before that commission, the United States Government contended
that the frozen-herring fishery in Fortune Bay, Newfoundland, the
very fishery now under discussion, was not a fishery, but a traffic ; that
the United States vessels which went there for herring always took
out trading permits from the United States custom-house, wrhich no
other fishermen did ; that the herring were caught by the natives in
their nets and sold to the vessels, the captains of which froze the
herring after purchase, and transported them to market, and that
consequently this was a trade, a commerce beneficial to the Newfound-
landers, and not to be debited to the United States account of advan-
tages gained by the treaty. To this the British Government replied,
that whatever the character of the. business had been, the treaty now
gave the United States fishermen the right to catch as well as pur-
chase herring; that the superior character of the United States ves-
sels, the larger capacity and more efficient instrumentality of the
seines used by the United States fishermen, together with their enter-
prise and energy, would all induce the United States fishermen to
catch herring for themselves, and thus the treaty gave certain privi-
leges to the United States fishermen, which inflicted upon the original
proprietor a certain amount of loss and damage, from this dangerous
competition, which, in justice to their interests, required compensa-
tion. The exercise of these privileges, therefore, as stated in the
British case, as evidenced in the British testimony, as maintained
in the British argument, for which the British Government demanded
and received compensation, is the British construction of the extent
of the liberty to fish in common, guaranteed by the treaty.
Mr. Whiteway, then attorney-general of Newfoundland, and one of
the British counsel before the commission, said in his argument:
"And now one word with regard to the winter herring-fishery in
Fortune Bay. It appears that from 40 to 50 United States vessels
proceed there between the months of November and February, taking
from thence cargoes of frozen herring of from 500 to 800 or 1,000 bar-
rels. According to the evidence, these herrings have hitherto gener-
PEKIOD FROM 1871 TO 1905. 669
ally been obtained by purchase. It is hardly possible, then, to con-
ceive that the Americans will continue to buy, possessing as they now
do the right to catch."
The British case states the argument as to the Newfoundland fish-
eries in the following language :
" It is asserted on the part of Her Majesty's Government, that the
actual use which may be made of this privilege at the present moment
is not so much in question as the actual value of it to those who may,
if they will, use it. It is possible, and even probable, that the United
States fishermen may at any moment avail themselves of the privilege
of fishing in Newfoundland inshore waters to a much larger extent
than they do at present; but even if they should not do so, it would
not relieve them from the obligation of making the just payment for
a right which they have acquired subject to the condition of making
that payment. The case may be not inaptly illustrated by the some-
what analogous one of a tenancy of shooting or fishing privileges ; it
is not because the tenant fails to exercise the rights which he has
acquired by virtue of his lease that the proprietor should be debarred
from the recovery of his rent.
" There is a marked contrast to the advantage of the United States
citizens between the privilege of access to fisheries the most valuable
and productive in the world and the barren right accorded to the
inhabitants of Newfoundland, of fishing in the exhausted and preoc-
cupied waters of the United States, north of the 39th parallel of
north latitude, in which there is no field for lucrative operations, even
if British subjects desired to resort to them; and there are strong
grounds for believing that year by year, as United States fishermen
resort in greater numbers to the coasts of Newfoundland, for the pur-
pose of procuring bait and supplies, they will become more intimately
acquainted with the resources of the inshore fisheries and their unlim-
ited capacity for extension and development. As a matter of fact
United States vessels have, since the Washington Treaty came into
operation, been successfully engaged in these fisheries; and it is but
reasonable to anticipate that as the advantages to be derived from
them become more widely known larger numbers of United States
fishermen will engage in them.
"A participation by fishermen of the United States in the freedom
of these waters, must, notwithstanding their wonderfully reproductive
capacity, tell materially on the local catch, and, while affording to
the United States fishermen a profitable employment, must seriously
interfere with local success. The extra amount of bait also which is
required for the supply of the United States demand for the bank
fishery must have the effect of diminishing the supply of cod for the
inshores, as it is well known that the presence of that fish is caused by
the attraction offered by a large quantity of bait fishes, and as this
quantity diminishes the cod will resort in fewer numbers to the coast,
i " The effect of this diminution may not in all probability be appar-
ent for some years to come, and whilst United States fishermen will
have the liberty of enjoying the fisheries for several years in their
present teeming and remunerative state, the effects of overfishing
may, after their right to participate in them has lapsed, become seri-
ously prejudicial to the interests of the local fishermen.
670 CORRESPONDENCE, ETC.
II. THE PRIVILEGE OF PROCURING BAIT AND SUPPLIES, REFITTING, DRYING,
TRANSSHIPPING, &C.
"Apart from the immense value to United States fishermen of
participation in the Newfoundland inshore fisheries, must be esti-
mated the important privilege of procuring bait for the prosecution
of the bank and deep-sea fisheries, which are capable of unlimited
expansion. With Newfoundland as a basis of operations, the right
of procuring bait, refitting their vessels, drying and curing fish, pro-
curing ice in abundance for the preservation of bait, liberty of trans-
shipping their cargoes, &c., an almost continuous prosecution of the
bank fishery is secured to them. By means of these advantages,
United States fishermen have acquired by the Treaty of Washington
all the requisite facilities for increasing their fishing operations to
such an extent as to enable them to supply the demand for fish food
in the United States markets, and largely to furnish the other fish
markets of the world, and thereby exercise a competition which must
inevitably prejudice Newfoundland exporters. It must be remem-
bered, in contrast with the foregoing, that United States fishing craft,
before the conclusion of the treaty of Washington, could only avail
themselves of the coast of Newfoundland for obtaining a supply of
wood and water, for shelter, and for necessary repairs in case of ac-
cident, and for no other purpose whatever. They therefore pros-
ecuted the bank fishery under great disadvantages, notwithstanding
which, owing to the failure of the United States local fisheries, and
the consequent necessity of providing new fishing grounds, the bank
fisheries have developed into a lucrative source of employment to the
fishermen of the United States.
" That this position is appreciated by those actively engaged in the
bank fishery is attested by the statement of competent witnesses,
whose evidence will be laid before the Commission."
And in the reply of the British Government, referring to the same
Newfoundland fisheries, is the following declaration :
"As regards the herring fishery on the coast of Newfoundland, it is
availed of to a considerable extent by the United States fishermen,
and evidence will be adduced of large exportations by them in Ameri-
can vessels, particularly from Fortune Bay and the neighborhood,
both to European and their own markets.
" The presence of United States fishermen upon the coast of New-
foundland, so far from being an advantage, as is assumed in the
answer, operates most prejudicially to Newfoundland fishermen.
Bait is not thrown overboard to attract the fish, as asserted, but the
United States bank fishing vessels, visiting the coast in such large
numbers as they do for the purpose of obtaining bait, sweep the coast,
creeks, and inlets, thereby diminishing the supply of bait for local
catch and scaring it from the grounds, where it would otherwise be an
attraction for cod."
In support of these views, the most abundant testimony was pro-
duced by the British Government showing the extent of the United
States herring fishery, the character and construction of the seines
used, the time when the vessels came and left, and the employment
of the native fishermen by the United States vessels. And it follows
unanswerably that upon the existence of that fishery between the
months of October and April (the very time prohibited by the
PERIOD FROM 1871 TO 1905. 671
colonial law), and upon the use of just such seines as were used by
the complainants in this case (the very seines forbidden by the
colonial law), and because the increasing direct fishery of the United
States vessels was interfering with native methods and native profits,
the British Government demanded and received compensation for the
damages thus alleged to proceed from " the liberty to take fish of
every kind " secured by the treaty.
This Government cannot anticipate that the British Government
will now contend that the time and method for which it asked and
received compensation are forbidden by the terms of the very treaty
under which it made the claim and received the payment. Indeed,
the language of Lord Salisbury justifies the Government of the
United States in drawing the conclusion that between itself and Her
Britannic Majesty's Government there is no substantial difference in
the construction of the privileges of the treaty of 1871, and that in
the future the colonial regulation of the fisheries with which, as far
as their own interests are concerned, we have neither right nor desire
to intermeddle, will not be allowed to modify or affect the rights
which have been guaranteed to citizens of the United States.
You will therefore say to Lord Salisbury that the Government of
the United States considers the engagements of the treaty of 1871 con-
travened by the local legislation of Newfoundland, by the prohibition
of the use of seines, by the closing of the fishery with seines between
October and April, by the forbidding of fishing for the purpose of ex-
portation between December and April, by the prohibition to fish on
Sunday, by the allowance of nets only of a specified mesh, and by the
limitation of the area of fishing between Cape Ray and Cape Chapeau
Rouge. Of course, this is only upon the supposition that such laws
are considered as applying to United States fishermen ; as local regu-
lations for native fishermen we have no concern with them. The con-:
travention consists in excluding United States fishermen during the
very times in which they have been used to pursue this industry, and
forbidding the methods by which alone it can be profitably carried on.
The exclusion of the time from October to April covers the only sea-
son in which frozen herring can be procured, while the prohibition
of the seines would interfere with the vessels, who, occupied in cod-
fishing during the summer, go to Fortune Bay in the winter, and
would consequently have to make a complete change in their fishing
gear, or depend entirely upon purchase from the natives for their sup-
ply. The prohibition of work on Sunday is impossible under the con-
ditions of the fishery. The vessels must be at Fortune Bay at a cer-
tain time, and leave for market at a certain time. The entrance of the
schools of herring is uncertain, and the time they stay equally so.
Whenever they come they must be caught, and the evidence in this
very case shows that after Sunday, the 6th of January, there was no
other influx of these fish, and that prohibition on that day would
have been equivalent to shutting out the fishermen for the season.
If I am correct in the views hitherto expressed, it follows that the
United States Government must consider the United States fishermen
as engaged in a lawful industry, from which they were driven by law-
less violence at great loss and damage to them ; and that as this was in
violation of rights guaranteed by the Treaty of Washington, between
Great Britain and the United States, they have reasonable ground
672 CORRESPONDENCE, ETC.
to expect at the hands of Her Britannic Majesty's Government proper
compensation for the loss they have sustained. The United States
Government, of course, desires to avoid an exaggerated estimate of
the loss which has been actually sustained, but thinks you will find
the elements for a fair calculation in the sworn statement of the own-
ers, copies of which are herewith sent. You will find in the printed
pamphlet which accompanies this, and which is the statement sub-
mitted to this department on behalf of twenty of the vessels, the ex-
pense of each vessel in preparation for the fishery and her estimated
loss and damage. The same statement with regard to the two vessels
New England and Ontario, not included in this list of twenty, you
will find attached hereto, thus making a complete statement for the
twenty-two vessels which were in Fortune Bay on the 6th January,
1878, and the government of the United States sees no reason to doubt
the accuracy of these estimates. I find upon examining the testimony
of one of the most intelligent of the Newfoundland witnesses called be-
fore the Halifax Commission by the British Government, Judge
Bennett, formerly Speaker of the Colonial House, and himself largely
interested in the business, that he estimates the Fortune Bay business
in frozen herring, in the former years of purchase, at 20,000 to 25,000
barrels for the season and that it was increasing, and this is con-
firmed by others.
The evidence in this case shows that the catch which the United
States fishing fleet had on this occasion actually realized was excep-
tionally large, and would have supplied profitable cargoes for all of
them. When to this is added the fact that the whole winter was lost
and these vessels compelled to return home in ballast; that this vio-
lence had such an effect on this special fishery that in the winter of
1878-'79 it has been almost entirely abandoned, and the former fleet
of twenty-six vessels has been reduced to eight, none of whom went
provided with seines, but were compelled to purchase their fish of the
inhabitants of Newfoundland, the United States Government is of
opinion that $105,305.02 may be presented as an estimate of the loss as
claimed, and you will consider that amount as being what this Gov-
ernment will regard as adequate compensation for loss and damage.
In conclusion I would not be doing justice to the wishes and opin-
ions of the United States Government if I did not express its pro-
found regret at the apparent conflict of interests which the exercise
of its treaty privileges appears to have developed. There is no inten-
tion on the part of this Government that these privileges should be
abused, and no desire that their full and free enjoyment should harm
the Colonial fishermen. While the differing interests and methods
of the shore fishery and the vessel fishery make it impossible that the
regulations of the one should be entirely given to the other, yet if the
mutual obligations of the treaty of 1871 are to be maintained, the
United States Government would gladly co-operate with the Gov-
ernment of Her Britannic Majesty in any effort to make those regu-
lations a matter of reciprocal convenience and right; a means of
preserving the fisheries at their highest point of production, and of
conciliating a community of interests by a just proportion of advan-
tages and profits.
I am, etc., WM. M. EVAETS.
PERIOD FROM 1871 TO 1905. 673
Mr. Evarts to Mr. Babson. ^
DEPARTMENT or STATE,
Washington, August 5, 1879.
SIR : Arrangements have been made by which the naval steamship
Kearsarge, under the command of Commander Henry F. Picking,
will spend some weeks in cruising over the fishing grounds resorted
to by our fishing fleet in the waters of Newfoundland and the
Gulf of St. Lawrence. You are desired to join that vessel at Shediack,
New Brunswick, in company with Alfred D. Foster, esq., of Boston,
with as little delay as possible. The vessel will be there ready to
receive you, and Commander Picking will have been advised of the
duty assigned you and Mr. Foster, as set forth in the instructions
given you.
The general purpose of this cruise of the Kearsarge is to examine
the condition and conduct of our fishing interest in those waters ; to
observe the methods and equipage of our fishermen as used in the
fisheries within three miles of the shore, and the treatment shown
them in the pursuit of their industry by the local authorities and
the population of the coasts to which they resort. You have been
selected to accompany the Kearsarge in this cruise from your thor-
ough and prolonged experience in the fishing interests of our people —
from your personal acquaintance of the character and habits of the
men engaged in this pursuit, and from your especial conversance with
the general scope of the relations between these interests and those of
the coast population of the provinces as developed by the rivalry and
conflict between them, which have seemed inseparable from the com-
mon enjoyments of the fisheries.
Alfred D. Foster, esq., will accompany you as your legal adviser
and to be in charge of the taking and reducing to form of such depo-
sitions or statements as you or he may think of importance for the
information of the government in this important inquiry.
The consuls of the United States at the different points at which
you may touch are expected to give you every aid in their power
towards the objects in view, and to furnish you with any information
in their possession that may be properly incorporated in your report
of the situation of affairs on the coasts.
It is quite possible that some of our fishermen may wish to be ad-
vised as to the course which the government thinks them justified in
taking should the local authorities assume to interfere with them in
the peaceable pursuit within the three-miles line of their fishing meth-
ods and the use of their seines and fishing-tackle. This interference,
if attempted, will doubtless be based upon the local legislation of the
provinces regulating the fisheries on their coast within the three-miles
line. In the view of this government, these local regulations are in-
competent to curtail or control the participation of our fishermen, as
accorded by the Treaty of Washington, in their inshore fisheries. So
long as our fishermen use methods and apparatus in their judgment
adapted to catching the fish in the most efficient and most profitable
manner to the industry they are pursuing, to wit, fishing from vessels
manned and fitted from our ports, and seeking profit therefrom, and
so long as they do not molest the provincial fishermen, pursuing their
92909°— 8. Doc 870, 61-8, vol 3 4
674 CORRESPONDENCE, ETC.
ewn methods in their equal right, this government regards our fisher-
men as within the treaty right and under no necessity of conforming,
either in regard to days or seasons, or apparatus, to the prescriptions
of the local regulations of the provinces.
You will, however, be careful to make our fishermen understand
that they are not to resist the lawful authorities in any legal or judi-
cial process or proceedings which may be taken against them in main-
tenance of these local laws. Taking care to preserve due evidence of
this interruption of their rights and of the loss and damage thus occa-
sioned them, for the vindication of their rights and the redress of
their grievances, they will leave to their government the proper repre-
sentation to the British Government to secure indemnity for the past
and the prevention of future injuries.
I do not deem it useful to indicate to Mr. Foster or yourself more
specifically the line or methods of your inquiries. As full and trust-
worthy an exhibition of the working of the system of the Treaty of
Washington within the three-miles line as you can gather from your
own observation and from the evidence which you can acquire, is
desired as the result of this expedition. While on board the Kear-
sarge you and Mr. Foster will be observant, of course, of the system
of the ship's discipline so far as it may need to affect the execution of
the duty confided to you, and to the cordial co-operation of the naval
authorities both you and the government can safely trust the pros-
perity of the service expected from you.
You will correspond only with this department, and be careful to
avoid any communications that may lead to any publication of the
progress or results of the cruise, except by authority of this
department.
Pam, &c., WILLIAM M. EVARTS.
Mr. Evarts to Sir Edward Thornton.
DEPARTMENT OF STATE,
Washington, August 5, 1879.
SIR : I have the honor to acquaint you with the purpose of this gov-
ernment, in view of the importance of the pending questions respect-
ing the fisheries of Newfoundland and the Gulf of Saint Lawrence,
and for the better obtaining of the latest accessible information with
respect to those fisheries, to send a naval vessel of the United States
to the maritime provinces and ports of the Dominion and the adjacent
fishing-grounds, for the purpose of making a careful examination of
the conduct of those inshore fisheries by the American fishing fleet,
which, under the Treaty of Washington, may visit those waters, and
also of the treatment which our fishermen and their industry receive
at the hands of the local authorities and population.
The United States steamer Kearsarge, under the charge of Com-
mander Henry F. Picking, U. S. N., has been detailed for the assigned
duty, and is now in the Gulf, with orders to await at Shediac, New
Brunswick, the arrival of the agent, who has been directed to embark
at that place. This agent is instructed to make inquiry and rej-ort
as to the operation of the treaty stipulations and local laws and the
general condition of affairs in that locality, so far as the fishing inter-
PERIOD FROM 18*71 TO 1905. 675
ests of citizens of the United States are concerned, with a view to a
better understanding of the questions involved, and the adjustment
of points of difference betweeen the two governments, if practicable.
I have, &c.,
WM. M. EVARTS.
Mr. Welsh to Mr. Evarts.
No. 347.] LEGATION or THE UNITED STATES,
London, August 13, 1879.
(Received August 28.)
SIR: I have the honor to acknowledge the receipt of your most
important dispatch No. 347 of the 1st instant, containing the state-
ment of the claims of the owners of twenty-two fishing vessels for loss
and damage arising from the conduct of certain inhabitants of New-
foundland, at Fortune Bay, in January, 1878.
As this instruction did not arrive until yesterday, and as I am to
present my letter of recall to Her Majesty to-morrow, I have no time
to embody its statements and arguments in a separate note to Lord
Salisbury. I think, besides, that it is so full, clear, and convincing in
its present shape that I should weaken its force by changing its form.
I have taken the liberty, therefore, to send a copy of it to-day to
Lord Salisbury with a note, of which I inclose a transcript.
As the details of the losses contained in the printed pamphlet which
accompanied your instruction appeared to me to be important, and as
there was not sufficient time to copy them, I have sent the appendix to
the pamphlet, and also the original account of the owners of the New
England and Ontario, to his lordship for his information, with a
request that he should return them to this legation at his entire con-
venience. I think it desirable that additional copies of these papers
should be furnished to us by the Department of State.
I have to add that I have also this day sent to Lord Salisbury the
statement of a claim for damages on behalf of the owners of the
schooner Mist, agreeably to your instruction, No. 346, of the 1st
instant.
I have, &c. JOHN WELSH.
[Inclosure.]
Mr. Welsh to the Marquis of Salisbury.
LEGATION or THE UNITED STATES,
London, Auyust 13, 1879.
MY LORD: I have just received a very important dispatch from
Mr. Evarts, stating the claims for damages, amounting to $105,305.02,
sustained by certain citizens of the United States, owners of twenty-
two vessels, in Fortune Bay, Newfoundland, in the month of January,
1878, which claims have already formed the subjects of a previous
correspondence with your lordship.
As the argument for the payment of these by Her Majesty's Gov-
ernment is presented by Mr. Evarts in a very full, clear, and forcible
manner, I have thought it proper to submit this instruction to me in
its original form to your lordship, asking for it an early and favor-
able consideration.
I have, &c., JOHN WELSH.
676 CORRESPONDENCE, ETC.
Captain Kennedy, R. N. to Governor Sir J. Glover.
" DRUID," AT ST. JOHN'S, August 26, 1879.
SIR : I have the honour to acknowledge the receipt of your Excel-
lency's letter, inclosing a copy of a letter from the United States'
Consul, together with correspondence relating to a disturbance
between some English and American fishermen, at Smith's Sound,
Trinity Bay, on the 16th of this month.
In compliance with your Excellency's wishes, I have detailed Her
Majesty's gun- vessel " Zephyr " to convey Mr. Prowse, Q.C., to that
part, to ascertain the truth of the charges advanced by the Americans,
and I have to add that the " Zephyr " sailed this morning in pursu-
ance of these orders.
I have, &c.
(Signed) W. R. KENNEDY.
Mr. Prowse to the Colonial Secretary.
ST. JOHN'S, NEWFOUNDLAND, August #7,
SIR: Having proceeded to Smith's Sound, in Trinity Bay, in Her
Majesty's ship "Zephyr" by order of the Government, to investigate
the facts connected with an alleged obstruction by Newfoundland
fishermen to the taking of bait fishes by the crew of an American
schooner called the "Howard Holbrook" I have the honour to to re-
port, for the information of his Excellency the Governor, that, hav-
ing made a careful examination of the facts at Smith's Sound, where
we arrived last evening, and having taken a number of depositions
there, which are appended to this Report, I am enabled to state that
the facts of the case are as follow : —
The American schooner "Howard Holbrook " arrived at Aspey
Cove, Smith's Sound. On Thursday, the 14th August, the master came
in a dory, with the witness Martin Ryan, to that cove to seine for
squid ; the man referred to in the depositions, John Cooper, and his
two men-servants, were on the beach preparing to have their break-
fast. A conversation took place between Ryan and Cooper, the pur-
port of which is given by Cooper, and confirmed by Ryan. Ryan
said to Cooper that he was a Newfoundlander, and could seine;
Cooper replied that he could not. Ryan said he would ; and Cooper
replied " You'd better try." Not a word was said by McFaden, the
master of the jCmerican schooner and not a word was said by Cooper
or any one else to him. Cooper alleges that he threatened no violence,
and that he never intended to do any.
After the short conversation, which lasted a fewr minutes, Ryan
and the master of the schooner went down to Lower Lances Cove,
which is a short distance from Aspey Cove, and there shot their seine.
and hauled some herring.
The schooner remained in the Sound until the following Monday,
buying squids and jigging them, and that instead of any obstruction
being offered to the American (Ryan's evidence shows) they were
treated with the greatest kindness and hospitality.
PERIOD EltOM 1871 TO 1U05. 677
From the short experience that I had of Cooper, who is an immense
man, very outspoken and honest, with a great fund of humour, I feel
convinced that his statement is substantially correct ; his story is also
confirmed, almost word for word, in all important points, by Ryan's
own deposition taken before me, and by the evidence of other wit-
nesses.
Knowing that the Government were most anxious to protect the
rights of the fishermen of the United States under the Washington
Treaty, I took special pains to obtain accurate information respecting
the obstruction complained of by Consul Molloy ; and I am happy to
inform the Government that in this instance, at all events, there is no
cause of complaint against our fishermen.
Ryan, who is favourably disposed towards the Americans, shows
in his evidence the wisdom of the law against seining squid, and
his opinion will be confirmed by every fisherman in the colony.
I have to thank Lieutenant Clutterbuck, R. N., commanding Her
Majesty's ship "Zephyr" and his officers, for extreme courtesy and
kindness, and for the ready assistance given me in carrying out the
object of my mission.
I have, &c.,
(Signed) D. W. PROWSE.
Governor Sir J. Glover to Sir M. Hicks Beach.
GOVERNMENT HOUSE,
Newfoundland, August 28, 1879.
SIR : I have the honour to inclose, for your information, copy of a
letter from the United States' Consul at this port, dated the 23rd
instant, putting forward a complaint that opposition had been offered
by our fishermen to the crew of the American schooner Howard
Holbrook, when attempting to seine for squid at Smith's Sound, in
Trinity Bay.
2. This appearing to be a repetition of the interruption which
occurred in Fortune Bay in 1878, I at once applied to the Senior
Naval Officer for the service of one of Her Majesty's ships of war to
convey to the spot a legal officer charged with the duty of inquiring
into the correctness of the statements put forward to sustain the case
which I conclude would, if supported by evidence, have been followed
by the United States' Government submitting a claim for compensa-
tion.
3. The Senior Naval Officer, complying with my request, dis-
patched Her Majesty's ship Zephyr to Smith's Sound, and on her
return I was furnished with the inclosed Report of Judge Prowse,
the legal officer deputed by my Government to conduct the inquiry,
which proves most fully, by sworn evidence, that the whole charge
against our fishermen was frivolous, and void of all sustainment.
4. It will be seen from the evidence inclosed that the question
involved is, whether our local laws for the protection of a fishery
common to two Contracting Parties, but passed subsequent to the
date of the Treaty, are binding on the one party who have not
678 CORKESPONDENCE, ETC.
assented to what they consider a modification of, or indeed a violation
of, contract.
5. I should desire to be instructed on this point, because the great
number of American vessels frequenting our waters in the exercise
of their fishery rights under the Treaty of Washington may, ere the
present season be ended, produce an indefinite number of claims for
compensation on the part of the American Government.
6. The depositions which should accompany Mr. Prowse's Report
are so voluminous that it has been found impossible to forward them
by the present mail, but they will be sent by the next.
Trusting my proceedings may meet your approval, I have, &c.
(Signed) JOHN H. GLOVER.
Mr. Hoppin to the Marquis of Salisbury.
Immediate.] LEGATION OF THE UNITED STATES,
London, November 81, 1879.
MY LORD : I received last night a cable dispatch from Mr. Evarts,
requesting me to ask your lordship when he might expect an answer
to Mr. Welsh's notes of the 13th of August last, in relation to the
damages sustained by citizens of the United States in Fortune Bay
in January, 1878.
As I am instructed to reply by telegraph I venture to solicit your
lordship to give an early answer to Mr. Evarts's inquiry.
I have, &c.,
W. J. HOPPIN.
The Marquis of Salisbury to Mr. Hoppin.
FOREIGN OFFICE, November 24, 1879.
SIR: I have the honor to acknowledge the receipt of your letter
marked " Immediate," of the 21st instant, informing me that you had
received on the previous evening a cable dispatch from Mr. Evarts,
requesting you to inquire of me when an answer might be expected to
Mr. Welsh's notes of the 13th of August last in relation to the dam-
ages sustained by citizens of the United States in Fortune Bay in
January, 1878, and I have to state to you in reply that some delay has
arisen owing to the necessity of a reference to Newfoundland, but that
a communication will be addressed to you in answer to the notes in
question at as early a date as possible.
I have, &c., SALISBURY.
Mr. Evarts to Mr. Hoppin.
[Telegram.]
WASHINGTON, February 5, 1880.
HOPPIN, Charge, London:
(Directing him to inquire at what time an answer in respect of the
Fortune Bay claims might be expected, and to express the great
chagrin of this government that no answer had already been made.)
EVARTS, Secretary.
PERIOD FROM 1871 TO 1905. 679
Mr. Hoppin to Mr. Evarts.
No. 143.] LEGATION OF THE UNITED STATES,
London, February 7, 1880.
(Received February 24.)
SIR : I have the honor to acknowledge the receipt yesterday of your
dispatch in cipher relating to the great delay of the British Govern-
ment in answering our claim for the Fortune Bay damages. I knew
that Lord Salisbury had been seriously ill for some time past at Hat-
field, and I ascertained at the foreign office, where I made immediate
inquiries, that his illness still continued and that he was not attend-
ing to business. I therefore made an appointment with Sir Julian
Pauncefote, who is in charge of the foreign office, Lord Tenterden
being absent, for an interview to-day. I have just returned from
this interview.
I called his attention in the course of it to the fact that our claim
was presented as early as the 13th of August; that Lord Salisbury
promised on the 16th it should receive immediate attention ; that his
lordship assured us on the 24th of November that an answer should
be sent at as early a date as possible, and that nearly two months and
a half had now elapsed without our having been favored with one.
I then expressed the chagrin you felt at this delay, and gave him a
copy of the translation of your cipher telegram.
Sir Julian admitted the delay, and said that it arose in part from
the importance of the questions involved in the discussion ; that after
the claim had been received it was thought advisable to consult the
authorities in Newfoundland; that some time elapsed before their
answer arrived, when the matter was placed in his (Sir Julian's)
hands to prepare a case upon it for submission to the law officers of
the crown; that these gentlemen had the case before them still, the
reason for their delay being the great importance of the points in-
volved, and also the accumulation of references in other matters
which had been made to them during the recess of Parliament.
Sir Julian promised that he would communicate with them immedi-
ately and press for a report, and would send them a copy of your
telegram to hasten their action. He said, also, that he should send
a copy of this to Lord Salisbury, notwithstanding his physician's
injunctions that his lordship should abstain from all business. Fin-
ally he declared that I might expect to receive on Monday, for com-
munication to yourself, something more definite in relation to this
matter.
I have, &c., W. J. HOPPIN.
Mr. Hoppin to Mr. Evarts.
No. 147.] LEGATION OF THE UNITED STATES,
London, February 10, 1880.
(Received February 24.)
SIR : Referring to my No. 143, of the 7th instant, I have the honor to
state that up to this time I have not received any further communica-
tion from the foreign office as to when we may expect an answer to our
Fortune Bay claims, although, as I informed you both by that dis-
680 CORRESPONDENCE, ETC.
patch and by cable, Sir Julian Pauncefote gave me to understand he
should send me more definite information on that point yesterday.
I presume that his silence arises from Lord Salisbury's continued
illness. It is possible a note may arrive after the closing of the bag.
Whenever it comes I shall send you the substance of it by cable.
It is proper for me to state, in addition to what I wrote you on Sat-
urday, that Sir Julian Pauncefote intimated that they would probably
be able to receive the opinions of the law officers of the crown very
shortly, so that with the additional delay of reconsidering the matter
in the foreign office, we might rely upon having a reply certainly
within a month from the present time ; but he preferred I should make
no positive statement on this point until I should hear from him
again.
I have, &c., W. J. HOPPIN.
Mr. Hoppin to Mr. Evarts.
No. 150.] LEGATION or THE UNITED STATES,
London, February 14, 1880.
(Received February 24.)
SIR: Referring to my Nos. 143 and 147, of the 7th and 10th in-
stant, I have the honor to inclose herewith a copy of a note which I
received late in the evening of the 13th instant from Sir Julian
Pauncefote, desiring me to convey to you the regrets of Her Majesty's
Government for their unavoidable delay in answering your note in
relation to the Fortune Bay claims. It will be observed that he
gives the same reasons for his delay, and announces the same intention
to expedite the action of the government here in this matter, which
he stated to me at our interview on the 7th instant, and which I
had the honor to communicate to you in the dispatches above men-
tioned and in my telegrams of the llth and 13th instant.
I have, &c.,
W. J. HOPPIN.
[Inclosure.]
Sir Julian Pauncefote to Mr. Hoppin.
FOREIGN OFFICE, February 12, 1880.
SIR: With reference to the telegram addressed to you by Mr.
Evarts relative to the Fortune Bay question, a copy of which you
communicated to me, I have the honor to request that you will con-
vey to Mr. Evarts the regret of Her Majesty's Government at the
delay which has unavoidably occurred in answering the claim of the
United States Government. On receipt of the report upon the case,
which had been called for from the Government of Newfoundland, it
was found necessary to refer certain points to the law officers of the
crown for their opinion, and owing to the great pressure of business
after the Parliamentary recess, and on the reopening of the law
courts, as well as from the voluminous character of the documents
submitted to them, they have been unable up to the present time to
complete their examination of the case.
They will be immediately requested to expedite their report, and as
early as possible after the receipt of it I shall not fail to make known
PERIOD FROM 1871 TO 1905. 681
to you, for communication to your government, the views of Her
Majesty's Government on the question.
I have, &c.,
In the absence of Lord Salisbury :
JULIAN PAUNCEFOTE.
Mr. Hop pin to Mr. Evarts.
LEGATION or THE UNITED STATES,
London (Saturday, 5 p. m.), February 14, 1880.
DEAR MR. EVARTS : My attention has just been called to the passage
in yesterday's Times, which I have marked with red pencil, in which
a question is asked of the under foreign secretary about the Fortune
Bay claims.
I have no time to inclose this in a regular dispatch.
Very respectfully, &c.,
W. J. HOPPIN.
[Inclosure.]
[The Times, Friday, February 13, 1880.]
HOUSE or COMMONS, Thursday, February 12.
CANADIAN AND NEWFOUNDLAND FISHERIES.
Mr. Gourley asked whether the claim of the United States Govern-
ment for $103,000 for damages alleged to have been done by New-
foundland fishermen in Fortune Bay to the Massachusetts fishing
fleet had been amicably arranged ; what measures were being adopted
for the purpose of abrogating or amending clause 33 of the Treaty
of Washington relative to the Canadian and Newfoundland inshore
fisheries ; and whether steps were being taken for the purpose of ascer-
taining if the proviso of the convention of 1818, which admits Ameri-
can fishermen to enter British North American bays and harbors for
the purpose of shelter, repairing damages, and purchase of wood and
water, was intended to exclude them from going inshore to traffic,
transship, fish, purchase stores, mend nets, and hire seamen.
Mr. BOURKE. The claim of the United States Government for dam-
ages alleged to have been done by Newfoundland fishermen in Fortune
Bay is still under the consideration of Her Majesty's Government.
No measures are being adopted for the purpose of abrogating or
amending clause 33 of the Treaty of Washington. The extent of the
fishing privileges accorded to the United States on the shores of Can-
ada and Newfoundland is laid down in the convention of 1818 and
in the Treaty of Washington of 1871. Her Majesty's Government
have not at present found it necessary to make any communication to
the United States Government with a view of defining more precisely
the exact interpretation of the language of those treaties.
Mr. Gourley said that on an early day he would call attention to
the convention of 1818 between this country and the United States
relative to fisheries.
682 CORRESPONDENCE, ETC.
Mr. Evarts to Mr. Hoppin.
[Telegram.]
WASHINGTON, February %6, 1880.
HOPPIN, Charge, London:
(Stating the increased chagrin with which this government learns,
from his No. 147, of there being even a possibility of an additional
month's delay, and directing him to urge Her Majesty's Government
to avoid it if possible.)
EVARTS.
Mr. Hoppin to the Marquis of Salisbury.
LEGATION OF THE UNITED STATES,
London, February 27, 1880.
MY LORD: I have the honor to acquaint you that I received from
the honorable the Secretary of State, last evening, a further telegram
in relation to the delay of Her Majesty's Government in answering
our claims for damages on account of the proceedings at Fortune
Bay.
Your lordship will be good enough to remember that on the 7th
instant, in the absence of your lordship, I had a conversation with Sir
Julian Pauncefote at the foreign office on this subject, and gave him
a copy of the cable dispatch I had received from Mr. Evarts the day
before.
Afterwards, on the 12th instant, I received from Sir Julian a note
in relation to this matter, a copy of which I sent to Mr. Evarts on the
14th, having already telegraphed the substance of it to him on the
13th instant.
During our conversation on the 7th of February, when I pressed Sir
Julian Pauncefote for an approximate statement of the time within
which we might expect your lordship's reply to our claims, he inti-
mated that it would certainly be given within a month from that
date, and I so informed Mr. Evarts in a dispatch of the 10th of
February.
In the cable message which I have now received, Mr. Evarts states
that he learns with "' increased chagrin," from my dispatch to him
last mentioned, " of even a possible further delay of one month," and
he instructs me to " urge its avoidance if possible."
I lose no time, therefore, in bringing this subject again to your
lordship's attention, and in expressing the disquiet which Mr. Evarts
feels that an answer to these claims which were brought to the notice
of Her Majesty's Government so long ago as the 13th of August last
may possibly be still further delayed.
I have, &c., W. J. HOPPIN.
TJie Marquis of Salisbury to Mr. Hoppin.
FOREIGN OFFICE, March 0, 1880.
SIR : I have the honor to acknowledge the receipt of your commu-
nication of the 27th ultimo, informing me that you had'ori the even-
ing of the preceding day received a further telegram from Mr. Evarts
PERIOD FROM 1871 TO 1905. 683
in relation to the delay of Her Majesty's Government in replying to
the claim put forward by the United States Government in connec-
tion with the occurrences at Fortune Bay in January, 1878, and I
have to state to you with reference thereto, that the report of the law
officers of the crown upon the case has now been received, and that
therefore the reply of Her Majesty's Government will be sent with the
least possible delay, having regard to the question under considera-
tion.
I have, &c., SALISBURY.
The Marquis of Salisbury to Mr. Hoppin.
FOREIGN OFFICE, April 3, 1880.
SIR: In the note which I had the honor to address to you on the
12th of February I explained the reason why a certain time has un-
avoidably elapsed, before Her Majesty's Government were in a posi-
tion to reply to Mr. Welsh's notes of the 13th of August last, in
which he preferred, on the part of your government, a claim for
$105,305.02, as compensation to some United States fishermen, on
account of losses stated to have been sustained by them through cer-
tain occurrences which took place at Fortune Bay, Newfoundland, on
the 6th of January, 1878. The delay which has arisen has been
occasioned by the necessity of instituting a very careful inquiry into
the circumstances of the case, to which, in all its bearings, Her
Majesty's Government were anxious to give the fullest consideration
before coming to a decision. Her Majesty's Government having now
completed that inquiry, so far as lies within their power, I beg leave
to request you to be so good as to communicate to your government
the following observations on the case.
In considering whether compensation can properly be demanded
and paid in this case, regard must be had to the facts as established,
and to the intent and effect of the articles of the Treaty of Washing-
ton and the convention of 1818 which are applicable to those facts.
The facts, so far as they are known to Her Majesty's Government,
are disclosed by the affidavits contained in the inclosed printed paper,
which, for convenience of reference, have been numbered in consecu-
tive order. Nos. 1 and 2 were received by Her Majesty's Government
from his excellency the governor of Newfoundland. Nos. 3 to 10,
inclusive, were attached to the report made by Captain Sulivan, of
Her Majesty's ship Sirius, who was instructed to make an inquiry
into the case. These were communicated to Mr. Welsh with my note
of the. 7th of November, 1878. Nos. 11 to 16, inclusive, are the affi-
davits of United States fishermen, printed in the New York Herald
of the 28th of January, 1878, and were received by Her Majesty's
minister at Washington. They have not been received officially from
the Government of the United States, but Her Majesty's Government
see no reason to doubt their authenticity. Nos. 17 to 22 were annexed
to Mr. Welsh's note of the 13th of August last.
A careful examination of the above evidence shows that on the
day in question a large number of the crews of the United States
fishing vessels came on shore and from the beach barred the herrings,
the ends of their seiners being secured to the shore. That the fisher-
684 CORRESPONDENCE, ETC.
men of the locality remonstrated against these proceedings, and, upon
their remonstrance proving unavailing, removed the nets by force.
Such being the facts, the following two questions arise :
1. Have United States fishermen the right to use the strand for
purposes of actual fishing?
2. Have they the right to take herrings with a seine at the season
of the year in question, or to use a seine at any season of the year for
the purpose of barring herrings on the coast of Newfoundland?
The answers to the above questions depend on the interpretation of
the treaties.
With regard to the first question, namely, the right to the strand
fishery, I would observe that article 1 of the convention between
Great Britain and the United States of the 20th of October, 1818,
secured to citizens of the United States the right, in common with
British subjects, to take fish of every kind on certain specified por-
tions of the cost of Newfoundland, and to use the shore for the
purposes of purchasing wood and obtaining water, and for no other
purpose whatever.
Articles XVIII and XXXII of the Treaty of Washington super-
added to the above-mentioned privileges the right for United States
fishermen to take fish of every kind (with certain exceptions not rele-
vant to the present case) on all portions of the coast of that island,
and permission to land for the purpose of drying their nets and cur-
ing their fish, " provided that in so doing they do not interfere with
the rights of private property or with British fishermen in the peace-
able use of any part of the said coast in their occupancy for the same
purpose."
Thus whilst absolute freedom in the matter of fishing in territorial
waters is granted, the right to use the shore for four specified pur-
poses alone is mentioned in the treaty articles, from which United
States fishermen derive their privileges, namely, to purchase wood,
to obtain water, to dry nets, and cure fish.
The citizens of the United States are thus by clear implication
absolutely precluded from the use of the shore in the direct act of
catching fish. This view was maintained in the strongest manner
before the Halifax Commission by the United States agent, who,
with reference to the proper interpretation to be placed on the treaty
stipulations, used the following language : " No rights to dp anything
upon the land are conferred upon the citizens of the United States
ander this treaty, with the single exception of the right to dry nets
and cure fish on the shores of the Magdalen Islands, if we did not
possess that before. No right to land for the purpose of seining from
the shore ; no right to the ' strand fishery,' as it has been called ; no
right to do anything except, water-borne on our vessels, to go within
the limits which had been previously forbidden.
" So far as the herring trade goes, we could not if we were disposed
to carry it on successfully under the provisions of the treaty, for this
herring trade is substantially a seining from the shore, a strand fish-
ing, as it is called, and we have no right anywhere conferred by this
treaty to go ashore and seine herring any more than we have to estab-
lish fishtraps."
Her Majesty's Government, therefore, cannot anticipate that any
difference of opinion will be found to exist between the two govern-
ments on tliis point.
PERIOD FROM 18*71 TO 1905. 685
The incident now under discussion occurred on that part of the
shore of Fortune Bay which is called Tickle Beach, Long Harbor.
On this beach is situated the fishing settlement of Mark Bolt, a
British fisherman, who in his evidence, taken upon oath, deposes as
follows :
" The ground I occupy was granted me for life by government, and
for which I have to pay a fee. There are two families on the beach ;
there were three in winter. Our living is dependent on our fishing
off this settlement. If these large American seines are allowed to be
hauled, it forces me away from the place."
John Saunders, another British fisherman of Tickle Beach, deposed
that the United States fishermen hauled their seine on the beach
immediately in front of his property.
The United States fishermen, therefore, on the occasion in question,
not only exceeded the limits of their treat}' privileges by fishing from
the shore, but they " interfered with the rights of private property
and with British fishermen in the peaceable use of that part of the
coast in their occupancy for the same purpose," contrary to the express
provisions of Articles XVIII and XXXII of the Treaty of Wash-
ington.
Further, they used seines for the purpose of in-barring herrings,
and this leads me to the consideration of the second question, namely,
whether United States fishermen have the right to take herrings with
a seine at the season of the year in question, or to use a seine at any
season of the year for the purpose of barring herrings on the coast of
Newfoundland.
The in-barring of herrings is a practice most injurious, and, if con-
tinued, calculated in time to destroy the fishery; consequently it has
been prohibited by statute since 1862.
In my note to Mr. Welsh, of the 7th of November, 1878, I stated
" that British sovereignty, as regards these waters, is limited in its
scope by the engagements of the Treaty of Washington, which cannot
be modified or affected by any municipal legislation," and Her Majes-
ty's Government fully admit that United States fishermen have the
right of participation on the Newfoundland inshore fisheries, in com-
mon with British subjects, as specified in Article XVIII of that
treaty. But it can not be claimed, consistently with this right of par-
ticipation in common with the British fishermen, that the United
States fishermen have any other, and still less that they have greater
rights than the British fishermen had at the date of the treaty.
If, then, at the date of the signature of the Treaty of Washington,
certain restraints were, by the municipal law, imposed upon the
British fishermen, the United States fishermen were, by the express
terms of the treaty, equally subjected to those restraints, and the obli-
gation to observe in common with the British the then existing local
laws and regulations, which is implied by the words " in common"
attached to the United States citizens as soon as they claimed the ben-
efit of the treaty. That such was the view entertained by the Gov-
ernment of the United States during the existence of the reciprocity
treaty, under which United States fishermen enjoyed precisely the
same rights of fishing as they do now under the Treaty of Washing-
ton, is proved conclusively by the circular issued on the 28th of March,
1856, to the collector of customs at Boston, which so thoroughly ex-
686 CORBESPONDENCE, ETC.
pressed the views of Her Majesty's Government on this point that I
quote it here in extenso.
" DEPARTMENT OF STATE,
"Washington, March 28, 1856.
" SIR : It is understood that there are certain acts of the British
North American colonial legislatures, and also, perhaps, executive
regulations intended to prevent the wanton destruction of the fish
which frequent the coasts of the colonies, and injuries to the fishing
thereon. It is deemed reasonable and desirable that both the United
States and British fishermen should pay a like respect to such laws
and regulations which are designed to preserve and increase the pro-
ductiveness of the fisheries on those coasts. Such being the object of
these laws and regulations, the observance of them is enforced upon
the citizens of the United States in the like manner as they are ob-
served by British subjects. By granting the mutual use of the inshore
fisheries, neither party has yielded its right to civic jurisdiction over
a marine league along its coasts.
" Its laws are as obligatory upon the citizens or subjects of the other
as upon its own. The laws of the British provinces, not in conflict
with the provisions of the reciprocity treaty, would be as binding
upon the citizens of the United States within that jurisdiction as upon
British subjects. Should they be so framed or executed as to make
any discrimination in favor of British fishermen, or to impair the
rights secured to American fishermen by that treaty, those injuriously
affected by them will appeal to this government for redress.
" In presenting complaints of this kind, should there be cause for
doing so, they are requested to furnish the Department of State with
a copy of the law or regulation which is alleged injuriously to affect
their rights or to make an unfair discrimination between the fisher-
men of the respective countries, or with a statement of any supposed
grievance in the execution of such law or regulation, in order that the
matter may be arranged by the two governments.
" You will make this direction known to the masters of such fishing
vessels as belong to your port hi such manner as you may deem most
advisable.
(Signed) " W. L. MARCY.
" COLLECTOR OF THE CUSTOMS, Boston"
I have the honor to inclose a copy of an act passed by the colonial
legislature of Newfoundland, on the 27th March, 1862, for the pro-
tection of the herring and salmon fisheries on the coast, and a copy of
cap. 102 of the consolidated statutes of Newfoundland, passed in 1872.
The first section of the act of 1862, prohibiting the taking of herrings
with a seine between the 20th day of October and the 12th day of
April, and, further, prohibited the use of seines at any time for the
purpose of barring herrings. These regulations, which were in force
at the date of the Treaty of Washington, were not abolished, but con-
firmed by the subsequent statutes, and are binding under the treaty
upon the citizens of the United States in common with British
subjects.
The United States fishermen, therefore, in landing for the pur-
pose of fishing at Tickle Beach, in using a seine at a prohibited time,
and in barring herrings with seines from the shore exceeded their
treaty privileges, and were engaged in unlawful acts.
PERIOD FROM 1811 TO 1905. 687
Her Majesty's Government have no wish to insist on any illiberal
construction of the language of the treaty, and would not consider it
necessary to make any formal complaint on the subject of a casual in-
fringement of the letter of its stipulations which did not involve any
substantial detriment to British interests and to the fishery in general.
An excess on the part of the United States fishermen of the precise
limit of the rights secured to them might proceed as much from
ignorance as from wilfulness; but the present claim for compensa-
tion is based on losses resulting from a collision which was the direct
consequence of such excess, and Her Majesty's Government feel bound
to point to the fact that the United States fishermen were the first
and real cause of the mischief, by overstepping the limits of the
privileges secured to them in a manner gravely prejudicial to the
rights of other fishermen.
For the reasons above stated, Her Majesty's Government are of
opinion that, under the circumstances of the case as at present within
their knowledge, the claim advanced by the United States fishermen
for compensation on account of the losses stated to have been sus-
tained by them on the occasion in question is one which should not be
entertained.
Mr. Evarts will not require to be assured that Her Majesty's Gov-
ernment, while unable to admit the contention of the United States
Government on the present occasion, are fully sensible of the evils
arising from any difference of opinion between the two governments
in regard to the fishery rights of their respective subjects. They have
always admitted the incompetence of the colonial or the imperial
legislature to limit by subsequent legislation the advantages secured
by treaty to the subjects of another power. If it should be the opin-
ion of the Government of the United States that any act of the
colonial legislature subsequent in date to the Treaty of Washington
has trenched upon the rights enjoyed by the citizens of the United
States in virtue of that instrument, Her Majesty's Government will
consider any communication addressed to them in that view with a
cordial and anxious desire to remove all just grounds of complaint.
I have, etc.,
SALISBURY.
Appendix A. — Collected affidavits of American fishermen sub-
mitted to the British Government.
Appendix B. — Statutes of Newfoundland applicable to the fisheries.
(See ante, pp. 161-200.)
APPENDIX A.
(1.)
Deposition of Alfred Noel.
NEWFOUNDLAND, CENTRAL DISTRICT, ST. JOHN'S, to wit:
The examination of Alfred Noel, of St. John's aforesaid, master
mariner, taken upon oath, and who saith :
I am master of the schooner Nautilus of this port, and on the 19th
day of December last I was at Long Harbour, in Fortune Bay, in the
Nautilus, which was anchored off Woody Island. I had a crew of
688 CORRESPONDENCE, ETC.
seven men, and I was there engaged in the herring fishery. There
were several American schooners; seven of them were lying off
Woody Island, and two French vessels. This island forms the har-
bour within half a mile of the narrows of Long Harbour ; and other
American schooners and Newfoundland fishing craft were inside
Woody Island, which is the inside part of Long Harbour. All the
craft there, English and American, were hauling herrings in seines
and nets, and the Americans were purchasing herring from the Eng-
lish. Everything went off quietly, and the greatest harmony pre-
vailed until Sunday, the 6th day of January, when about half-past 2
o'clock in the afternoon five seines, belonging to the American schoon-
ers, were put into the water by their crews at the beach on the north-
east side of Long Harbour. I know two of the captains by name,
Dago and Jacobs, belonging to Gloster, United States, but do not
know the names of their schooners. The whole five seines were
barred full of herrings, when the English crews of the crafts belong-
ing to Fortune Bay ordered them to take their seines up or they
would take them up for them ; and the Fortune Bay men, finding they
would not do as they were requested, then hauled up two of the
American seines, but without any damage or injury, and two were at
the same time taken up by the Americans; and at the same time a
seine belonging to Captain Dago was taken up by the Fortune Bay
men, the herrings thrown out, and the seine was torn up and de-
stroyed. Before this occurrence on the said Sunday, one of the
American schooners had a seine barred with herrings on the beach at
Long Harbour for seven days, and it was not at any time meddled
with by the Fortune Bay men or any one. Some of the Fortune Bay
men had nets out in the water on that Sunday, and the same had
been there during the week, but none of the Newfoundland fishermen
attempted to haul herrings on Sunday at any time while I was at
Long Harbour. The Americans' practice had been until lately to
purchase herring from the Newfoundland fishermen in Fortune Bay,
but this year and last year the Americans have brought their own
seines to haul herring for themselves. The American seines are 30
fathoms deep and 200 fathoms long, while those used by our fisher-
men are 12 to 13 fathoms deep and 120 fathoms long. These Ameri-
can seines are used for barring herring in deep water, such as the
Fortune Bay Harbors, viz., Long Harbour, Bay del Nord, and Ren-
contre. Our fishermen never bar herrings, and herrings have never
been barred in Fortune Bay, to my knowledge, until the Americans
brought the large seines I have alluded to into Fortune Bay and used
them there to the disadvantage of our fishermen. This mode of
barring herrings in such harbours as I have mentioned is most de-
structive and ruinous to the herring fishery in those localities. I do
not know the names of the persons who destroyed the seines; there
were about eighty vessels from different harbours of Fortune Bay
at Long Harbour at the time the seine was destroyed by a great lot
of people. I left Long Harbour for St. John's on the 31st day of
January and arrived here on the 4th instant.
ALFRED NOEL.
Sworn before me at St. John's aforesaid, this 8th day February,
A. D. 1878.
(Signed) D. H. PROWSE,
J . P. for Newfoundland,
PERIOD FROM 1871 TO ll'Od. 689
(2.)
Deposition of John Rumsey.
CENTRAL DISTRICT, ST. JOHN'S, to wit:
The examination of John Rumsey, of St. John's, master mariner,
taken upon oath, who saith :
On or about the 14th November last I sailed from St. John's to
Fortune Bay for a cargo of herring. I arrived in Long Harbour,
Fortune Bay, about Christmas last. I found about 200 schooners
there looking for herring; twelve of the schooners were Americans;
my schooner was called the Briton, six hands all told. I got most of
my herring between Christmas and the 8th of January. Most all the
schooners in Long Harbour lay inside of Woody Island. Woody
Island is about three miles from the entrance of Long Harbour. On
the northern side, rather above the island, there is a fine beach about
a mile long. This is the best hauling place in Long Harbour, and
most all the herrings were taken there. It is only this year and last
year that the American schooners have brought down very large seines
for catching herring. I have been informed that some of these seines
were 250 fathoms long and 35 fathoms deep. The seines which our
Newfoundland fishermen use are about 120 fathoms long and from
8 to 13 fathoms deep. In the first week in January there were four
or five American schooners who had the beach above mentioned
barred for herring. The mode of inbarring for herring is as follows :
When a place is selected, generally a smooth beach with deep water
outside free from rocks, a party is sent ashore with a long line from
one end of the seine ; the seine-boat then goes off with the seine, makes
a long sweep, and the other end of the seine is then brought into the
beach also; then the crew begin to haul together on both ends of the
seine with long seine lines running fore and aft up and down the
beach; four or five seines thus barring herring would cover all the
hauling ground on this long beach I have spoken of, and would
occupy all the best ground for hauling herring in Long Harbour.
On the first Sunday in January the beach was barred by four or fivo
large American seines. On that day after dinner, a large number of
people belonging to the crews of the Fortune Bay schooners then
in Long Harbour went over to the beach, and I was informed there
were 600 or 700 Newfoundland fishermen there. The Americans
had barred the herring, and were hauling on their seines on the
Sunday morning. The Newfoundland fishermen told the American
captains to take up their seines or they would take them up for them.
All the American seines were then taken up which were set on a
Sunday except one; this one the American captain who owned it
refused to take up. The Newfoundland fishermen then hauled it
ashore, took the herrings out of the seine, and according as they
hauled the seine out of the water they tore it up. I saw the seine the
next day, Monday, on the beach, and it was completely destroyed :
it was an old second-hand seine, and very rotten. I have been for
thirteen or fourteen years carrying on the herring fishery in Fortune
Bay, and during that time I have never known our Newfoundland
shermen to haul herrings on Sunday. If the American fishermen
were permitted to bar herrings in the way that they were doing at
p.i2i)(H)° — S. l)oc. >>70, til-:!, v<>! '•> ••<
090 COBEESPONDENCE, ETC.
Long Harbour Beach, all the rest of the craft would be deprived of
the best place in the harbor to haul herrings; and such a mode of
fishing for herrings is most injurious to the fishery, and must in
time ruin the herring fishery there. The Americans, in hauling
their long seines, often removed the Newfoundland fishermen's nets
when they came in their way. I have known the Americans last
year to have herrings barred in for a fortnight. Barring kills a
great many herrings, and makes those who are barred in very poor.
I have seen the bottom covered with dead herring after the seine had
been barred for a week. The American schooners heave out their
ballast in the channel between Woody Island and the shore, and if
not prevented, will soon destroy the anchorage there.
JOHN RUMSEY, his x mark.
Sworn before me at St. John's, this 9th day of February, A. D.
1878, having first been read over and explained.
(Signed) D. H. PROWSE,
J. P. for Newfoundland.
(3.)
Deposition of John Saunders.
The examination of John Saunders, of Tickle Beach, Long Har-
bour, taken upon oath, and who saith :
In January last there were a great number, close on 100, schooners
and boats fishing for herring, both American and Newfoundlanders.
The Americans were employing the English to haul their seines for
them. There were some English schooners who had seines also. One
Sunday, I do not know the date, John Hickey laid out a seine, and
was told by the English or Newfoundlanders ito take it up, as it was
Sunday, which he did. The Americans laid out their semes, assisted
by the English employed by them. The Newfoundlanders told them
to take them up, as it was not legal their fishing on that day, being
Sunday; J. McDonald took his up. Jacobs upset his net into Far-
rel's seine, who was employed by him. Farrel was barring for the
Americans, and was not allowed by Jacobs to haul his seine until
the hard weather came. After Jacobs had upset his seine into Far-
rel's he took it up to shoot again, and threatened with the revolver
any one who interfered. Then they told McCauley to take his up,
but he didn't, so the people hauled it in and tore it up.
I don't know any man concerned in the destruction of the net that
I could swear to but one, John Pitman, a servant of Samuel Pardy,
who was at " Jack Fountain."
There was no other reason that I know for destroying nets but for
fishing on Sunday, and because they would not take them up when
they were told. The Americans never hauled a seine before that
day; they always employed the English to use their seines, and
bought fish from the English. The only reason that the Americans
laid their seines out that day was because there were plenty of her-
rings, and no Englishman would haul them, being Sunday, excepting
Hickey, who had been compelled to take his seine up.
Q. Where does Philip Farrel live? — A. In Bay-de-North, and so
does Thomas Farrel.
PElilUD TitOM 1871 TO 1905. 691
Q. Was any obstruction or hindrance placed in the way of the
Americans before or after that Sunday? — A. No.
Q. Did they remain in the harbour until the close of the season;
until the herrings slacked away were any Americans compelled to
leave the coast after this circumstance? — A. No; there was nothing
to prevent their remaining, and they remained for some days, until
the weather became soft, and there were no more herrings in the bay.
Most of them left, but one American schooner remained about three
weeks after that, when another lot of herrings came into the bay, and
he filled up and went away the next fair wind. Jim Boy was the
captain's name.
Q. Do you know any American of the name of Dago? — A. Yes;
he has part in this seine. The Americans hauled their seine on the
beach immediately in front of my property.
Q. Do you know the names of the schooners? — A. No.
Q. Do you know the names of the owners of the seine? — A. Yes;
Captain Dago and McCauley.
Q. Do you know anything the Americans did by way of revenge? —
A. The Americans, in revenge for the destruction of the net, after-
wards drifted their vessels all about the bay or river with their
anchors hanging, and so hooked and destroyed many nets, about fifty
or sixty. I should think. The name of one of these captains was
Smith — but I don't know the name of his vessel — and the other was
Pool. We all believe that this was done in revenge. They were pre-
tending to be at anchor where there was about fifty fathoms of water;
but were drifting all over the bay and hooking the nets; there was
no weather to cause them to drift. Our small boats were anchored
off the beach. We had never any difficulty with the Americans before
this, but were always on good terms with them.
(Signed) JOHN SAUNDERS. his x mark.
Sworn before me at Tickle Beach, Long Harbour, this 13th day of
June, A. D. 1878.
(Signed) GEO. L. SULLIVAN,
Captain and Senior Officer on the Coast of Newfoundland.
(4.)
Deposition of Mark Bolt.
The examination of Mark Bolt, of Tickle Beach, Long Harbour,
taken upon oath, and who saith :
I am a native of Dorsetshire, England. I have been in this country
twenty-one years, and have been fishing all that time. I have lived
in this neighborhood fourteen or fifteen years, and at Tickle Beach
since last fall. The ground I occupy (150 feet) was granted me for
life by Government, and for which I have to pay a fee. There are
two families on the beach: there were three in the winter. Our
living is dependent on our fishing: off this settlement. If these large
American seines are allowed to be hauled it forces me away from the
place.
One Sunday in January last John Hickey, Newfoundlander, came
first and hove his seine out. Five Newfoundlanders came and told
692 COBBESPONDEJSCE, ETC.
him to take it up, and he did not ; then others came and insisted upon
it, then he took it up. If he had then refused to take it up it would
have been torn up.
Then Jacobs, an American, came and laid his seine out and hauled
about 100 barrels of herring in the big American seine, and capsized
into Tom Farrel's seine — a Newfoundland fisherman employed by
Jacobs and fishing for him.
Philip Farrel was also fishing for the Americans, being master of
McCauley's seine. The Newfoundlanders then capsized Tom Farrel's
seine of fish, who was only fishing for the Americans. After this
Jim Macdonald, another American, threw out his seine. Then the
geople went and told Macdonald that he was not allowed to fish on
undays, and he must take his seine up ; and he took up his seine and
carried it on board his vessel. Jacobs would not allow his seine to
be touched, but drew a revolver. They went to McCauley, an Ameri-
can, who had laid his seine out for barring herring; this American
also employed a Newfoundlander to lay his seine out. The New-
foundlanders said it should not be done on a Sabbath day, and they
resolved to tear up all the seines they could get hold of. They man-
aged to seize McCauley's and tore it up. They would have torn up
any they could have got at if laid out, whether English or American,
because it was Sunday. The Americans do not bar fish. This was the
first time I ever knew them to do so ; they usually buy the fish from
the Newfoundlanders, and also barter flour and pork for them, and
I have never known anything to complain of against them previous
to this.
Q. Did the American schooners continue to fish after the destruc-
tion of McCauley's seine ? — A. Yes.
They (the Americans) continued to fish, and left about the usual
time, the 10th March. I do not know any reason for the conduct
towards the Americans except that they were fishing on Sunday. I
do not know what became of the nets that were torn up ; it was left
on the beach for some days, and then taken away. I do not know who
took it away ; the Americans, perhaps, but I don't know.
The Americans were often set afterwards, but not on Sunday ; the
Americans did not leave off catching herring after this on other days.
The English did not prevent the Americans hauling their seines, but
the Americans usually employed the English to haul them, as their
crews were not sufficient in number, and are not acquainted with the
work. The American crews are employed salting and freezing the
fish, while the English employed by them with the American seines
are catching them. The seine torn up was being worked by an Eng-
lishman for McCauley, the American, namely, Philip Farrel.
Jacobs' seine was in the water a night and a day. I was not aware
that it was illegal to haul or catch herring by or in a seine at thai
time of the year, nor that barring is prohibited at all seasons, noi
that the seine must be shot and forthwith hauled, but have heard
some reports to that effect.
The nearest magistrate is at St. Jacques, about 25 or 30 miles from
this, and there is no means of communicating with hhr excepting by
a sailing boat.
PERIOD PROM 18*71 TO 1905. 693
The seine that was destroyed belonged to men called Dago and
McCauley. who, I believe, were each of them captains of schooners,
but the names of the vessels I do not know.
(Signed) MARK BOLT.
Sworn before me at Tickle Beach, Long Harbour, this 13th day of
June, A. D. 1878.
(Signed) GEO. L. SULJVAN,
Captain and Senior Officer on the Coast of 'Newfoundland.
(5.) •
Deposition of Richard Hendriken.
The examination of Richard Hendriken, of Hope Cove, Long Har-
bour, taken upon oath, and who saith :
I have been nine years in Long Harbour. I was here in January
last, when the American seine was destroyed. It was destroyed on
account of barring herring on Sunday. I was watching their pro-
ceedings from the point opposite; they laid their seine out and went
to haul it in because the English would not haul it in on Sunday,
and the bay was full of fish. The fish would have remained. The
Americans generally employ some Englishmen to work with their
own crew ; they don't generally lay out their own seines. Captain Dago
and Samuel Jacobs would persist in hauling, and hauled once and
barred them in Farrel's net. Farrel was working for him, and had
been barring herrings for several days — perhaps about a fortnight—
by the Americans' orders. I believe it is illegal to bar herrings; it
destroys the fish, but we have no power to stop it. It is no good tell-
ing a magistrate ; the Americans take no notice of them. The near-
est magistrate to this place is at Harbour Briton, 25 or 30 miles off.
The only thing to let people know what is right and what is wrong
is to have a notice-board in each harbour, and some heavy fine im-
posed on law-breakers.
James Tamel is harbour-master.
I don't know if he is a special constable or not; but Mr. Enburn
told me he was to see the Yankees did not heave their ballast over,
and that their measures were correct, but they would not listen to
him. They hove their ballast overboard, and had tubs 22 inches in
depth instead of 16 inches ; in these tubs they measured the fish they
bought from the New foundlanders, and they would not alter them.
The fish are sold to the Americans by the barrel. For 100 barrels it
is usual to pay for 90, which is considered fair, but a flour barrel cut
down to 16 inches in depth is the proper measure; they only cut
them to 22 inches or more, and insist on having them filled. The
vessels from St. John's and Halifax always take the proper size tubs,
but the Americans constantly overreach us, and choose the most
ignorant to deal with, or those who are not so sharp as themselves.
They generally otherwise behave well, and we have never had any
quarrel with them before, but have always been on good terms. If
the natives did not see the laws carried out themselves there might
as well be no laws, for there is often no one else to enforce it. It is
694 CORRESPONDENCE, ETC.
the only way I know, and is pretty well understood by both foreigners
and natives.
(Signed) RICHARD HENDRIKEN, his x mark.
Sworn before me at Tickle Beach, Long Harbour, this 14th day of
June, A. D. 1878.
(Signed) GEO. L. SULJVAN,
Captain and Senior Officer on the Coast of Newfoundland.
(6.)
Deposition of Ambrose Pope.
The examination of Ambrose Pope, of Stone Cove, Long Harbour,
taken upon oath, and who saith :
I was at Tickle Beach on a Sunday in January last. I don't know
the date. I saw the Newfoundlanders hauling a seine and leave it on
the beach ; it was torn in hauling it on shore. It was evening when I
saw the seine hauled on the beach, and it was laying there when I left
the beach.
I don't know if any was carried away. I don't know anything
more about it. The Americans we thought had no right to haul their
seines on Sunday.
(Signed) AMBROSE POPE, his x mark.
Sworn before me at Anderson Cove, this 15th day of June, A. D.
1878.
(Signed) GEO. L. SULJVAN,
Captain and Senior Officer on the Coast of Newfoundland.
(TO
Deposition of James Tharnell.
The examination of James Tharnell, of Anderson's Cove, Long
Harbour, taken upon oath, and who saith :
I am a special constable for this neighborhood ; I did not see any-
thing of the alleged outrage last January, but I heard something
about it; I believe some of the men named Pope were on the beach,
but which I do not know.
Q. Have you formed any opinion as constable as to the cause of the
dispute ? — A. Mr. Snellgrove, of the customs, and myself, from what
we were informed of the circumstances, were of opinion that the
Americans were acting illegally in shooting their seines, but notwith-
standing that, nothing would have been said to them for that had
it not been on the Sabbath day. The men forbid them hauling seines
on the Sabbath day, and told them to take them up or they would take
them up for them, and what annoyed them so much was that the
Americans drew their revolvers ; probably, if it had not been for the
threat of the revolvers the seines would only have been taken up, and
not torn. They asked him three times to take them up before they
did so themselves.
The people were not aware that it was illegal to set the seines that
time of the year, and were only prompted to their act by the fact that
PERIOD FROM 1871 TO 1905. 695
it was Sunday. We all consider it to be the greatest loss to us for the
Americans to bring those large seines to catch herring. The seines
will hold 2.000 or 3,000 barrels of herring, and, if the soft weather
continues, they are obliged to keep them in the seines for sometimes
two or three weeks, until the frost comes, and by this means they
deprive the poor fishermen of the bay of their chance of catching any
with their small nets, and then, when they have secured a sufficient
quantity of their own, they refuse to buy of the natives.
If the Americans had been allowed to secure all the herrings in the
bay for themselves, which they could have done that day, they would
have filled all their vessels, and the neighboring fishermen would have
lost all chance the following week-days. The people believed that
they (the Americans) were acting illegally in thus robbing them of
their fish. If the natives had not defended themselves by enforcing
the law, there was no one else to do it. I was sworn in as a special
constable by Mr. Herbert, the magistrate of Harbour Briton, last
October.
On the arrival of the Americans I showed my authority, signed by
Mr. Herbert, and they laughed at it, and said it had no stamp, and
they didn't, therefore, recognize it.
I told them the lawful size of a tub — sixteen gallons — and they said
they required a brand on it. I have no means of branding tubs:
there is no means to brand on the coast, and it is not the custom. I
don't know if it is the custom at St. John's to brand them. I have
cautioned the Americans about throwing ballast out inside Hoodey's
Island, where it is very shallow; but they have continually done so
notwithstanding up to this. -There are now several shallow places
there and in the cove, where the Americans have been in the habit of
throwing out their ballast, and small vessels now, of twenty-eight to
thirty tons, repeatedly ground on this ballast there thrown out by the
Americans. I believe there was less thrown out last winter after I
spoke to them about it; but I have no power, moral or otherwise, to
enforce any rules, and they don't seem to care much about me.
(Signed) JAMES THARNELL, his x mark.
Sworn before me at Tickle Beach, Long Harbour, this 14th day of
June, A. D. 18T8.
(Signed) GEO. L. SULIVAN,
Captain and Senior Officer on the Coast of Newfoundland.
(8.)
Deposition of George Sncllgrove.
The examination of George Snellgrove, of St. Jacques, Fortune
Bay, taken upon oath, and who saith :
I am sub-collector of customs for the district of Fortune Bay. I
went to Long Harbour on the 8th January, two days after the dispute
between the Americans and Newfoundland fishermen had taken place.
Captains Jacobs and Dago informed me that an American seine
had been taken up by the Newfoundland fishermen on the Sunday
previous and destroyed; that the seine belonged to Dago and
McCauley, and that they had other seines out, but they had taken
696 CORRESPONDENCE, ETC.
them up when they found that the other was destroyed. One of these
captains said that the fishermen had threatened to take up the seine
if they didn't themselves. Captain Jacobs showed me a revolver, and
said that he had threatened them with it. I remonstrated with him
for doing so, when he replied that I couldn't suppose that he was
really going to use it; that he only did it to frighten them; he had
taken care there were no charges in it. I said to him, " Do you sup-
pose that you would have got off that beach alive if you had used
it ? " and he said he never intended to use it.
Captain Warren told me that on the fishermen coming to haul in
the seine that Captain Dago hailed them to say that they would take
the seine in themselves if they waited, and that he (Warren) said to
Dago, "It is too late now; you ought to have done it when they
told you first; they are too excited now."
I then communicated with the natives of the place, who related
the circumstances, and gave their reasons that the Americans were
fishing illegally, and would have secured the whole of the fish, which
they considered part of their property, and that they would have been
distressed for the winter. They told me that they had at first told
them to take up their seines, and they refused; that Captain Jacobs
had threatened them with a revolver, but, notwithstanding this, they
had taken up one and destroyed it.
I saw Captain Jacobs several times afterwards, and in the course
of conversation with him I said : " If I had been there you would
not have been allowed to shoot jour seine." " What ! " he said, " could
you prevent me? " I said " Yes; I should have seen the law carried
out and taken your seine and boat, which you forfeited for breaking
the law," and I told him I would take the fine as well of $200, at
which he said : " Do you think I care about paying the fine? I could
pay the fine," by which I understood him to mean that the fine was
not worth considering, as the quantity of fish would have more than
paid for it.
Q. Was there any one in Long Harbour on the Sunday referred to
who could have enforced the law and protected the interests of the
fishermen? — A. No.
Q. Is it not illegal shooting seines at all at that time of the year? —
A. There is an act to that effect, but it has never been carried out in
Fortune Bay, nor are the natives aware of its illegality at that time
of the year, nor would they have molested the Americans had it not
been Sunday, and which they knew it to be not only the law, but the
infallible custom to desist from fishing on that day.
Q. Has there ever been to your knowledge before quarrelsome dis-
putes or ill-feeling between the Americans and native fishermen? —
A. No, never ; always on the best terms.
Q. How long did you remain in Long Harbour? — A. I remained
till the 12th January.
Q. Did you observe during your stay in Long Harbour whether
the three American captains remained and continued to fish or not?—
A. I did. and I know that they continued to fish; they were not
molested as far as I know.
PERIOD FROM 1871 TO 1905. 697
Q. "Was there anything to cause them to leave the harbour, or to
cease fishing? — A. No, and they had not left it when I left. There
were no further disputes to my knowledge afterwards.
GEO. THOS. SNELLGROVE,
Sub-Collector of Her Majesty^ Customs.
Sworn before me at St. Jacques, Fortune Bay, the 17th day of
June, A. D. 1878.
GEO. L. SULIVAN,
Captain and Senior Officer on the Coast of Newfoundland.
(9.)
Deposition of Silas Fudge.
The examination of Silas Fudge, of Bellaram, Fortune Bay, taken
upon oath, and who saith :
I am mate of my father's schooner. I witnessed the disturbance at
Long Harbour on Sunday, the 6th January last. I am certain that it
was on the 6th January it happened.
I saw the seines in the water — two of them American and one
English. We told them to take them up.
John Hickey, the Englishman, took his up. McCauley, the Ameri-
can, who owned the other, refused to take his up. There was another
seine, which I did not see, in the water, belonging to Captain Jacobs.
He had his in the boat at the time. He had shot once and discharged
his seine into Thomas Farrel's, who was working for him, and was
going to shoot his seine out again. I saw it in the boat ready for
shooting when the crowd came over. They first spoke to McDonald,
and asked him if he would take his seine up, and he said, " Yes, if I
am forced; " and they then went to Hickey and told him to take his
up, and he took it up ; then they went to McCauley and asked him to
take his up, and he said he wrould not. They then told him that if he
didn't they would take it up for him. They then went to Jacobs, and
told him they would let go the herring out of the seine of Tom Farrel,
who was an Englishman. Jacobs then drew a revolver, and threat-
ened to shoot any man who touched his property. The crowd were
very excited. I saw them haul McCauley 's seine in and tear it up.
That was the end of the row that day. Farrel had, during the pre-
vious week, secured herring in the American seine, and then had
placed his own round them, and taken up the American's. This was
done before Sunday. It was in this seine of Farrel's that Jacobs
emptied his own seine.
Q. You knew that the American fish were in the Englishman's
seine; why was Farrel's seine allowed to remain? — A. Because he
had not shot it on the Sunday, but on the wreek-day.
Q. Are you aware that it was illegal to use seines to catch herrings
that time of the year? — A. No; I don't know.
Q. Did you believe it to be lawful to use seines for herring that
time of the year? — A. Yes, I thought so, as far as I could understand.
I suppose the Americans thought, with reference to the destruction of
the seine, that we did it in envy of them, but it wasn't; but it was
from regard to the Sabbath, on which day we never fish.
698 CORRESPONDENCE, ETC.
Q. How far from the beach were the American seines shot? —
A. Close to the beach ; the hauling lines were on the beach.
The Americans remained in the bay after the occurrence for several
days; they were never molested or interfered with afterwards; they
continued to fish until they left the harbour ; they were not compelled
to leave the harbour, but I believe they were unsuccessful on account
of the bad weather and for want of frost.
SILAS FUDGE.
Sworn before me at St. Jacques, Fortune Bay, the 17th day of June,
A. D. 1878.
(Signed) GEO. L. SULIVAN,
Captain and Senior Officer on the Coast of Newfoundland.
(10.)
Deposition of John duett.
The examination of John Cluett, of Bellaram, Fortune Bay. taken
upon oath, and who saith:
I was in Long Harbour one Sunday in January last.
Q. Did you see anything of the quarrel between the Americans and
other fishermen? — A. I did.
Q. Tell me what you know of it? — A. They commenced hauling
herrings on Sunday, about midday. The first American seine shot
was Captain Jacobs'. There were two more American seines shot.
There was an Englishman working for the Americans who had a
seine moored there for several days, but it was not shot or attempted
to be hauled on the Sunday.
The first seine we came to was Captain McDonald's. They asked
him if he was going to take his seine up. He said, " If we are forced
to take it up we will;" and we told him if he didn't take it up we
would take it up for him.
The next we came to was a man belonging to Fortune Bay, called
John Hickey, an Englishman, and we told him to take up the seine,
and he said he would take it up, and he did. The next we came to
Peter McCauley, and we told him the same as the others, and he
refused to take it up. Then we went on to Captain Jacobs, and when
we got to him he was in his skiff, a little off the shore. He had just
hauled herring and shot them into Farrel's seine, who was working
for him. They remonstrated about breaking the law and fishing on
Sunday. There was an altercation between us. He said he would
defend his seine if they touched it in a threatening way. I don't
know what he said. There was a great crowd, and he was in an
awful rage, and I heard that he drew a revolver, but I didn't see it.
He then took his seine on board. Then all the seines were taken up
but Farrel's and McCauley's. Farrel's seine was not touched because
it was not laid on that day, and they therefore let it alone, although
Jacobs's fish were in it; but McCauley's seine was taken up and
destroyed, and that is all I know.
Q. Did the American captain remain in the harbour after? — A.
Yes; I think about a fortnight, but perhaps more. They continued
to fish and haul herring on week-days but not on Sunday again.
PERIOD FROM 1871 TO 1905. 699
Q. Were they ever molested or interfered with in any way subse-
quently or not? — A. Not to my knowledge; they remained there as
long as they chose, and there was never any more dispute. I don't
know that it-is illegal to haul seines that time of the year. I have
heard of the law, but I have never seen it carried out ; it had nothing
to do with this dispute. The only cause of it was on account of its
being Sabbath. I never saw herrings hauled on a Sunday before,
either by American or Englishman.
The Americans, by haulmg herring that day when the Englishmen
could not, were robbing them of their lawful and just chance of
securing their share in them, and, further, had they secured all they
had barred they could have, I believe, filled every vessel of theirs in
the bay. They would have probably frightened the rest away, and
it would have been useless for the English to stay, for the little left
for them to take they could not have sold.
The Americans would have a better chance than the English any
day on account of the size of their nets, but the English would have
had their fair chance the next day, and they thought they were justi-
fied, in the absence of any proper authority or power to enforce the
law, to defend their rights themselves. There is no power or author-
ity to enforce the law on all parts of the coast, and none nearer to
Long Harbour than about 30 or 40 miles.
If there was not a good feeling and mutual understanding between
all fishermen, whether foreigners or Englishmen, there would be no
law carried out or upheld at all, but there was always prior to this a
very good feeling and a mutual understanding between the Ameri-
cans and ourselves, and I don't know anything to prevent the same in
future. After the destruction of McCauley's seine some of the Amer-
ican schooners, one of which was Peter Smith's, drifted about the
harbor among the fishermen's nets when blowing hard, with their
anchors hanging to their bows, and destroyed several nets. I don't
know if this was done out of revenge or not. I don't think it was
done purposely.
(Signed) JOHN CLUETT.
Sworn before me at St. Jacques, Fortune Bay, this 17th day of
June, A. D. 1878.
(Signed) GEO. L. SULIVAN,
Captain and Senior Officer on the Coast of Newfoundland.
(11.)
Deposition of Charles Dagle.
GLOUCESTER, February 19, 1878.
I, Charles Dagle, master of the American schooner Lizzie and
Namari, of Rockport, do on oath depose and say :
That I sailed from Gloucester on the 6th December, 1877. for
Fortune Bay, Newfoundland, for a load of herring. The last year
(1877) I had sold a seine and boat to parties in Newfoundland/and
they were to supply me with herring in payment for the seine and
boat. I arrived at Fortune Bay about the 19th December. I was
at Long Harbour, Newfoundhmd, with my vessel on the 6th Jan-
700 CORRESPONDENCE, ETC.
uary. Saw the seines of the American schooners New Er>r/l<i-n<l and
Ontario destroyed by the fishermen of Newfoundland. There is a
decided objection to using netted or gill-net herring for freezing
purposes, as these herring die in a short time after being taken in
gill-nets. When they are seined they can be kept alive on the radius
of the seine and taken out alive when the weather is suitable for
freezing, while the netted herring, being dead, must be salted or
spoil; consequently the seined herring are the best for our purposes,
and are what the American vessels want for our market. Knowing
this fact, the Newfoundland fishermen had endeavored to obstruct in
every way the taking of herring with seines, as they use principally
gill-nets; they placed their nets, which are set permanently, so as to
hinder the using of seines. On the 6th January, 1878, the herring
had come inshore, so that they were inside the gill-nets, thus giving
our people an opportunity to seine them without interfering with
the gill-nets. On the Americans attempting to put their seines in the
water the Newfoundland fishermen threatened to destroy them, and
when our fishermen had taken their seines full of herring, the New-
foundlanders came down to the number of 200, seized and destroyed
the seines, letting out the fish, and afterwards stole and carried off
the remnants of the seines. On account of this violence and the
obstructions placed in the way of my men operating the seine, I was
unable to procure a cargo, and have returned without a herring. If
I had been allowed the privilege guaranteed by the Washington
Treaty, I could have loaded my vessel and all the American vessels
could have loaded. The Newfoundland people are determined that
the American fishermen shall not take herring on their shores. The
American seines being very large and superior in every respect to
the nets of the Newfoundlanders, they cannot compete with them.
These seines are the mackerel seines which are used in summer for
mackerel and are setting for herring. When they are plentiful we
can take from 2,000 to 5,000 barrels. The seines and boats we use
cost 1,200 dollars when new, and are too expensive for the generality
of Newfoundland fishermen, and they would have no use for seines
only during the herring season, while we can use them both summer
and winter, and thus make them pay for their great cost.
My loss by these acts of violence, and being deprived of my rights
under the Washington Treaty, is fully 5,000 dollars, which I claim
as indemnity. The netted herring are strangled while caught by the
head in the net, and the eyes turn red from suffocation. They will
not keep so long as seined herring, which are free to swim inside the
seine, and are dipped out alive. The netted herring will not sell in
the New York market, while the seined herring preserve their bright
appearance and sell rapidly.
(Signed) CHARLES DAGLE,
Master of Schooner Lizzie and Namari.
ESSEX, 55. •
GLOUCESTER, February 19, 1878.
Personally appeared Charles Dagle, master of schooner Lizzie and
Namari, who subscribed and made oath to the foregoing statement.
Before me.
(Signed) . ADDISON CENTER,
Justice of the Peace.
PEK1OD FitOM 1871 TO 1905. 701
(12.)
Deposition of William H. McDonald.
GLOUCESTER, February 19, 1878.
I, William H. McDonald, master of the American schooner William
E. McDonald, of Gloucester, do on oath depose and say :
That I have just returned from NeAvfoundland, where I have been
for a load of herring. I was at Long Harbour, Newfoundland, when
the seines of the schooners New England and Ontario were destroyed.
I had gone on shore and was on the beach at the time. The New-
foundlanders were much excited because of our use of the • large
seines, which for the first time were, used last winter there. The
Newfoundland fishermen had sunk large rocks off the beach in order
to catch the seines and tear them, and had put their gill-nets where
they would obstruct the use of the seines. These means failing, as
the herring were close inshore, they took to personal violence, and
destroyed one seine completely, and made the others take them up
and release the fish. I had a seine, but was not allowed to use it.
The nets they placed in the way and kept there only for the purpose
of obstructing our operations with seines, as they took no herring
there, but let the nets remain till they rotted. I can fully endorse
the statement of Captain Dagle in all particulars. My vessel is a
first-class vessel, and with the time and expense, and with the loss of
herring. I have sustained a loss of fully 5,000 dollars to myself and
owners, and I claim that, under the Treaty of Washington, I have a
right to the herring fisheries and claim indemnity for this severe loss.
(Signed) WILLIAM H. MCDONALD.
ESSEX, ss:
Personally appeared William H. McDonald and subscribed and
made oath to the above statement.
Before me.
(Signed) AAEON PARSONS,
Justice of the Peace.
(13.)
Deposition of James McDonald.
GLOUCESTER, February 19, 1878.
I, James McDonald, master of the American schooner F. A .Smith,
of Gloucester, do on oath depose and say :
That the said schooner was chartered by George W. Plumer and
others, of Gloucester, for a voyage to Newfoundland for herring. I
sailed from Gloucester on the 29th November, 1877, and arrived at
Long Harbour, Newfoundland, on or about the 15th December, 1877.
I carried a large purse seine, such as is used to take mackerel. The
seine will take 4.000 barrels of fish. I employed Newfoundland fisher-
men to operate the seine. I set my seine twice, but without catching
anj'thing, as my seine was torn by rocks that had been left off the
beach. On the 6th January the herring made their appearance in
great numbers, and the opportunity to take a large haul was unproved
702 CORRESPONDENCE, ETC.
by my men, and we took at least 1,000 barrels, enough to load my
vessel and one other. The Newfoundland fishermen came off in their
boats and told me to take my seine up, or they would take it up for
me, and that they would cut it up. There were about 200 men en-
gaged in this violence, and my own crew consisting of six men I
could not resist, but was obliged to take up my seine. I saw the seines
of the schooners New England and Ontario destroyed, and knew that
mine also would be destroyed if I did not take it up. My seine was
not attached to the shore when they came off, and the attack on me
was made in boats. After destroying the other seines they all made
for me, and my only safety was to gather up my seines. I lost all
my fish, and the Newfoundland fishermen put all the obstructions
they could in the way to prevent the use of our seines after that.
From my knowledge of the facts I do say that the NeAvfoundland
fishermen are determined to prevent American fishermen from using
the shore fisheries. I consider that the loss to the vessel and the
charter party at not less than 5,000 dollars, and under the Treaty
of Washington I have been deprived of my rights as an American
citizen, and full indemnity should be allowed for the outrage. I
have read the statement of Captain Dagle, and know it to be true
in all its particulars. The effect of this treatment will be to destroy
the American fishing for herring at Newfoundland. There are
annually about 100 voyages by American vessels made for herring
to Newfoundland. The Newfoundland fishermen were taking her-
ring on the same day the outrages before stated occurred.
(Signed) JAMES MCDONALD.
ESSEX, ss:
GLOUCESTER, February W, 1878.
Personally appeared the above-named James McDonald, master of
the schooner F. A. Smith, who subscribed and made oath that the
foregoing statement is true.
Before me.
(Signed) ADDISON CENTER,
Justice of the Peace.
(14.)
Deposition of Charles H. Nute.
GLOUCESTER, February 19, 1878.
I, Charles H. Nute, master of the American schooner Edward E.
Webster, of Gloucester, do on oath depose and say :
That I have just returned from Newfoundland, where I have been
for a load of herring. I went for the purpose of co-operating with
other American vessels in the use of their seines in taking herring.
1 was at Long Harbour, and saw the destruction of the seines of the
American schooners New England and Ontario. I have seen the
statement of Captain Dagle, of the American schooner Lizzie and
Namari, and substantiate all he has stated. I have returned without
a herring for the same reasons. My actual loss in time of vessel and
crew, with herring I should have bought had I not been prevented
by the inhabitants of Newfoundland, is fully 5,000 dollars; and,
owing to being deprived of my rights under the Washington treaty,
PERIOD FllOM 1871 TO 1905. 703
I hereby claim that amount as indemnity for the wrong done me and
the owners of the vessel.
(Signed) CHARLES H. NUTE,
Master Schooner Edward E. Webster.
ESSEX, ss:
GLOUCESTER, February 20, 1878.
Personally appeared Charles H. Nute, master of schooner Edward
E. Webster, who subscribed and made oath that the foregoing state-
ment is true.
Before me.
(Signed) ADDISON CENTER,
Justice of the Peace.
(15.)
Deposition of David Malanson.
GLOUCESTER, February 20, 1878.
I, David Malanson, master of the American schooner Crest of the
Wave, of Gloucester, Massachusetts, do on oath depose and say :
That I sailed from Gloucester on the 8th December, 1877, on a
voyage to Newfoundland for herring. I arrived at Long Harbour,
Newfoundland, on the 23d December, 1877. I was interested in a
seine carried by the schooners New England and Ontario. I was at
Long Harbour on the Gth January, 1878, and was on the beach
when the Newfoundland fishermen destroyed the seine belonging*to
these vessels. The herring did not strike inshore until that day, and
as it is very uncertain how long they will remain, it is imperative, for
successful prosecution of the business, to take them when they are
inshore. By means of our large purse seines we can inclose the
herring and keep them alive a month, if necessary, as we need to
have freezing weather when we take them out to freeze them, to
keep them fresh until we get them to market. On this occasion
the herring were entirely inshore of the Newfoundland gill-nets,
and as the sequel proved, if we did not take them then and there
we should lose the season catch. The seines were set in no way
interfering or injuring the gill-net fishing, and inclosed and held cer-
tainly 2,000 barrels of herring, enough to load four vessels. Over 200
men came down to the beach, seized the seine, let out the fish, pulled
the seine on shore, tearing and cutting it to pieces with knives. The
crews operating the seines were powerless against so many ; and after
they had destroyed this seine they went for the other American seines,
shouting and gesticulating, saying : " Tear up the damned American
seines." All of the vessels would have been loaded with herring if
the Americans could have used their seines.
My loss by this outrage is not less than 5.000 dollars, which has
been taken from me despite the provisions of the Washington treaty,
and which I claim as indemnity.
The Newfoundland fishermen have for years been in the habit of
selling all the herring to American vessels. I have been there eight
years, and I have always bought my herring, or engaged the New-
foundlanders to take them for me. paying them in cash. This has
been the universal practice of American vessels. This year we car-
704 CORRESPONDENCE, ETC.
ried the large mackerel seines, which we use in summer for taking
mackerel. These seines will take from 2,000 to 5,000 barrels at a haul,
and the herring are better taken in this way. As most of the New-
foundlanders fish with gill-nets, our manner of seining would take
away from them the monopoly of the herring trade, and hence the
feeling which produced the outrage on our vessels. It is apparent
that they will obstruct any American fishery on their shores, and are
not men who would know much about rights or privileges under a
treaty. I should say that there are at least 100 cargoes of herring
taken from Newfoundland yearly by American vessels, and as things
are now it would be useless for American vessels to go there for her-
ring unless they bought the herring from the inhabitants at whatever
price they may see fit to ask. This American trade has been a great
benefit to Newfoundland, and the change in the manner of taking
herring will greatly reduce the amount of money paid them for her-
ring. Only three vessels of eighteen that were there got any herring
whatever. Captain Jacobs, of the Moses Adams, held his seine with
revolvers, and, being a native of Newfoundland, was allowed to take
in the herring he had taken. The feeling was very intense and bitter
against the Americans. The Newfoundland fishermen were catching
jiiid taking herring with their nets and boats on the same day.
(Signed) DAVID MALANSON,
Master Schooner Crest of the Wave.
ESSEX, ss :
Personally appeared before me David Malanson, and subscribed
aifd made oath to the above statement.
(Signed) AARON PARSONS,
Justice of the Peace.
(16)
Deposition of Edward Stapleton.
GLOUCESTER, February 21, 1878.
I, Edward Stapleton, master of the American schooner Hereward,
of Gloucester, dp, on oath, depose and say :
That I have just arrived from Newfoundland, where I have been
for a load of herring. I was at Long Harbour, Newfoundland, when
the Newfoundland fishermen destroyed the seines of the American
schooners New England and Ontario, and saw the whole transaction.
I carried a seine with me, and employed Newfoundland fishermen
to operate it for me. The first time they set it for me they put it out
in a strong tideway, and utterly destroyed it, and after that I had
to depend on the other American seines. This was the understand-
ing among the American captains, that we were to work together
and load all our vessels. The setting of the seines on the 6th January
did not interfere in any way with their nets or fishing. I think there
is a local regulation that does not allow the Newfoundland fishermen
to fish on Sundays; but the first seine (a small -one) set on that clay
was one owned and operated by the natives, and they were picking
their nets and boating their herring ashore all day. On the arrival
of the American fleet the Newfoundlanders put their nets where they
would obstruct our sailing, but on this day the herring were away
PE1UOD FROM 1871 TO 11)05. 705
inside of their nets, giving us the first chance and only opportunity
we had to seine or get herring. Enough were taken, and could have
been taken, that day to have loaded the fleet. After that day there
was no opportunity to take any. Newfoundland nets were placed
where they never took a fish, and placed only for the purpose of pre-
venting our seining. My loss to vessel and owrners is not less than
5,000 dollars, and I claim indemnity to that amount. This loss is
owing entirely to the hostile acts of the Newfoundland fishermen.
E. STAPLETON.
(17.)
Deposition of Charles Dagle.
GLOUCESTER, December 10, 1878.
I, Charles Dagle, master of the American schooner Lizzie and
Namari, of .Eockport, district of Gloucester, do, on oath, depose and
say, that I know Mr. Bolt, who resided in a hut or shanty near Tickle
Beach, Newfoundland; that I was there on the 6th January, 1878,
and saw the hostile acts of the British fishermen. Mr. Bolt's hut is
about 150 yards back from the beach. I have been to Newfoundland
fourteen successive years, and never heard of any persons claiming
any rights on the beach, everybody using it in common. The three
huts there are in the nature of squatter property, used only in the
winter. Mr. Bolt never made any claim that I knew of; and the
American seines were not used within 300 yards of Bolt's place,
except where the seines were hauled on the beach by British fisher-
men and destroyed. The seines that were obliged to be taken up
were 500 yards or more from Bolt's place. The seine of the F. A.
Smith, Captain McDonald, was one-fourth of a mile away. Mr.
Hickey, a resident of Fortune Bay, had his seine nearest to Bolt's
house. Mr. Hickey's seine was the first seine set on the 6th January,
1878, and the British fishermen attacked him as well as the Americans,
(Signed) CHARLES DAGLE.
MASSACHUSETTS, Essex, ss:
GLOUCESTER, December 12, 1878.
Personally appeared Charles Dagle and made oath to the truth
of the above statement.
Before me.
[SEAL.] AARON PARSONS, Notary Public.
(18.)
DepoKiiion of Willard G. Poole.
GLOUCESTER, December W, 1878.
I, Willard G. Poole, master of the American schooner Maud and
Effie, of Gloucester, do on oath depose and say that I know Mr. Bolt,
and also the location of his hut at Tickle Beach, Newfoundland ;
that I was there on the 6th January, 1878, and saw and know of the
operations of the American seines; that the hut of Mr. Bolt is fully
150 yards back from high-water mark from the beach; that I never
heard or knew of any individual or body of men claiming any pecul-
92909°— S. Doc. 870, 61-3, vol :> b
706 CORRESPONDENCE, ETC.
iar or particular rights on this beach, nor was any one ever hindered
from fishing, except on the occasion of the 6th January, 1878, to my
knowledge. There was no seine used by the Americans at any time
on the beach or within 400 yards of Mr. Bolt's hut, except the seines
captured by the British fishermen, which were hauled on to the beach
by them (the British fishermen), and cut to pieces and destroyed.
(Signed) WILLARD G. POOLE.
ESSEX, ss:
GLOUCESTER, December 11, 1878.
Personally appeared before me the within-named Willard G. Poole,
who subscribed and made oath that the within statement is true.
(Signed) ADDISON CENTER.
Justice of the Peace.
(19.)
Deposition of Michael B. Murray.
I, Michael B. Murray, master of the American schooner Mary M.,
of Gloucester, do on oath depose and say that I know Matthew Bolt,
at Tickle Beach, Newfoundland ; have known him to have a shanty
there, and lives there winters, for the past four years. I never heard
or knew of Mr. Bolt, or any other person, claiming any peculiar or
particular rights on this beach, nor exercising any authority there,
except the action of the mob on the 6th January, 1878. Mr. Bolt's
shanty is about 150 yards from high-water mark. The American
seines were operated more than 400 feet and due south along the
beach from Bolt's hut.
(Signed) MICHAEL B. MURRAY.
MASSACHUSETTS, Essex, ss:
GLOUCESTER, December 23, 1878.
Sworn to this 23d day of December, A. D. 1878.
Before me.
[L, s.J AARON PARSONS, Notary Pvl>1ic.
(20.)
Deposition of Michael B. Murray.
I, Michael B. Murray, of Gloucester, master of the American
schooner Mary M., do hereby on oath depose and say that I have
invariably made good voyages to Newfoundland, and, with the excep-
tion of 1876, have made a clear profit, over and above all expenses, of
at least 3,500 dollars for each voyage.
In the year 1875 I made 5.300 dollars, clear of all expense, on my
voyage to Newfoundland for herring. In 1874 I made 5,500 dollars,
clear of all expense.
In the year 1876 I had a cargo of 1,445 barrels of salted herring,
was very late in the season, and cleared only 2.000 dollars.
(Signed) MICHAEL B. MURRAY.
PERIOD FROM 1871 TO 1905. 707
MASSACHUSETTS, Essex, ss:
GLOUCESTER, December 23* 1878.
Personally appeared M. B. Murray, and made oath to the truth of
the above statement.
Before me.
[SEAL.] AARON PARSONS, Notary Public.
(21.)
Deposition of Peter Smith.
GLOUCESTER, February 5, 1878.
I, Peter Smith, of Gloucester, master of the American schooner
Charles C '. Warren, of Gloucester, do on oath depose and say that I
was at Tickle Beach, Fortune Bay, Newfoundland, on the 6th Janu-
ary, 1878; that I had been to Labrador, from thence to Bay of
Islands, and thence to Fortune Bay for a load of herring. On the
morning of the 6th January, 1878, herring made their appearance in
close proximity to the shore in great abundance. I was provided with
two seines with which to take herring, and should have loaded my
vessel and others on that day. I had my seine in the boat, and was
preparing to use it when the attack was made on the other American
seines, and I saw them destroyed, and I found that the mob of 200 or
300 of the British fishermen were determined to destroy every seine,
and I did not dare put my seine in the water. After this time I
bought of the British fishermen about 400 barrels of herring, paying
1 dol. 40 c. per barrel. My vessel would carry 1,300 barrels, all of
which I could have taken on the 6th January at little or no cost to
myself. I was about a fortnight buying 400 barrels of herring. I
consider that my loss was at least 3.000 dollars, in addition to the
expense of the voyage, by the hostile acts of the British fishermen.
(Signed) PETER SMITH.
STATE OF MASSACHUSETTS, Essex, ss:
GLOUCESTER, December 14, 1878.
Personally appeared Peter Smith, and made oath to the truth of
the above statement signed by him.
Before me.
[L. s.] AARON PARSONS, Notary Public.
(22.)
Official statement of Newfoundland herring fishery.
T, Fitz J. Babson, collector of customs for the district of Gloucester,
do certify that the following-named schooners were employed in the
Newfoundland herring fishery during season of 1877 and 1878 :
Schooners. Tons.
Herbert M. Rogers 78
Moses Adams 100
John W. Bray 83
Wildfire 109
Edward E. Webster 99
Hereward 00
708 CORRESPONDENCE, ETC.
Schooners. Tons.
Bunker Hill 101
Landseer !)!)
Isaac Rich 92
Ontario 91
New England 86
Frank A. Smith 77
Wm. E. MacDonald 98
Moro Castle 89
Bonanza 137
Jennie A. Stubbs 198
Lizzie and Nnmari 94
Crest of the Wave 71
Moses Knowlton 111
Maud and Effle 85
Fred. P. Fye 85
Mary M 102
Maud B. Wetherell 108
Cunard 75
Charles C. Warren 109
Bellerophon 86
Total 26 vessels.
Vessels employed during season of 1878 and 1879 in Newfoundland fisheries.
Schooners. Tons.
John S. McQuinn 82
Falcon 72
New England — 86
Rattler 83
Wildfire 109
Bunker Hill 101
Isaac Rich 92
Centennial 116
Total 8 vessels.
Witness my hand and seal this 10th day of January, A. D. 1879.
[SEAL.] F. J. BABSON, Collector.
Sir E. Thornton to Earl Granville.
[Extract.]
WASHINGTON, May % 1880.
(Eeceived June 5.)
During a conversation which I had with Mr. Evarts at the State
Department on the 20th instant I spoke to him about the Fortune
Bay affair, and expressed some surprise at the step which the Presi-
dent and he had recommended to Congress, to the effect that the
import duties upon fish and fish-oil, the produce of the British prov-
inces, should be re-imposed as they existed before the Treaty of
Washington. I stated that it appeared to me that this was an un-
friendly step, and, if carried out by Congress, would render an agree-
ment upon the question at issue much more difficult than it would
otherwise have been. Previously to the transmission of the Presi-
dent's message, I should have had great hopes that an arrangement
might have been arrived at ; but, when it was attempted to put upon
Her Majesty's Government a pressure to which, under similar cir-
cumstances, the United States' Government would have certainly
objected, it did not seem as if the latter was desirous of finding a
solution of the question.
PERIOD FEOM 1871 TO 1005. 709
T also pointed out to him that the Colonies of Newfoundland and
Prince Edward Island had allowed American fishermen the privilege
of fishing in their waters very shortly after the conclusion of the
Treaty of Washington, although the Act of Congress relieving fish
and fish-oil, the produce of Prince Edward Island, from import
duties in the United States, was not passed till the 1st March, 1873,
and Newfoundland was not admitted to the same immunity till May,
1874, and although United States' citizens had enjoyed the right of
fishing in the waters of Prince Edward Island and Newfoundland,
their Government had never consented to reimburse the duties which
had been paid on the fish and fish-oil imported from those Colonies
into the United States during that time.
Mr. Evarts denied emphatically that he had wished to recommend
a measure which could be thought to be unfriendly towards her
Majesty's Government; nor did he consider that it was so, or that it
could be viewed in that light. He said that he had in September
1878 pointed out to Her Majesty's Government that the question
was a serious one, and that it was the opinion of the United States'
Government that a false construction had been given to the Treaty,
to the prejudice of the United States' fishermen. He had maintained
from the beginning of the discussion that the right of fishing given
by the Treaty was free from all restrictions which might have been
imposed upon native fishermen by local laws either anterior or subse-
quent to the date of the Treaty. He thought that Her Majesty's
Government had not sufficiently considered the gravity of the case,
had paid but little attention to it, and had unnecessarily delayed re-
plying to the representations of the United States' Government. He
asserted that until the season of 1878 no American fishermen had
visited the coasts of Newfoundland for the purpose of fishing, and
that when they did so, they had met with such a reception that until
an answer should be received from Her Majesty's Government they
had not ventured to repeat the visit. This answer had now arrived,
just as the fishermen were preparing their equipments for this sea-
son, and were anxious to know whether they would be allowed to fish
on the coasts of Newfoundland. But Lorcl Salisbury in his note of
the 3rd ultimo had maintained that in the affair at Fortune Bay the
Americans had violated both the local laws and the provisions of the
Treaty, and that the native fishermen were therefore justified in
attacking them, and preventing them from pursuing their ordinary
mode of fishing. It was therefore impossible that, as the natives were
thus encouraged to resist the rights of the Americans, the latter could
again expose themselves to such losses as they had suffered in Fortune
Bay.
It would have been very different, Mr. Evarts argued, if the au-
thorities had taken the matter in hand, and if the question had been
settled by a Court of Justice, but that it could not be that American
fishermen should be exposed to the violence of a mob, and he expressed
his surprise that Her Majesty's Government should have justified the
means which were used for preventing Americans from enjoying their
rights under the Treaty.
Under these circumstances, as it appeared that Her Majesty's Gov-
ernment had finally determined to interpret the Treaty in a manner
entirely at variance with the expressed opinion of the United States'
Government, and to justify the Newfoundland fishermen in taking
710 CORRESPONDENCE, ETC.
the law into their own hands and forcibly preventing American fish-
ermen from exercising the rights to which their own Government
considered them entitled, Mr. Evarts declared that there was no
ground for the charge which I had made, that he was now the first
to recommend to Congress a violation of the Treaty. On the con-
trary, he maintained that it was we who had allowed and sustained
an infraction of the Treaty by the Newfoundland fishermen, looking
at the interpretation given to it by the United States. There was
then nothing left but one of two things : either to protect the Ameri-
can fishermen by the presence of men-of-war, which might have led
to a conflict, or to re-impose the duty on fish, the taking off of which
had been part of the price paid by the United States for the free
enjoyment of the right of fishing.
I asked Mr. Evarts whether he could conscientiously assert that, if
British subjects had availed themselves of the privilege of fishing on
the United States' coasts, they would have been allowed advantages,
either as to the mode or time of fishing, over the native fishermen?
He replied that if the former had attempted to take any such advan-
tages, the United States' Government would immediately have rec-
ommended that the same rights should be allowed to the natives,
" But," I said, " such a step would have led to the entire destruction
of the fisheries." This idea Mr. Evarts ridiculed; indeed, it seems
to be the firm conviction of those in this country who have most stud-
ied the matter, that no amount of catching will lead to any perceptible
diminution in the quantity of fish ; but that there are other causes, not
yet well understood, arising from local circumstances, storms, &c.,
which occasionally drive the fish away from the points which they
have been in the habit of visiting.
Mr. Evarts thinks that there has been unnecessary delay in replying
to his representations, and that sufficient attention has not been paid
to his arguments; and that Lord Salisbury's note of the 3rd ultimo
seemed to imply that the Newfoundland fishermen were justified in
their attack upon the Americans, and would be encouraged to a repe-
tition of similar conduct on future occasions.
There is also a strong desire on the part of the United States' Gov-
ernment, in view of the approaching end of the term for which fish-
ing rights were granted by the Treaty, that it should not be supposed
that the value which has been assigned to the fisheries by the Treaty
and the Halifax Award is one wrhich can ever be admitted or acknowl-
edged by the United States as a precedent for any future arrange-
ment.
I had the honour to transmit copies of the President's Message to
Congress, accompanied by Mr. Evarts' Report upon the subject in
my despatch of the 18th instant. The papers which were transmitted
with Mr. Evarts' Report have not yet been printed.
I also inclose copies of a bill which was submitted to the House of
Representatives on the 18th instant by Mr. Loring, a member from
Massachusetts, which proposes that Collectors of Customs should be
instructed to collect on fish and fish-oil the duties imposed before the
Act of the 1st March, 1873 ; and that from the duties so collected the
sum of 125,000 dollars should be set apart for the compensation of
the United States' fishermen " who were driven from Fortune Bay on
the 6th January, 1878." The Bill was referred to the Committee on
PERIOD FROM 1871 TO 1905. 711
Foreign Affairs, by which I understand that it has m.l yet been taken
into consideration.
Earl Granville to Sir E. Thornton.
FOREIGN OFFICE, June 9, 1880.
SIR: I had to-day an interview with the United States' Minister
at this Court respecting the Fortune Bay affair.
Mr. Lowell stated that there was a much stronger and deeper feel-
ing on the other side of the Atlantic upon this question than was
appreciated here. There was, he said, a feeling that a wrong had
been done which ought to be redressed.
We agreed that this was a reason why both Governments should
try to settle the question.
I observed that the present Government had not their reputation
to make as to a wish to act in a conciliatory manner towards the
United States, but that we could make no concession which could not
be made with perfect justification.
I then asked Mr. Lowell whether he had any suggestions to make.
He replied, " none ; " that his instructions were to conform his lan-
guage to that of Mr. Evarts' note. I inquired whether it would not
be possible to separate the two questions of the interpretation of the
Treaty and of the attack upon the American fishermen. He replied
that he feared it might be too late to do this, but that, at my request,
he would be prepared to ask the question.
Mr. Lowell added, not officially, but only as his personal opinion,
that there would be no precipitate action on the part of the United
States. The President, he said, had power to act, but the moment for
doing so was at his own discretion.
We finally agreed to renew our conversation upon this subject at
an early date.
I am, &c. (Signed) GRANVILLE.
Mr. Lowell to Earl Granville.
UNITED STATES' LEGATION,
London, June 12, 1880.
(Received June 12.)
MY LORD: Referring to my conversation with your Lordship on
the 9th instant, I have the honour to acquaint you that I took pleas-
ure in communicating by cable the next day to my Government the
friendly sentiments of your Lordship in respect to the differences
between the two countries on the Fishery question.
I have this morning received a telegram from Mr. Evarts, by which
he desires me to communicate his great gratification at the expres-
sion by your Lordship of the friendly disposition of the British
Cabinet, a disposition which, he states, he should have been ready to
assume from the public character of its members. He adds that" the
President will be quite ready to entertain any considerations which
may be presented to the Secretary of State to relieve the question of
712 CORRESPONDENCE, ETC.
the fisheries from its present difficulties, and that the Bill now pend-
ing before Congress extends to the President adequate discretionary
power to meet an accord between the two Governments respecting
the fishery rights of the United States under the Treaty, should such
an accord be established during the recess of Congress.
I have, &c.
(Signed) J. R. LOWELL.
Earl Granville to Mr. Lowell.
FOREIGN OFFICE, October 27. 1880.
SIR : Her Majesty's Government have carefully considered the cor-
respondence which has taken place between their predecessors and
the Government of the United States respecting the disturbance
which occurred at Fortune Bay, on the 6th of January, 1878, and
they have approached this subject with the most earnest desire to
arrive at an amicable solution of the differences which have unfor-
tunately arisen between the two governments on the construction of
the provisions of the treaties which regulate the rights of the United
States fishermen on the coast of Newfoundland.
In the first place, I desire that there should be no possibility of mis-
conception as to the views entertained by Her Majesty's Government
respecting the conduct of the Newfoundland fishermen in violently
interfering with the United States fishermen, and destroying or dam-
aging some of their nets. Her Majesty's Government have no hesi-
tation in admitting that this proceeding was quite indefensible, and is
much to be regretted. No sense of injury to their rights, however
well founded, could, under the circumstances, justify the British
fishermen in taking the law into their own hands and committing
acts of violence, but I will revert by and by to this feature in the
case, and will now proceed to the important question raised in this
controversy, whether, under the treaty of Washington, the United
States fishermen are bound to observe the fishery regulations of New-
foundland in common with British subjects.
"Without entering into any lengthy discussion on this point, I feel
bound to state that in the opinion of Her Majesty's Government the
clause in the treaty of Washington which provides that the citizens
of the United States shall be entitled, " in common with British sub-
jects," to fish in Newfoundland waters within the limits of British
sovereignty, means that the American and British fishermen shall
fish in these waters upon terms of equality, and not that there shall
be an exemption of American fishermen from any reasonable regula-
tions to which British fishermen are subject.
Her Majesty's Government entirely concur in Mr. Marcy's circular
of the 28th of March, 1856. The principle therein laid down ap-
pears to them perfectly sound, and as applicable to the fishery pro-
visions of the treaty of Washington as those of the treaty which
Mr. Marcy had in view. They cannot, therefore, admit the accuracy
of the opinion expressed in Mr. Evarts's letter to Mr. Welsh, of the
28th of September, 1878, " that the fishery rights of the United States
conceded by the treaty of Washington are to be exercised wholly
PERIOD FROM 1871 TO 1905. 713
free from the restraints and regulations of the statutes of Newfound-
land," if by that opinion anything inconsistent with Mr. Marcy's
principle is" really intended. Her Majesty's Government, however,
fully admit that if any such local statutes could be shown to be in-
consistent with the express stipulations, or even with the spirit of
the treaty, they would not be within the category of those reasonable
regulations by which American (in common with British) fishermen
ought to be bound, and they observe, on the other hand, with much
satisfaction, that Mr. Evarts, at the close of his letter to Mr. Welsh,
of the 1st of -August, 1879, after expressing regret at " the conflict of
interests which the exercise of the treaty privileges enjoyed by the
United States appears to have developed," expressed himself as
follows :
" There is no intention on the part of this [the United States]
government that these privileges should be abused, and no desire that
their full and free enjoyment should harm the colonial fishermen.
" While the differing interests and methods of the shore fishery and
the vessel fishery make it impossible that the regulation of the one
should be entirely given to the other, yet if the mutual obligations of
the treaty of 1871 are to be maintained, the United States Govern-
ment would gladly co-operate with the Government of Her Britannic
Majesty in any effort to make those regulations a matter of reciprocal
convenience and right, a means of preserving the fisheries at their
highest point of production, and of conciliating a community of in-
terest by a just proportion of advantages and profits."
Her Majesty's Government do not interpret these expressions in
any sense derogatory to the sovereign authority of Great Britain in
the territorial waters of Newfoundland, by which only regulations
having the force of law within those waters can be made. So regard-
ing the proposal, they are pleased not only to recognize in it an indi-
cation that the desire of Her Majesty's Government to arrive at a
friendly and speedy settlement of this question is fully reciprocated
by the Government of the United States, but also to discern in it the
basis of a practical settlement of the difficulty, and I have the honor
to request that you will inform Mr. Evarts that Her Majesty's Gov-
ernment, with a view to avoiding further discussion and future mis-
understandings, are quite willing to confer with the Government of
the United States respecting the establishment of regulations under
which the subjects of both parties to the treaty of Washington shall
have the full and equal enjoyment of any fishery which, under that
treaty, is to be used in common. The duty of enacting and enforcing
such regulations, when agreed upon, would of course rest with the
power having the sovereignty of the shore and waters in each case.
As regards the claim of the United States fishermen to compensa-
tion for the injuries and losses which they are alleged to have sus-
tained in consequence of the violent obstruction which they encoun-
tered from British fishermen at Fortune Bay on the occasion referred
to, I have to state that Her Majesty's Government are quite willing
that they should be indemnified for any injuries and losses which,
upon a joint inquiry, may be found to have been sustained by them,
and in respect of which they are reasonably entitled to compensation;
but on this point I have to observe that a claim is put forward by
them for the loss of fish which had been caught, or which, but for
the interference of the British fishermen, might have been caught by
714 CORRESPONDENCE, ETC.
means of strand fishing, a mode of fishing to which, under the treaty
of Washington, they were not entitled to resort.
The prosecution by them of the strand fishery being clearly in ex-
cess of their treaty privilege, Her Majesty's Government" cannot
doubt that, on further consideration, the United States Government
will not be disposed to support a claim in respect of the loss of the
fish which they had caught or might have caught by that process.
I have, &c.,
GRANVILLE.
Mr. Evarts to Mr. Lowell.
No. 109.] DEPARTMENT or STATE,
Washington, February 4, 1881.
SIR: Inclosed herein you will receive the affidavits of the masters
of two United States fishing vessels, detailing the acts of violence by
which they have been prevented from exercising their rights of fish-
ing in certain Newfoundland waters.
You will observe that in these occurrences no questions arise as to
the character or force of local legislation. They exhibit simply and
distinctly the determination of the inhabitants of Newfoundland that
the fishermen of the United States shall not be permitted to exercise
the right of fishing guaranteed them by the treaty of Washington,
but shall be compelled to purchase from provincial fishermen the bait
which they are clearly entitled to catch.
There is no question here of the size of the meshes of the seines, of
the right of fishing at limited periods, of the use of the strand as aux-
iliary to legitimate fishing. It is simply the denial by force of the
exercise of a right which is not disputed, but which is denied because
it interferes with the profits of provincial fishermen. There is no pre-
tense of the interference of lawful authority, general or local, but the
undisguised use of mob violence to prevent the exercise of an un-
doubted right secured by treaty to our fishermen.
You will bring these complaints immediately to the attention of
Her Britannic Majesty's Government, and in doing so you will say
that the Government of the United States sees with a dissatisfaction
to which it is unwilling to give full expression this repeated and
continuous invasion of the rights of its citizens; that this rude and
persistent opposition to* the exercise of rights guaranteed by treaty,
and liberally paid for, is practically an abrogation of the very pro-
visions which the treaty was intended to secure, and that the Govern-
ment of the United States cannot permit the rights and interests of
its citizens to be thus subjected to the ill-temper and unlawful violence
of an excited mob.
It can make no difference that these particular proceedings did not
culminate in acts of personal injury or in the destruction of property.
This has only been avoided by the fact that the United States fisher-
men, in a spirit of forbearance which cannot be too much commended,
but which cannot be always anticipated, have yielded to an exhibition
of force which they had not the power to resist.
The Government of the United States cannot reject the conviction
that the protracted delay of Her Majesty's Government in the matter
PERIOD FROM 1871 TO 1905. 715
of the disturbances at Fortune Bay has strengthened the impression of
the provincial fishermen that the course of Her Majesty's Government
had shown no severe condemnation for the violent methods which have
been pursued to defeat a competition which was fairly purchased.
It is impossible that this condition of things should be looked upon
with indifference by either government. The Government of the
United States cannot believe that Her Majesty's Government would
prefer that the Government of the United States should by the exhibi-
tion or exercise of force in the provincial waters maintain the obliga-
tions of the treaty of Washington, rather than that by the exercise of
the power of the British Government our fishermen should be secured
in the use of their treaty rights; and yet, unless some prompt remedy
be found, the fishermen of the United States must abandon entirely
their fishing rights upon the shores of Newfoundland, or they must
enforce their rights by methods which will necessarily threaten, first
the local peace, and then the amicable relations of the two countries.
You will say further that the Government of the United States ear-
nestly presses these complaints upon the immediate attention of Her
Majesty's Government for that fair and full compensation to which
the United States fishermen are entitled for this violent interruption
of their lawful industries, and in this connection you will impress
upon Her Majesty's Government that the immediate and direct loss of
cheap bait cannot be accepted as the measure of damages in these
cases. These repeated infractions of treaty obligations have disor-
ganized the whole fishing industry which the treaty was intended to
protect. No vessel can calculate with certainty whether she will be
allowed to catch her own bait or forced to purchase it, and so a whole
cruise may be rendered profitless by this denial of the right to procure
bait. But independent of this pecuniary advantage, Her Majesty's
Government cannot surely deny that this systematic demonstration of
violence against citizens of the United States pursuing a lawful in-
dustry is in itself cause of serious complaint and fair indemnity.
You will present these views in your own manner to Lord Granville,
but if you find it necessary to impress upon Her Majesty's Govern-
ment the earnestness of the Government of the United States, you are
at liberty to read him this dispatch confidentially, as in the exercise
of your own discretion, without express instructions from your gov-
ernment to that effect.
I am, &c., WM. M. EVARTS.
[Inclosure No. 1.]
Deposition of John Dago.
November 18, 1880.
(Received February 2, 1881.)
I, John Dago, master of the American schooner Concord, of
Gloucester, Mass.. do, on oath, depose and say that I left Gloucester
on the 1st of April, 1880, for a trip to the Grand Banks. Our first
baiting was at Freshwater Bay, Newfoundland, buying capelin and
ice to the amount of twenty-five dollars. On the 9th of August, 1880,
we went into a cove in Conception Bay, called Northard Bay, for
squid. I put out four dories and attempted to catch my bait with
the squid jigs or hooks used for that purpose. My men went into
716 CORRESPONDENCE, ETC.
the immediate vicinity of where the local shore boats were fishing for
squid, but in a short time they returned and reported to me that they
were not allowed to fish by the men on board the shore boats, and not
wishing any trouble they returned on board. I then manned my lines
on the vessel and commenced to catch squid; the men in the shore
boats seeing us fishing came off to us to the number of sixteen boats,
with some thirty men. These men demanded that I should stop fish-
ing or leave, or else buy squid from them. They were very violent
in their threats, and to avoid trouble I bought my squid, paying them
one hundred and fifty dollars for the squid, which I could easily have
taken if I had not been interfered with.
Wherever I have been in Newfoundland I find the same spirit ex-
ists, and that it is impossible for any American vessel to avail herself
of the privileges conferred by the Treaty of Washington; that the
fishing articles of that treaty are entirely useless and valueless, and
in no sense does the American fisherman receive any benefit from the
treaty.
JOHN DAGO, Master.
MASSACHUSETTS, Essex, ss:
GLOUCESTER, November 18, 1880.
Personally appeared the above John Dago and made oath to the
truth of the above affidavit.
AARON PARSONS, Notary Public.
[Inclosure No. 2.J
Depositions of Joseph Bowie, master, and Charles Cr. Ferguson, one
of the crew.
November 18, 1880.
(Received February 2, 1881.)
I, Joseph Bowie, master of the American schooner Victor, of
Gloucester, Mass.. do, on oath, depose and say that I sailed from
Gloucester on or about the 7th of June, 1880, for a trip to the Grand
Banks for codfish. I went into Musquito. Newfoundland, three times
for bait, and bought capelin from the local fishermen, which they had
taken in seines of their own. I paid for bait (and ice to preserve it)
sixty-six dollars for the three baitings. The next time I went to a
place called Devil's Cove on the chart, but it is called Job's Cove by
the people; this was on the 4th of August, and the only bait to be
obtained was squid. I anchored in the cove about £ of a mile from
the shore, and commenced to catch squid with the common hooks or
jigs used for that purpose. I had no nets or seines on my vessel. I
had been fishing about fifteen minutes when some sixty boats that
had been fishing in-shore from us, manned by at least one hundred and
fifty men, rowed up alongside of us and forbade our taking any
squid. I was not interfering in any way with their fishing, they
being a long distance inside of us; in fact, we were outside of the
cove, in open water. I had intended to buy my squid, but finding
them plenty I found I could catch them and save the expense of buy-
ing. I was acting in perfect accordance with my treaty rights and
knew what my rights were.
PK&IOD FRO 3,1 1371 TO 1905. 717
I tried to reason with these people, and told them that I had a right
to take bait or other fish without being restricted to any distance
from shore; and that I should not interfere with them, and they had
no right to molest me. I told them the United States had paid a
large sum for this privilege, but they declared they knew nothing
about it and cared nothing about it. They told me I should not
catch my bait, but should buy it of them. I kept on fishing, and they
then attempted to board my vessel, they threatened to cut my cable,
and threatened other violence. Finding myself powerless against so
many, I told my crew to haul in their lines and stop fishing, which
they did; this pacified the mob and they then left me.
The next morning I determined to fish and not submit to this vio-
lence. I manned my lines and commenced to fish. The boats came
off in large numbers, and the men were very violent; they said, " We
warned you not to fisi . yesterday, and we will cut your cable and
drive you on shore if you don't stop." They came alongside, struck
at my men with their oars, and some of the men leaped on the vessel
and gathered around the windlass. I went forward and asked them
if they were aware what they were doing; they told me they were
and that I should not fish there; at the same time I saw a heavy
oar lifted over my head and jumped oneside to avoid the blow which
if it had struck me would have struck me down. In the meanwhile
the mob had entirely destroyed our lines and jigs, leaving me no
means of fishing. The boats being around my bow at the cable, and
knowing if it was cut my vessel would be likely to go on shore, as the
wind blowed directly on, I had to submit again to mob violence and
agreed not to fish any more.
They then left my vessel and went for the American schooner
Mpro Castle, which had come in and was trying to catch bait. The
wind blowed so hard that I was obliged to get under way and leave
without my bait. As my trip depended on my getting bait speedily, I
returned there and bought my bait the next day, paying one himdrsd
and twenty dollars for squid. I was obliged to do this, as there was
no squid at any other place. It is universal in the baiting places at
Newfoundland to experience the same feeling and action, and it is
impossible for American vessels to take their own bait, as the local
fishermen will not allow it, but compel us to purchase it of them.
We are thus compelled to pay at least $100.000 yearly, although the
treaty of Washington gives us a perfect right to take these fish, and
I am satisfied that the United States receives absolutely nothing for
the immense sum paid for the privilege of fishing on the coast of
British North America.
JOSEPH BOWIE,
Master of Schooner Victor.
I, Charles G. Ferguson, one of the crew of the schooner Victor of
Gloucester, Mass., do on oath depose and say that I was on board (he
schooner and know that all the facts stated by Captain Bowie are
true.
CHARLES G. FERGUSON,
One of the Crew.
718 COEKESPOISIDEJNCE, ETC.
MASSACHUSETTS, Essex, ss :
GLOUCESTER, November 18, 1880.
Personally appeared the above-named Joseph Bowie, master, and
Charles E. Ferguson, one of the crew, of schooner Victor, and made
oath to the truth of the above affidavit.
Before me.
AARON PARSONS, Notary Public.
Mr. Evarts to Mr. Lowell.
No. 110.] DEPARTMENT OF STATE,
Washington, February 4, 1881.
SIR: The communication from Her Britannic Majesty's secretary
of state for foreign affairs, Lord Granville, of October 27, 1880, re-
specting the' disturbance which occurred at Fortune Bay on the 6th
of January, 1878, was duly received in your dispatch, No. 81, of
October 28, 1880.
As the separation of the questions raised by that occurrence and
the method of their solution were general suggestions on the part of
Her Britannic Majesty's Government, I had naturally supposed that
this dispatch would have been followed by such definite propositions
as this government could either accept or decline, the more so as I
had (on June 12, 1880), in reply to your telegraphic report of a con-
versation with Lord Granville, authorized you to say that —
" The President will be quite ready to entertain any considerations
which may be presented to the Secretary of State to relieve the ques-
tion of the fisheries from its present difficulties."
If, however, as circumstances would seem to indicate, I am to con-
sider this communication as a preliminary inquiry from Lord Gran-
ville for the purpose of learning whether such suggestion would be so
favorably received by this government as to justify the opening of
direct negotiation, it becomes my duty to put you in possession of
the impressions which this inquiry has made upon the Government
of the United States.
As I understand the purport of Lord Granville's communication,
Her Britannic Majesty's Government desires to arrange the compen-
sation due the United States fishermen for the disturbances at For-
tune Bay, without the formal consideration or decision of any ques-
tions of treaty construction which the facts of that disturbance might
seem to raise, resting the right of compensation solely upon the
unlawful violence exercised by British subjects in Newfoundland.
The facts in this case are not complicated, and the calculations are
simple. The United States Government does not see in its present
condition or character sufficient grounds to require any very elaborate
method of decision, such as a commission, or the necessity for any
protracted inquiry. If Her Britannic Majesty's Government will
propose the submission of the computation of damages to the sum-
mary award of the Secretary of State of the United States and Her
Britannic Majesty's representative at Washington (this function to
be exercised either directly or by such delegation as may seem to them
PEEIOD FEOM 1871 TO 1905. 719
judicious), the Government of the United States will accept the
proposition and close this controversy on the basis of that award.
But in signifying to Her Britannic Majesty's Government the will-
ingness of the United States to accede to such a proposition, you will
carefully guard against any admission of the correctness of those
views of our treaty rights which are expressed, either explicitly or by
implication, in Lord Granville's communication of October 27, 1880.
The views of this government upon the proper construction of the
rights of fishery guaranteed by the treaty of Washington have been
fully expressed in my former dispatches, and no reasons have been
furnished to induce a change of opinion. The delay in the settlement
of the Fortune Bay case has been already too long protracted. It
has provoked a not unnatural feeling of irritation among the fisher-
men of the United States at what they conceive to be a persistent
denial of their treaty rights, while it is to be feared that it has encour-
aged among the provincial fishermen the idea that their forcible re-
sistance to the exercise of these rights is not without justification in
their local law and the construction which Her Britannic Majesty's
Government is supposed to have placed upon the provisions of the
treaty.
It is now three years since twenty-two vessels belonging to the
United States, and engaged in what by them and their government
was considered a lawful industry, were forcibly driven from Fortune
Bay under circumstances of great provocation and at very serious
pecuniary loss. And this occurred at the very time when, under the
award of the Halifax commission, the Government of the United
States was about paying to Her Britannic Majesty's Government a
very large amount for the privilege of the exercise of this industry by
these fishermen.
In March of the same year, 1878, this very grave occurrence of Jan-
uary was brought to the attention of the British Government in the
confident hope that compensation would be promptly made for the
losses caused by what the United States Government was willing to
believe was a local misconstruction of the treaty or a temporary and,
from ignorance perhaps, an excusable popular excitement.
It is unnecessary to do more than recall to your attention the long
and unsatisfactory discussion which followed the presentation of this
claim, and especially the fact that in its progress the Government of
the United States was compelled to express with emphatic distinctness
the impossibility of accepting the subordination of the treaty rights to
the provisions of local legislation, which was apparently put forward
by Her Majesty's Government as a sufficient ground for the rejection
of the claim. And it was not until April, 1880 (a delay of two years,
during which the importance of an early settlement was urged upon
Her Majesty's Government) , that, after what this government under-
stood and accepted at least as a satisfactory modification of the as-
sumption, we were informed by Lord Salisbury that —
" Her Majesty's Government are of opinion that, under the cir-
cumstances of the case as at present within their knowledge, the claim
advanced by the United States fishermen for compensation on ac-
count of the losses stated to have been sustained by them on the occa-
sion in question is one which should not be entertained."
This decision of Her Majesty's Government terminated any further
discussion, and the Government of the United States found itself com-
720 CORRESPONDENCE, ETC.
pelled to protect the interests of its citizens by such methods as might
commend themselves to its judgment. In addition to the Halifax
award which we had paid for the privileges and rights the exercise of
which is now denied our citizens, we were also continuously paying, in
the shape of a remission of duties, some $300,000 per annum for this
abortive right. Thus forced into position of antagonism which it pro-
foundly regretted, the Government of the United States was about to
take such action as would at least suspend this annual payment until
the two governments were in accord upon the construction of the
treaty, when Her Majesty's Government, through the United States
minister in London, suggested, June 9, 1880, that the consideration of
the subject be resumed between the two governments, and that in such
consideration, the two questions of the interpretation of the treaty and
the attack upon the American fishermen be separated. To that sug-
gestion I replied June 12, 1880, communicating my great gratification
at the friendly disposition of the British cabinet, and saying that the
President would be quite ready to entertain any considerations which
may be presented to the Secretary of State to relieve the question of
the fisheries from its present difficulties.
On October 27, 1880, Lord Granville addressed you the communica-
tion which is the subject of this dispatch. I regret to find in this
communication a disposition to restrict a liberal compensation for an
acknowledged wrong by limitations of the fishing rights accorded by
the treaty, to which this government cannot consent. The use of the
strand, not as the basis of an independent fishing, but as auxiliary to
the use of the seine in these waters, where seine-fishing is the only pos-
sible mode of taking herring, has been maintained by this govern-
ment in my former dispatches, and would seem to be justified by the
explicit declaration of Her Majesty's Government in the " case " sub-
mitted by them to the Halifax commission, in which referring to the
use of the shores, it is affirmed " without such permission the practical
use of the inshore fisheries was impossible." But as Lord Granville
distinctly refers the propriety and justice of these limitations to fur-
ther negotiations, I will not now discuss them, reserving what I deem
it right to say for a future dispatch in reference to the second of his
lordship's suggestions.
I have recalled to your attention the history of the Fortune Bay
outrage in order that you may express to Her Britannic Majesty's
Government the great disappointment which this long delay in its
settlement has occasioned. The circumstances under which it oc-
curred were such as to induce this government to anticipate prompt
satisfaction, and it is impossible not to feel that the course which the
British Government has thought fit to pursue has seriously affected
public opinion as to the worth of the treaty which it was hoped by
both countries had promoted an amicable solution of long-standing
difficulties.
The United States government cannot feel that justice has been
done its citizens in the protracted discussion which this occurrence
has provoked, and while perfectly willing to endeavor, in concert with
Her Britannic Majesty's Government, to find some practical and
friendly solution of the differences of construction as to the treaty
provisions which their application seems to have developed, this gov-
ernment cannot consent that pending such discussion, its citizens
PERIOD FROM 1871 TO 1905. 721
shall be exposed to the indignity and loss which have been imposed
upon them by these and like occurrences.
You will intimate courteously, but firmly, to Lord Granville that in
accepting what we understand to be the proposition of Her Majesty's
Government, it is understood as carrying the idea that the settlement
suggested will be put in course of immediate execution, and that the
determination of the amount of compensation will not be formally
confined by any limitation arising from any construction of the treaty
which may be matter of difference between the two governments.
So useful to the great interests involved do I regard the prompt
settlement of this incident in our fishery relations, that I should be
glad to hear by telegraph that Lord Granville concurs in the simple
form of award which I have proposed.
In imparting to the British Government these views you may, in
your discretion, read this dispatch to Lord Granville, and if he desires
it leave him a copy.
I am, &c., WM. M. EVARTS.
Earl Granville to Sir E. Thornton.
FOREIGN OFFICE, February 18, 1881.
SIR, The United States' Minister at this Court called upon me here
on the 16th instant.
Mr. Lowell read to me a despatch addressed to him by the United
States' Secretary of State, dated the 4th of this month, relative to the
occurrences at Fortune Bay; when he had finished reading it, I ob-
served that I could only reply to it officially after having considered
the despatch, a copy of which he communicated to me, for a day or
two, in consultation with my colleagues, but I added that its tone was
one of complaint, and hardly in unison with the conciliatory course
which Her Majesty's Government have taken in the matter.
Mr. Lowell, however, assured me that he did not believe that it was
intended to convey this impression, but that inasmuch as public opin-
ion in the United States had been somewhat excited upon the subject,
his Government had deemed it necessary to place once more their
views upon record.
I went on to say that in any case I did not wish to dwell on a matter
of form, but that as to the substance of the despatch, there seemed
to be propositions in it with which I believed that Her Majesty's
Government would be disposed to agree ; that there would be no ob-
jection to the reservation by each Government of their opinion as to
their respective rights, but it might be hoped that such questions
would be set at rest both by the agreement which would be come to
as to the amount of damages to be paid to the United States' fisher-
men, as well as by the Regulations wl^ich might be established in the
future.
I added that the proposal of the United States' Government, that
the question of damages should be arranged by negotiation between
the Secretary of State and yourself, or by parties delegated by each of
you respectively for that purpose, appeared to me to be good.
92909°— S. Doc. 870, 61-3, vol 3 7
722 CORRESPONDENCE, ETC.
Mr. Lowell said that whilst unwilling to precipitate the discussion,
he was desirous of impressing upon me the great importance of the
right to the strand fishery, and of the bait question.
But I suggested that we should not go further into these matters at
present.
I am, &c.
(Signed) GRANVILLE.
Mr. Evarts to Mr. Lowell.
[Telegram.]
WASHINGTON, February 18, 1881.
Despatch 109 was a necessary preparation of the tone of 110 and
if not shown with it should be, with an explanation that it should
have been. I consider it important that the reference of damages
to British Minister and me should be prompt and full. Telegraph
result.
EVARTS.
Mr. Evarts to Mr. Lowell.
[Telegram.]
WASHINGTON, February 19. 1881.
If you have not already followed instructions in my last telegram,
do so at your interview Monday, and telegraph the submission, if it
is agreed to.
EVARTS.
Mr. Lowell to Mr. Evarts.
[Telegram.]
LONDON, February 19, 1881.
Have received telegram. Communicated orally last Wednesday
the fact of new outrages stated in 109. Secretary of State for For-
eign Affairs fully impressed with importance of prompt answer. A
meeting of the Cabinet this afternoon. Interview with the Minister
for Foreign Affairs next Monday. If reference assented to, as I
hope, it should modify terms in which I transmit the text of the 109.
This was my understanding of discretion left to me.
LOWELL.
Mr. Lowell to Mr. Evarts.
[Telegram.]
LONDON, February %1, 1881.
Second telegram received. I had an interview with Secretary of
State for Foreign Affairs this afternoon. He assents to the refer-
ence of the question of damages to you and Sir Edward Thornton
or to your and his delegates and each side reserving its view of its
PERIOD FROM 1871 TO 1905. 723
rights under the treaty. In case of delegation Secretary of State
for Foreign Affairs would prefer there should be umpire. I inferred
he would prefer a member of diplomatic body at Washington speak-
ing English. Wished me to ask if you would prefer to this arrange-
ment the offer of a lump sum. I communicated to him as you directed
your No. 109.
LOWELL.
Mr. Lowell to Mr. Evarts.
[Extract]
No. 130.] LEGATION OF THE UNITED STATES,
London, February #£, 1881. (Received March 5.)
SIR: Immediately on receiving your dispatches numbered respec-
tively 109 and 110, which reached me during the forenoon of the
15th, I addressed a note to Lord Granville, asking for an interview.
In reply, he appointed 3 o'clock next day (the 16th) and at that hour
I accordingly saw him at the foreign office. I carried with me copies
of both dispatches, but said nothing about No. 109, because the read-
ing to him of that was left to my discretion, and I thought it wiser
to be guided by the tone and results of our conversation. I merely
communicated the fact of new outrages and the natural feeling pro-
duced by them. After the reading of the dispatch (No. 110), Lord
Granville said that he " regretted the tone of it as more exacting than
he had hoped it would be, and hardly in unison with the conciliatory
course of Her Majesty's Government." The ground of this hope, he
gave me to understand, had been the friendly terms of your telegram
of 12th June last. I answered that I had no reason to believe that
the tone of the dispatch indicated any diminution on the part of the
United States of amicable feeling, but was the expression only of a
natural impatience at excessive delay. I added that, though I had no
information as to how much weight my government would attach to
the allegations of Professor Hinde, yet that they had been brought
before Congress by Mr. Springer, would be generally believed by the
fishermen, and would tend to exasperate public opinion, already
impatient.
Lord Granville said * * * that at first sight there seemed to be
propositions in the dispatch with which Her Majesty's Government
would be inclined to agree. The proposal to refer the question of
damages to you and Sir E. Thornton, or to two persons delegated by
you and him, seemed to him to be a good one. But on the whole
matter he must consult his colleagues before replying definitely. He
added that he had no objection to the reservation by each government
of their opinions as to their respective rights under the treaty. It
might be hoped that such questions would be set at rest both by the
agreement which might be come to as to damages to be paid to Amer-
ican fishermen, and by the regulations to be established for the
future.
I replied that I had certainly no intention to precipitate discussion,
but wished to impress on him the great importance of the right of
strand fishing, referring hi illustration to the concession of a part of
the shore to France.
724 COBBESPONDENCE, ETC.
The conversation was brief, for I thought it best not to enlarge
upon what was expressed with sufficient distinctness by the despatch.
I could see by Lord Granville's expression that he was greatly dis-
appointed, and even somewhat disturbed, by the tone the discussion
seemed to be taking. I did what I could to dissipate this feeling,
assuring him of the earnest desire of my Government for a speedy
and amicable settlement of the questions at issue. As the Cabinet
was to meet on the afternoon of Saturday, the 19th, we arranged for
another interview on Monday, the 21st.
Your first telegram reached me late on Friday night. On Saturday
morning I called on Lord Granville at his house, and informed him
that I had another dispatch to communicate, which I had withheld on
Saturday, in the exercise of my discretion, the tenor of which it was
desirable that he should know before consulting with his colleagues in
the ministry. I then stated to him the substance of it, informing him
at the same time that you considered it as a necessary introduction to
your No. 110, and that I had misinterpreted the meaning of my in-
structions in regard to it. He said that he should prefer not receiving
it at that time, and having accomplished the main point of letting
him know its contents, especially the intimation that the necessity
might be forced on the President of a display of force to protect our
fishermen, I consented to postpone its official communication till Mon-
day. At our interview on that day, I read to him confidentially the
important passages which I had before put in my own words. He
said that he should be sorry to consider them as conveying a menace.
I replied that their evident meaning was to express only the grave
anxiety of the President at the consequences of prolonged delay.
The result of the interview I have already transmitted by telegraph.
Lord Granville assented to the reference as proposed by you, only
adding that, in case you and Sir E. Thornton should delegate your
powers, he should prefer that you would name an umpire, to decide
disputed points. I inferred that his own choice would be any mem-
ber of the diplomatic body at Washington who could speak English.
He also wished me to ask whether the offer of a lump sum in damages
would be considered by you.
I regret very much that a misapprehension on my part should have
led me to act on a misinterpretation of my instructions. I acted ac-
cording to my best judgment, and in the desire not in any way to em-
barrass a ministry of whose friendly intentions I was assured, and
against whom the chief reproach on the part of the opposition is that
their policy is one of timid concession, consulting rather their own
apprehensions and interests than the honour of England*
I have, &c.,
J. R. LOWELL.
Mr. Evarts to Mr. Lowell.
[Telegram.]
WASHINGTON, February 83, 1881.
Telegram very gratifying. Lump sum preferred. -Amount with
three years' interest, five per cent, is about $120,000. An offer of two-
thirds, $80,000, would accomplish a better purpose in reference to the
PERIOD FROM 1811 TO 1905. 725
larger interests pending between the Governments than a lower cal-
culation. Probably British Minister will telegraph opinion to the
effect. If such offer is made you may express opinion that it will be
acceptable. Anything less if desired you may communicate but dis-
courage as to acceptance.
EVARTS.
Mr. Lowell to Mr. Evarts.
[Telegram. ]
LONDON, February 24, 1881.
Third telegram received. I had an interview with Secretary of
State for Foreign Affairs at four this afternoon. He offers fifteen
thousand pounds in full settlement of Fortune Bay claims and those
stated in your instruction 109. I said I believed my Government
would accept eighty thousand dollars; I was not authorized to accept
less. I am sure that Cabinet cannot be brought to a higher Qffer than
fifteen thousand. If offer not accepted, Secretary of State for For-
eign Affairs ready to fall back upon the plan of reference proposed
by you.
LOWELL.
Earl Granville to Sir E. Thornton.
FOREIGN OFFICE, February &£, 1881.
SIR: The United States' Minister called upon me this afternoon,
and informed me that he had received a telegram from Mr. Evarts,
in which the latter expressed satisfaction at the suggestion I had
made of the offer of a lump sum in compensation for the losses suf-
fered by the United States' fishermen at Fortune Bay.
Mr. Evarts added that he preferred this mode of settlement, and
that he considered the total amount of the claims, with interest,
amounted to about 120,000 dollars.
I told Mr. Lowell that I had had an opportunity of consulting my
colleagues on the question, that we had agreed that it would be best
not to look too narrowly at the intrinsic value of the claims put
forward by the American fishermen, but to have regard to the more
general considerations involved. I said I was not authorized to
enter into any process of bargain as to the exact amount which would
actually cover the losses, but to offer, on behalf of Her Majesty's Gov-
ernment, the payment of a lump sum of 15,OOOZ., or, say, 75,000
dollars, in full settlement of the question of damages, including inter-
est, and also the two smaller cases which he had been instructed to
bring to my noticed few days ago. With regard to these latter, I
observed that the only testimony we had was all on one side, and
that, if they had to be separately considered, it would be necessary to
call for counter-evidence. They were, however, cases in which,
primd facie, the Newfoundland fishermen appeared not to be in the
right. At the same time, it was clear that the amount of pecuniary
damage must be very small.
726 CORRESPONDENCE, ETC.
I added that, if our offer was not acceptable, we should be quite
ready to adopt the proposal made in Mr. Evarts' despatch, that the
matter should be referred to you and him, or to Delegates chosen by
each of you. Each party, I observed, were agreed to reserve the
question of the rights which they respectively claimed under the
Treaty, and to treat this matter separately from the discussion of the
pecuniary payment.
I mentioned to Mr. Lowell that I had at first been taken by sur-
prise at an idea put forward in the despatch of which he had told
me the substance last Monday, namely, the possibility of the Presi-
dent sending a ship to protect the American fishermen on the coast
of Newfoundland ; but that, on consideration, it appeared to me that
such a course might be taken which might be of great advantage, if
each Government sent vessels with Commanders who received identic
and conciliatory instructions for the purpose of keeping the police
among the fishermen of their respective countries.
Such a practice has been in force with good effect for some time on
the part of the British and French Governments.
I am, &c.
(Signed) GRANVILLE.
Mr. Evarts to Mr. Lowell.
[Telegram.]
WASHINGTON, February 25, 1881.
Regret offer not quite up to expectations, but accept assuming that
amount can presently be at my disposal for immediate distribution.
This latter not a condition of acceptance but important in view of
conditions.
EVARTS.
Sir E. Thornton to Earl Granville.
[Extract.]
WASHINGTON, February 28, 1881.
(Received March 12.)
On the morning of the 23rd instant Mr. Evarts wrote to me that
he had received a telegram from Mr. Lowell, and begged that I would
call upon him at the State Department as soon as I could. On my
arriving there he read to me the telegram which related to the For-
tune Bay affair. It was much shorter, and contained less detail than
your Lordship's telegram of the 22nd instant, which I had had the
honour of receiving on the previous evening. It stated that Her
Majesty's Government was disposed to accept the proposal that the
amount of damages caused to American fishermen should be settled
by Mr. Evarts and myself, or by Delegates appointed by us, but
thought that there should be a previous agreement to refer the matter
to a third person, in case the delegates should fail to agree. The tele-
gram added that Her Majesty's Government would prefer to make an
offer of a fair sum to settle the claims of the American fishermen.
PEKIOD FROM 1871 TO 1905. 727
I then communicated the substance of your Lordship's telegram to
Mr. Evarts, and observed that I had understood it to signify that
the question should be referred to a third person, whether it was he
and I or the Delegates named by us who should disagree; but he
expressed the opinion that Mr. Lowell had rightly interpreted what
your Lordship had said.
He went on to say that the Government of the United States would
prefer that Her Majesty's Government should make an offer of a
lump sum in satisfaction of the damages caused to American fisher-
men in the Fortune Bay affair. He hoped, however, that it would be
a generous offer; for that an illiberal one would be worse than none.
He believed that a liberal view of the matter would create a good
feeling and would contribute to the success of, and facilitate, any
future negotiation which must come on sooner or later with regard
to the fisheries question.
I replied that your Lordship's note of the 27th October last and the
offer now made was a sufficient proof that Her Majesty's Government
wished to deal with the question in a spirit of liberality.
On the evening of the 25th instant your Lordship's telegram of
that day reached me, and on the following day I called upon Mr.
Evarts, who read me a telegram which he had received from Mr.
Lowell on the evening of the 24th instant, informing him that your
Lordship had offered the sum of 15,OOOZ. in settlement of the claims
comprised in Mr. Evarts' two despatches to Mr. Lowell. He also
read me his answer, which he had forwarded on the 24th instant, to
the effect that the United States' Government accepted the offer, ex-
pressing the hope that the amount would be available at once, though
it did not make this a condition of its acceptance.
Mr. Evarts to Mr. Lowell.
[Telegram.]
WASHINGTON, March 8, 1881.
Secretary's offer as communicated to me by your telegram of 24th
February was £15,000 for Fortune Bay and those mentioned in No.
109. This I accepted by my telegram of February 25. This com-
pleted the subject, and the amount as definitely ascertained, and
showed no indistinctness or discrepancy of views. All the previous
communications either way related to Fortune Bay alone. My cal-
culation of $80,000 was on computation of two-thirds aggregate of
Fortune Bay claims. Claims of No. 109 were introduced specifically
by secretary as additional to Fortune Bay, and I accepted the sum
offered for both.
I cannot consent to any modification of the completed settlement of
specific claims. I have at no time treated except of definite pecuniary
interests of claimants in my charge. The agreed sum measures these
claims and goes to these claimants. I have been willing to give every
assurance to cover all claims brought to the knowledge of either gov-
ernment, and authorized you to inform secretary that as matter of
fact no others were entertained by this government. All this was not
728 CORRESPONDENCE, ETC.
part of the offer made and accepted, and came in as new matter after-
wards.
You will explain to secretary the impossibility of my changing the
subject of negotiation after an agreed valuation of that subject.
Should the offer be retracted after its acceptance or new conditions
be imposed afterwards which would not have been entertained as an
original subject, I must regret that the effort to remove a serious ob-
stacle to friendly disposition of the fishery controversy should have
increased the difficulties which embarrass it.
If the money is paid under the assurance authorized by my last,
telegraph me. If it is not, you may say to the secretary that this gov-
ernment will await his early attention to Nos. 109 and 110, which
must stand unaffected by anything which has passed since.
EVARTS.
Earl Granmlle to Sir E. Thornton.
FOREIGN OFFICE, March 3, 1881.
SIR, The United States Minister called upon me to-day, and com-
municated to me the substance of a telegraphic despatch from Mr.
Evarts, of which a copy is inclosed. I observed that I shared Mr.
Evarts' regret at our being unable so far to arrive at an agreement,
as I had looked forward to the great satisfaction of settling the mat-
ter with him ; but that if it was the fear of new claims which made
him hesitate to give the assurance required by Her Majesty's Gov-
ernment, he must remember that they ran a similar risk. I was not,
however, aware of any claims, excepting those which he had men-
tioned, though there had been brought to the notice of Her Majesty's
Government two cases, of which I furnished him with the particu-
lars, in which complaints had been made of the interruption of Amer-
ican vessels, the "Moro Castle " and "Minnesota " when engaged in
collecting bait. It did not appear that either of these cases was of
importance.
I am, &c. (Signed) GRANVILLE.
Earl Granmlle to Sir E. Thornton.
FOREIGN OFFICE, March 3, 1881.
SIR, I have received your telegraphic despatch of the 2nd instant,
and I have to state to you, in reply, that Her Majesty's Government
did not intend to put forward a fresh alternative, but desired only
to allude to the original offer made by the United States' Secretary
of State to have the matter referred to you and him, or else to Dele-
gates nominated respectively by each of you, with the addition that
provision should be made for reference to a third person in the event
of disagreement.
I am, &c. (Signed) GRAXVILLE.
PERIOD FROM 1871 TO 1905. 729
Mr. Evarts to Mr. Lowell.
[Telegram.]
WASHINGTON, March 5, 1881.
Read my dispatch 110, fourth and fifth paragraphs, relating to
arbitration, and ask secretary whether he was and is ready to submit
the matter there stated to summary award of Secretary of State and
British minister. If so, say to him that as he has expressed a prefer-
ence for a lump sum rather than this summary award, and I agree
in this preference, that I will receive a proposition from him of a
lump sum for the Fortune Bay claims, and if it comes up to two-
thirds of these claims, or $80,000, you have authority to accept it. If
not, you may communicate any offer he wishes to make for the For-
tune Bay claims. I renew the subject in this way as a last effort to
remove the obstacle these claims as heretofore treated by British
Government interpose to a liberal disposition of the more permanent
interests involved, and to supersede, if possible, the record made by
the recent communications between the governments that an explicit
offer of a lump sum for the Fortune Bay claims and those named in
No. 109 was retracted after its explicit acceptance by this govern-
ment. You may say to the secretary that I will also receive a propo-
sition of a lump sum for the claims in 109, and if it comes up to
£15,000 you may accept it. If not, communicate it.
Carefully distinguish in this dispatch what you are to say to secre-
tary and what you are instructed to do upon what may follow.
You will use your own discretion as to the terms in which you will
impress upon secretary my earnest desire to relieve the important
discussions on the fisheries which must soon engage the two govern-
ments from the disturbing influence of the unsatisfied Fortune Bay
claims.
You will of course understand that if secretary is ready to close
the offer of £15,000 for Fortune Bay and No. 109 already made upon
the assurance and information you are authorized to give, you can
close the matter at once and telegraph me.
In reference to last part of your last telegram, I have no difficulty
in saying and feeling that no other claims are at all likely to arise, but
I cannot receive money measured by particular claims under any
indefinite obligations to reserve or distribute it otherwise.
EVARTS.
Mr. Elaine to Mr. Lowell.
[Telegram.]
WASHINGTON, March 8, 1881.
Evarts' romnrk about advertising for claims was made to show
British minister the impracticability of sacrificing the rights of un-
known parties who might afterwards appear with just claims. At
present no such claims tire believed to exi<4. but I could not consent in
settling the known claims of one class of persons to bar the claims of
another class without notice.
730 COKBESPONDENCE, ETC.
The simple question is whether Lord Granville is willing to adjust
the claims comprehended in 109 and 110, either by payment of lump
sum or by reference of the whole matter to British minister and my-
self. I am ready to consider either mode of adjustment.
BLAINE.
Mr. Lowell to Mr. Elaine.
[Telegram.]
LONDON, March 9, 1881.
Interview with the minister for foreign affairs this afternoon. He
says cabinet equally desirous with Evarts to accelerate settlement.
As Evarts did not see his way to accept terms last offered, secretary is
willing to consent to reference either to you or late Secretary of
State with British minister at Washington. Is willing to pay £15,-
000 for all claims up to end of last year. If cruisers be sent as inti-
mated in 109, he would be glad to know your opinion of joint cruisers
with joint instructions.
LOWELL.
Mr. Lowell to Mr. Elaine.
No. 141.] LEGATION or THE UNITED STATES,
London, March 12, 1881. (Received March 25.)
SIR: Referring to my 138, I have the honor to report that on
receipt of Mr. Evarts's telegram on the 7th of March, I had an inter-;
view with Lord Granville at the foreign office, the result of which I
communicated to you by cable. I have very little to add except that
I ascertained that Lord Granville's ideas of a lump sum for the For-
tune Bay claims, and those in your 109, did not rise above £6,000.
He considered the £15,000 already offered, so " excessive " that it
would be impossible to go before Parliament with it except as a pay-
ment in full.
I represented to him as strongly as I could that it looked much
smaller to us than to him, and that it would promote a cordial un-
derstanding if these old claims could be got out of the way. I sug-
gested that he should offer a larger sum for a full receipt up to that
time, a few thousand pounds being of little importance compared
with the amicable relations of the two nations. The justice of this
view I have also endeavored to impress upon other members of the
cabinet, as I chanced to meet them. I found them all very friendly
and anxious to arrive at a final settlement of a delicate question, but
apparently all of one mind as to the adequacy of the sum offered to
cover the claims.
On the morning after my interview with Lord Granville, I sent
him at his request a copy of such parts of your telegram as could
properly be communicated to him.
On the arrival of your telegram, received on the 9th of March, I
had another interview with Lord Granville at the foreign office and
explained to him the passage about " advertising for claims," which
PEEIOD FROM 1811 TO 1905. 731
had puzzled him in Sir Edward Thornton's dispatch. The result of
our conversation I have already forwarded by cable. I have nothing
of importance to add except that I insisted that up to the 26th of
February my distinct understanding was that the £15,000 were
offered for Fortune Bay claims and the two in your No. 109.
I omitted to mention in my former dispatch that Lord Granville,
at one of our earlier interviews, wished me to inquire whether my
government, in case it should become necessary, as suggested in your
No. 109, to take measures for the protection of our fishermen, would
have any objection to the sending of joint cruisers with joint orders.
I have already stated this in my last telegram.
I have, &c.
J. R. LOWELL.
Mr. Elaine to Mr. Lowell.
[Telegram.]
WASHINGTON, March 14, 1881.
Inform Lord Granville that his proposition to refer the matter to
Sir Edward Thornton and myself is accepted. The subject of joint
cruisers may be postponed, or, if desired, may also be referred to Sir
Edward and myself to be taken up afterwards with power to agree
upon a series of regulations under which treaty rights may be mu-
tually secured.
ELAINE.
Sir E. Thornton to Earl Granville.
[Substance received by telegraph, March 12.]
[Extract]
WASHINGTON, March 14, 1881.
I have the honour to inform your Lordship that, on Mr. Elaine's
invitation, I called upon him at the State Department on the 12th
instant, for the purpose of conferring with him upon the proposed
settlement of the Fortune Bay and other claims of American fisher-
men.
Mr. Elaine said that, after due reflection, he had come to the con-
clusion that the discussion of the matter could be carried on more'
satisfactorily here than in London. He adverted to the position
which had been taken by his predecessor, and pointed out that, as
Mr. Evarts had declined to give the full assurance required by your
Lordship on the receipt of 15,OOOZ. from Her Majesty's Government,
he did not think it was in his power at once to agree to the same
terms without at least making further inquiries as to the existence of
other claims. Upon my observing that your Lordship had since then
offered to substitue the phrase " up to the end of last year " for " up
to the present time," Mr. Elaine said that, though this made a slight
alteration in the wording, the substance of the assurance to be given
was the same, for that it was hardly to be supposed that any claims
732 CORRESPONDENCE, ETC.
could be originated at this season of the year. But he authorized
me to inform your Lordship that he hoped that he and I could come
to an agreement upon the question at issue without reference to a
third person, and that, after further inquiries and when he had satis-
fied himself as to the probable existence of other claims, and should
have complete control of the claimants and of the whole matter, he
would even be able to accept your Lordship's offer of 15,0002., coupled
with a statement, on its acceptance, in the terms desired by Her
Majesty's Government.
Upon my inquiring what steps it was proposed to take with a view
to an agreement as to the rules and regulations which are to prevail
hereafter respecting the fisheries, Mr. Elaine replied that this ques-
tion would meet the early consideration of the United States' Gov-
ernment, and that he thought it was very desirable that a decision
should be arrived at as soon as possible.
Mr. Elaine was most cordial in his manner, and expressed his
earnest hope that there might be no obstacle to friendly relations
between the two Governments.
Mr. Lowell to Earl Granville.
LEGATION OF THE UNITED STATES,
London, March 15, 1881. (Received March 15.)
My LORD, I have the honour to inform your Lordship that I re-
ceived last evening a cable message from Mr. Elaine, in which he
instructs me to say that your Lordship's proposition to refer the
question of damages to American fishermen to himself and Sir
Edward Thornton is accepted, and further suggesting that the sub-
ject of joint cruisers should be postponed or should also be referred
to the same gentlemen. I inclose a copy of this telegram.
I have, &c.
(Signed) J. R. LOWELL.
Earl Granville to Sir E. Thornton.
FOREIGN OFFICE, March 17, 1881.
SIR, With reference to my despatch of this day's date in which I
inclosed a copy of a letter from Mr. Lowell forwarding a copy of a
telegram from Mr. Elaine stating that the proposition to refer to
him and to yourself the Fortune Bay indemnity is accepted, I should
wish to know whether Her Majesty's Government are to understand
that the claims in question are to be referred for investigation and
assessment, or merely in order that Mr. Elaine and yourself may
agree upon the acceptance by the United States' Government of a
lump sum upon his giving you the assurance which Her Majesty's
Government have required.
You will have seen that the telegram from Mr. Elaine does not
tally with the statement made to you by him on Saturday last, as
reported in your telegram of the 15th instant.
I am, &c.
(Signed) GRANVILLE.
PERIOD FROM 1811 TO 1905. 733
Sir E. Thornton to Earl Granville.
[Telegraphic.]
WASHINGTON, March 31, 1881.
(Received March 31.)
Mr. Blaine anxiously awaits an answer from the United States'
Minister in London with respect to his request that Fortune Bay
claims should be referred to him and myself.
Earl Granville to Sir E. Thornton.
FOREIGN OFFICE, April 2, 1881.
SIR, I have received your telegram of the 31st ultimo, in which you
inform me that Mr. Blaine is extremely anxious to learn whether
Her Majesty's Government are prepared to accede to his request that
the claims connected with the Fortune Bay dispute should be settled
at Washington between himself and Her Majesty's Minister.
I have to state to you, in reply, that should there be any misunder-
standing with regard to Mr. Elaine's meaning in pressing this mode
of settlement, it is desirable that it should be made clear. If, how-
ever, he is ready to agree that the claims of the American fishermen
should be referred to himself and yourself, or to Delegates to be
named by both, for assessment, Her Majesty's Government are pre-
pared to accept this arrangement at once.
This mode of proceeding is now preferred by the Colonial authori-
ties in this country to the payment of a lump sum, in view of the
desirability of obtaining the co-operation and concurrence of the
Government of Newfoundland.
I should be glad to learn whether anything has passed between
Mr. Blaine and yourself with regard to a reference to a third party
in case it should be found impossible to come to an agreement between
yourselves, or that the same difficulty should occur in the case of the
Delegates.
Her Majesty's Government do not wish to raise any difficulties,
and they give you full discretion to arrive at the best solution you can
make with the Secretary of State, either as regards an assessment of
the claims, or the payment by Her Majesty's Government of a lump
sum. Under present circumstances they would prefer an arrange-
ment by assessment.
I need not remind you how desirable it is, in view of the approach
of the fishing season, that a settlement of these claims should be
arrived at as speedily as possible, and also an understanding with
regard to the Regulations to be framed for the fisheries, with a view
to the prevention of future misunderstandings.
I am, &c.
.(Signed) GRANVILLE.
734 CORRESPONDENCE, ETC.
Sir E. Thornton to Earl Granville.
[Substance received by telegraph, April 5.]
[Extract]
WASHINGTON, April 4, 1881.
With reference to your Lordship's telegram of the 2nd instant, I
have the honour to inform you that I called this morning upon Mr.
Elaine at the State Department, and stated that Her Majesty's Gov-
ernment acceded to his request that the fishery claims should be
referred for assessment to him and myself, or to Delegates named by
us. I presumed that by the fishery claims your Lordship intended
to signify the Fortune Bay claims and those described in Mr. Evarts'
despatch to Mr. Lowell No. 110, the contents of which were commu-
nicated to you by the latter.
I went on to say that I was afraid that we should not be likely to
agree upon the amount of damages to be paid on account of the
claims in question, and that it would therefore be very desirable that
we should name a third person who should decide in the event of our
disagreeing. But Mr. Blaine replied that Mr. Evarts' original pro-
posal, to which he had now reverted, did not include any reference
to a third person, and that his Government was not prepared to
acquiesce in such a reference, to which he thought the subject of the
claims was not adapted.
In answer to my inquiry, Mr. Blaine said that he would rather
negotiate the matter with me than leave it to Delegates named by us.
He added that he would examine the documents upon the subject as
soon as he could, and would then invite me to meet him.
In the course of the conversation Mr. Blaine said that he should
have preferred to have negotiated on the basis of a lump sum, and
that, having now carefully examined the claims already presented,
and considered possibility of any further claims which might be
brought forward, he would have been prepared, on behalf of his Gov-
ernment, to accept the sum of 16,OOOZ., and to give a receipt in full
for all claims for interruption of American fishermen on the coasts
of Newfoundland or of its dependencies which may have arisen up
to the 4th March, 1881.
I replied that Her Majesty's Government now preferred that the
claims should be assessed, and was disinclined to negotiate upon the
basis of a lump sum.
Sir E. Thornton to Earl Granvttle.
[Substance received by telegraph, April 22.]
[Extract]
WASHINGTON, April 25, 1881.
On the 21st instant I had an interview with Mr. Blaine at the
State Department with regard to the Fortune Bay claims and those
arising from United States' fishermen having been prevented from
fishing for bait.
Mr. Blaine considers that the offer which he had made to accept
16,000?. in full of all claims of the class above mentioned up to the
PERIOD FROM 1871 TO 1905. 735
4th March last was really better for Her Majesty's Government than
that made by your Lordship of 15,OOOZ. up to the end of last year.
With a view, however, to a prompt settlement of the question, and to
entering upon a negotiation as to the regulations respecting the
fisheries which were to prevail hereafter, he was ready to accept the
sum of 15,500?. for the Fortune Bay claims and those of American
fishermen who had been prevented from fishing for bait, as well as
for all claims arising out of any interruption of American fishermen
on the coasts of Newfoundland and its dependencies up to the 4th
March last.
Earl Crranville to Sir E. Thornton.
FOREIGN OFFICE, April 28, 1881.
SIR: I have had under my consideration your despatch of the 4th
instant, reporting the substance of a conversation you had had that
morning with Mr. Blaine as to the means proposed for arriving at a
settlement of the claims of the American fishermen concerned in the
dispute which had arisen with the Newfoundlanders at Fortune
Bay in the month of January 1878.
I have informed you by telegraph this day, in reply, that Her
Majesty's Government are not prepared, without a previous examina-
tion of the individual claims, to make any further advance upon the
gross sum of 15,000/. which you have been authorized to offer to the
Government of the United States as compensation for the losses sus-
tained by the American fishermen in consequence of these transac-
tions. They are, however, willing to abide by the proposal which has
been made to Mr. Blaine, and accepted by him, that the amount of the
claims should be referred to Washington for inquiry and adjustment
between himself and you.
I request that you will convey to Mr. Blaine the views of Her
Majesty's Government in the sense of this despatch.
I am, &c.
(Signed) GRANVILLE.
Mr. Blaine to Sir Edward Thornton.
DEPARTMENT OF STATE,
Washington, May 6, 1881.
SIR: I was advised by Mr. Lowell, by his dispatch of the 9th of
March last, that Lord Granville would either pay £15,000 in the
Fortune Bay matter for a receipt in full against all claims up to and
including the close of the past year, or he would refer the matter to
yourself and me for adjustment.
I chose the latter, because I had at that time no means of know-
ing with deftniteness whether there might not be claimants whom I
could not properly bar by a receipt given without an opportunity of
a hearing assured to them.
_As I told you in our first consultation, I did not seek the reference
•with any desire to urge you to a larger sum than was offered by Lord
736 CORRESPONDENCE, ETC.
Granville, unless new facts could be found which would warrant the
demand.
Both of us have discovered, I think, that we have no practical
means of assessing the damages except by taking the facts as stated
in the American case, unless, indeed, we should resort, at great ex-
pense and with endless trouble, to a new, independent, and exhaustive
investigation by original testimony in each and every claim.
Under these circumstances it is proper that I should frankly state
to you that I find no other claims than those already presented for
wrongs inflicted in the waters of Newfoundland and its dependencies ;
and, as I originally advised you, I have no desire to urge you to in-
crease the sum offered by Lord Granville on the old claims.
My investigations have included the period up to March 4, 1881 ;
and in giving the receipt I would, if desired, be willing to cover that
period. I make this oner in the hope that you will recognise in it a
disposition on the part of the United States to be not merely just but
liberal in dealing with Her Majesty's Government on this complicated
and somewhat delicate question.
Your understanding, communicated verbally, that the injury at
Aspee Bay was to be included, is correct, and the receipt which I shall
give will cover that case.
In accepting Lord Granville's offer in this matter I desire to state
that at your convenience I will discuss the subject of joint cruisers on
the fishing grounds, and the code of instructions under which they
should san. I understand this subject to have been also referred by
Lord Granville.
I have, &c., JAMES G. BLAINE.
Sir Edward Thornton to Mr. Elaine.
WASHINGTON, May 28, 1881.
(Received May 28.)
SIR : With reference to your note of the 6th instant, relating to the
discussions which have recently taken place between Her Majesty's
Government and that of the United States with regard to the losses
alleged to have been suffered by United States fishermen in Fortune
Bay, Newfoundland, on the 6th of January 1878, in consequence of
certain acts committed by natives of that colony, I have the honor to
inform you that Her Majesty's Government is prepared to meet the
views of the Government of the United States upon this matter by
the payment of the sum of £15,000 sterling in full satisfaction of all
claims for disturbance of American fishermen in their fishing opera-
tions on the coasts of Newfoundland and its dependencies up to the
4th of March last, including the occurrences at Aspee Bay, Cape
Breton, Nova Scotia, in the Dominion of Canada, a statement of
which is made at pages 138 to 141, inclusive, of Ex. Doc. No. 84 of
the second session of the House of Representatives of the Forty-sixth
Congress.
It will, however, be clearly understood that the above-mentioned
payment will be made without prejudice to any question of the rights
of either of the two governments under Articles XVIII to XXV,
PEKIOD FEOM 1871 TO 1905. 737
both inclusive, and Article XXXII of the treaty of May 8, 1871,
between the United States and Great Britain.
I have, &c.,
EDW'D THORNTON.
Mr. Elaine to Sir Edward Thornton.
DEPARTMENT OF STATE,
Washington, May 28, 1881.
SIR : I have the honor to acknowledge the receipt of your note of
May 28, 1881, in which, referring to mine of the 6th, you convey the
gratifying intelligence that Her Majesty's Government has accepted
the terms of settlement agreed upon by us of the difficulties at
Fortune Bay, occurring on the 6th of January, 1878.
The understanding of this government is, as you state, that the
payment of £15,000 sterling is in full satisfaction of all claims for
disturbances of American fishermen in their fishing operations on the
coast of Newfoundland and its dependencies up to 4th of March last,
including the occurrences at Aspee Bay, Cape Breton, Nova Scotia, in
the Dominion of Canada, a statement of which is made at pages 138
to 141, inclusive, of Ex. Doc. No. 84 of the House of Representatives
of the Forty-sixth Congress.
This government also clearly understands that the above-mentioned
payment will be made without prejudice to any question of the rights
of either of the two governments under Articles XVIII to XXV,
both inclusive, and Article XXXII of the treaty of May 8, 1871,
between the United States and Great Britain.
You can advise me of the time and method of payment, which I
leave to be settled by your own convenience.
I have, &c.,
JAMES G. BLAINB.
Sir Edward Thornton to Mr, Elaine.
WASHINGTON, June 2, 1881.
(Received June 2.)
SIR: "With reference to your note of the 28th ultimo, I have the
honor to transmit herewith a bill of exchange in triplicate drawn by
me on Her Majesty's paymaster.-general, at thirty days after sight,
for the sum of £15.000 in full payment of the claims mentioned in the
note above referred to, and on the conditions therein expressed.
I have, &c.,
EDW'D THORNTON.
Mr. Elaine to Sir Edviard Thornton.
DEPARTMENT OF STATE,
Washington, June 4, 1881.
SIR: I have the honor to acknowledge the receipt of your note of
the 2d instant, transmitting a bill of exchange in triplicate drawn by
92909°— S. Doc. 870, 61-3, vol 3 8
738 COKBESPONDENCE, ETC.
you on Her Majesty's paymaster-general, at thirty days after sight,
for the sum of £15,000, in full payment of the claims mentioned in
my note of the 28th ultimo, and to inform you that the same is ac-
cepted by this government on the conditions heretofore agreed upon
between us.
I have, &c., JAMES G. BLAINE.
Mr. Elaine to Mr. Lowell.
No. 206.] DEPARTMENT or STATE,
Washington, July 30, 1881.
SIR : You have learned from former dispatches that the question in
reference to the Fortune Bay claims was settled by Sir Edward
Thornton and myself. The amount paid by Her Britannic Majesty's
Government has been distributed among the individual claimants,
and in connection with this subject there remains nothing for dis-
cussion between the two governments.
But in the examination of the claims in order to their proper dis-
tribution, the attention of this government has been forcibly drawn
to the condition of affairs out of which these claims arose, and the
time seems opportune to ask the serious consideration of this subject
by Her Majesty's Government.
Among the more recent claims which had not been submitted to the
British Government, but which are, of course, included in the settle-
ment, were several going to show the existence on the part of the na-
tive fishermen of Newfoundland of a determined opposition to the
exercise of the treaty privileges by fishermen of the United States.
In one case, a large and angry mob of these fishermen actually took
possession of an American fishing vessel, cut her anchor, and set her
sails for the avowed purpose of causing her to drift on the rocks.
And the universal testimony of our fishermen, including many who
have made no formal complaint to the government, is that they are
absolutely forbidden, by both the show and use of force, from taking
bait on the coasts of Newfoundland and in other vicinities.
It might be supposed that the recognition of the British Govern-
ment of its responsibility for such lawless interference and its rea-
sonable compensation for losses consequent upon them, would put a
stop to further violence. But the payment even of large damages
by the Imperial Government does not make itself felt upon the
provincial population. And from all the information submitted to
this government it seems to be not an unfair or unreasonable conclu-
sion that there is too much sympathy between the local authorities
and the native fishermen, and that there exists at the fishing stations
no adequate police force with authority, ability, and disposition to
check these outrages.
The condition of these people under the treaty is, undoubtedly,
hard. They are very poor and illiterate. They depend for what is,
at best, a very scanty subsistence upon the sale of bait to the United
States vessels employed in cod-fishing upon the banks. And the use
of their privilege of catching their own bait on the Newfoundland
shores, which the treaty secures to American fishermen, necessarily
deprives the native fishermen of this means of support.
PERIOD FROM 1871 TO 1905. 739
But it is to be assumed that these considerations were given their
due weight by the British Government when negotiating the treaty of
Washington, and it must not be forgotten that Newfoundland has
received a large sum from the United States Treasury in payment for
this privilege.
I refer to these facts merely as the indication of future troubles, for
if at any time the fishing vessels of the United States should resolve to
meet force with force the result of so untoward an occurrence would
be to raise issues equally unpleasant to both governments.
The time is approaching when the present treaty will expire, and in
the discussion of the common interests, wrhich must be anticipated,
this government is anxious that questions sufficiently grave in their
own nature should not be complicated with local and temporary
irritations.
It is desirable, therefore, that the imperial government should im-
press upon the provincial authorities their duty to maintain and en-
force the rights which the treaty has conferred within their jurisdic-
tion upon citizens of the United States, and especially that there
should be placed at the baiting stations and on the frequented por-
tions of the coast officials with sufficient authority to restrain these
outbreaks of violence.
You are instructed to bring this subject to the attention of Her
Britannic Majesty's Government in such manner as you may deem
most judicious. In doing so, you will take care that Her Britannic
Majesty's Government shall fully understand the friendly spirit in
which your representation is made, and that the desire of this gov-
ernment in making it is to prevent in the future those disturbances
which have done so much to render unsatisfactory the settlement
which it was hoped had been reached in the fishery provisions of the
treaty of Washington.
I am, &c., JAMES G. BLAINE.
Mr. Lowell to Lord Granville.
LEGATION OF THE UNITED STATES,
London, August 19, 1881.
My LORD: I am instructed by Mr. Blaine to ask the attention of
Her Majesty's Government to a subject of serious interest in con-
nection with the exercise, by the fishermen of the United States, of
their treaty privileges on the coast of Newfoundland.
In the examination of the Fortune Bay claims, in order to make a
proper distribution of the amount lately paid by Her Majesty's Gov-
ernment, the attention of the Government of the United States has
been forcibly drawn to the condition of affairs out of which those
claims arose. Among the more recent claims which had not been
submitted to Her Majesty's Government, but which are, of course,
included in the settlement, were several going to show the existence,
on the part of the native fishermen of Newfoundland, of a determined
opposition to the exercise of the treaty privileges by fishermen of the
United States. In one case a large and angry mob of these New-
foundland fishermen took possession of an American fishing vessel,
cut her anchor and set her sails for the avowed purpose of causing
her to drift on the rocks. And the universal testimony of our fisher-
740 CORRESPONDENCE, ETC.
men, including many who have made no formal complaint to the
government, is that they are absolutely forbidden, both by the show
and use of force, from taking bait on the coast of Newfoundland and
in other vicinities. It might be supposed that the recognition by Her
Majesty's Government of its responsibility for such lawless inter-
ference, and its having made reasonable compensation for losses con-
sequent upon them, would put a stop to further violence.
But the payment of even large damages by the Imperial Govern-
ment does not make itself felt upon the provincial population. And
from all the information submitted to the Government of the United
States, it seems to be not an unfair or unreasonable conclusion that
there is too much sympathy between the local authorities and the
native fishermen, and that there exists at the fishing stations no ade-
quate police force with authority, ability, and disposition to check
these outrages.
The condition of these people under the treaty is undoubtedly hard.
They are very poor and illiterate. They depend, for what is at best
a very scanty subsistence, upon the sale of bait to the United States
vessels employed in cod-fishing upon the banks ; and the use of their
privilege of catching their own bait on the Newfoundland shores,
which the treaty secures to American fishermen, necessarily deprives
the native fishermen of this means of support.
But it is to be assumed that these considerations were given their
due weight by the British Government when negotiating the treaty of
Washington, and it must not be forgotten that Newfoundland has
received a large sum from the United States Treasury in payment for
this privilege.
Mr. Blaine, in his dispatch on this subject, states that he refers to
these facts merely as they are indicative of future troubles, for if
at any time the fishing vessels of the United States should resolve to
meet force with force, the result of so untoward an occurrence would
be to raise issues equally unpleasant to both governments.
The time is approaching when the present treaty provisions will
expire, and in the discussion of the common interests which must be
anticipated my government is anxious that questions sufficiently
grave in their own nature should not be complicated with local and
temporary irritations.
It is believed by my government, therefore, that Her Majesty's
ministers will agree in thinking it desirable that the Imperial Gov-
ernment should impress upon the provincial authorities their duty
to maintain and enforce the rights which the treaty has conferred
within their jurisdiction upon citizens of the United States, and
especially that they should place at the baiting stations, and on the
frequented portions of the coast, officials with sufficient authority to
restrain these outbreaks of violence.
In bringing this subject to the attention of your lordship, I am
particularly instructed to take care that Her Majesty's Government
shall fully understand the friendly spirit in which my representation
is made, and that the desire of my government, in making it, is to
prevent in the future those disturbances which have done so much to
render unsatisfactory the settlement which it was hoped had been
reached in the treaty provisions of the treaty of Washington.
I have, &c., .
J. R. LOWELU
PERIOD FROM IS1?! TO 1905. 741
Lord Granmlle to Mr. Lowell.
FOREIGN OFFICE, August 89, 1881.
SIR: I have the honor to acknowledge the reception of the com-
munication which you were good enough to address to me on the 19th
instant, in which, by Mr. Elaine's direction, you invite the attention
of Her Majesty's Government to certain facts which tend to show, it
is alleged, a determination on the part of the native fishermen of New-
foundland to oppose the exercise by the fishermen of the United
States of the privileges secured to them by treaty on the coast of
Newfoundland.
In reply I beg leave to state that the friendly language in which
this representation from your government is couched is fully appre-
ciated by Her Majesty's Government, and I need not assure you that
it shall be considered by them with all the care demanded by the
importance of the interests concerned.
I have, &c., GRANVIIXE.
Lord Granmlle to Mr. Hoppin.
FOREIGN OFFICE, November 17, 1881.
SIR: Referring to the letter which I had the honor to address to
Mr. Lowell on the 29th of August last, I now beg leave to state to
you that Her Majesty's principal secretary of state has been in com-
munication with the government of Newfoundland in regard to the
observations which Mr. Lowell had been instructed to address to Her
Majesty's Government respecting the line of conduct which, it is
alleged, is adopted by the fishermen of the colony towards the fisher-
men of the United States, showing, as Mr. Lowell represents, the
existence of a determined opposition on their part to the exercise of
their treaty privileges by the American fishermen.
I have now the honor of stating to you that the attention of the
government of Newfoundland has been particularly directed by the
Earl of Kimberly to that portion of Mr. Lowell's letter of the 19th of
August, in which it is suggested that the authorities in the colony
should maintain and enforce the rights conferred within their juris-
diction upon citizens of the United States, and especially that they
should place at the baiting stations and on the frequented portions of
the coast, officials with sufficient authority to restrain outbreaks of
violence.
The government of Newfoundland, in reply, fully recognize the
importance of the subject to which their attention has thus been
directed, but they point out, with reference to the case of the Ameri-
can vessel which is cited by Mr. Lowell as having been taken pos-
session of by a large and angry mob, her anchor cut, and her sails set,
for the avowed purpose of drifting her upon the rocks, that it is some-
what remarkable that not only was no complaint made by the master
of this vessel to a magistrate, but that neither he nor his crew should
have mentioned the subject until he had returned to the United States
and the claims of other fishermen were being brought forward for
adjudication.
742 CORRESPONDENCE, ETC.
The government of Newfoundland regret that the good faith of the
local authorities should be called in question. It is not denied that
differences have arisen, and may again occur, between British and
United States fishermen when plying their calling in the same locality,
such differences not being infrequent even when fishermen of the
same nationality fish together. But they are not aware of any case
of dispute between British and American fishermen in which, on
complaint made, an investigation has not taken place and justice has
not been administered.
The colonial authorities at Saint John's have expressed a wish that
the attention of the Government of the United States should be called
to the demoralizing effects upon the people of Newfoundland, result-
ing from smuggling, and the sale by the United States fishermen of
various articles, including spirits to a considerable extent.
The police force of the country, they state, has been necessarily
increased, and even now is inadequate, not indeed for the preservation
of order amongst the native population, but for the prevention of
wanton destruction of property and other lawless acts committed by a
rough class of United States fishermen, who, after committing out-
rages, take refuge on board their vessels, leaving the unfortunate
sufferers without remedy.
In forwarding these observations, Her Majesty's Government have
no desire to raise a discussion with the Government of the United
States, on matters which it would be unreasonable to expect should
be entirely within their control. Her Majesty's Government cor-
dially reciprocate the friendly spirit in which their attention has been
invited by Mr. Elaine to the treaty privileges of the American fisher-
men, but they would point out that reports, from whomsoever re-
ceived, of irregularities of which no complaint is made at the time,
and on or from the spot, to the responsible authorities, must be ac-
cepted with some degree of caution. For their part, Her Majesty's
Government fully appreciate the desire expressed in Mr. Lowell's
letter, that every precaution should be taken to obviate the recurrence
of disputes on the fishing grounds of Newfoundland between the
British and American fishermen, and they trust that the measures
which have been adopted, and which will be supplemented, if neces-
sary, by further action; may fulfill the common wishes of the two
governments.
I have, &c., GRANVILLE.
BRITISH EMBASSY.
British Memorandum of May 3, 1882.
With reference to Correspondence which has passed between Her
Majesty's Legation and the State Department respecting the New-
foundland Fisheries question, it is sought to determine what Regula-
tions it would be expedient to enforce for the protection of the
fisheries, and to this end attention is sailed to the following Acts viz.
Cap : 102 consolidated Statutes Newfoundland,
38. Viet: Cap: 7
39 " " 6
40 " " 13
42 " " 2
PERIOD FROM 1871 TO 1905. 743
which Documents were appended to the message from President Hayes
to the House of Representatives. The United States Government is
invited to examine these Statutes, and to state whether they find in
them anything open to objection or have any suggestions to make
with regard to them.
Any Communication which the United States Government may
make upon this subject will receive careful consideration on the part
of Her Majesty, and when an agreement has been arrived at as to
the regulations which should govern the fisheries the Legislature of
Newfoundland will be invited to make the necessary changes in the
law if any such should be found to be necessary.
DEPARTMENT OF STATE,
May 9, 1882.
United States Memorandum.
Referring to the British Memorandum relating to the Newfound-
land Statutes restricting the fisheries, viz :
Cap. 102 Consolidated Statutes of Newfoundland.
38 Vic. cap. 7.
39 Vic. cap. 6.
40 Vic. cap. 13.
42 Vic. cap. 2.
the Government of the United States makes the following observa-
tions on these Acts :
Section 2 of cap. 102, which is as follows :
" No person shall at any time between the 20th day of December
" and the 1st day of April in any year, use any net to haul, catch
" or take herrings on or near the coasts of this colony or of its
*' dependencies, or in any bays, harbors or other places therein, hav-
" ing the mokes, meshes or scales of such net less than two inches
" and three eighths of an inch at least or having any false or double
" bottom of any description ; nor shall any person put any net,
" though of legal size mesh, upon or behind any other net not of
" such size mesh for the purpose of catching or taking such herring
" or herring fry passing a single net of legal size mesh."
and Section 4 of the same Act:
" No person shall between the 20th day of May and the 20th day
" October in any year, haul, catch or take herrings or other bait
" for exportation, within one mile measured by the shore or across
" the water of any settlement situate between Cape Chapeau Rouge
" and Point Enragee, near Cape Ray ; and any person so hauling,
" catching or taking, within the said limits, may be examined on
" oath by a justice, officer of customs or person commissioned for
" the purpose, as to whether the herrings or other bait are intended
" for exportation or otherwise, and on refusal to answer or answer-
" ing untruly, such person shall, on conviction, be subject to the
" provisions of the twelfth section of this chapter."
are both considered to be in their provisions restrictive of the rights,
guaranteed to American fishermen by the XVIII Article of the
Treaty of 1871, and the amendment to section 4, by the 39th Vic-
744 CORRESPONDENCE, ETC.
toria, cap. 6 which substitutes the tenth day of May for the twentieth
day of April while it modifies the hardship does not remove it.
Section 4 of the latter Act 39 Victoria, cap. 6 : " No person
" shall, between the hours of twelve o'clock on Saturday night and
" twelve o'clock on Sunday night, haul or take any herring, caplin
" or squids, with nets, seines, bunts, or any such contrivance or set
" or put out any such net, seine, bunt or contrivance for the purpose
" of such hauling or taking."
is in itself objectionable, and as amended by the 40th Victoria, cap.
13 which provides : " That the fourth section of the said recited
" Act shall be held to include and apply to " the jigging of squids,
" and to the use of any contrivance whatever, and to any mode of
" taking and obtaining fish for bait."
becomes if possible still more restrictive, and the 1st section of 42th
Victoria, cap. 2 is conceived by this Government to be clearly in
contravention of the right of American fishermen under the stipu-
lations of the Treaty. That section is in these words :
" No person shall haul, catch or take herrings by or in a seine
" or other such contrivance on or near any part of the coast of this
u colony or its dependencies or in any of the bays, harbors or
" other places therein, at any time between the twentieth day of
" October in any year and the eighteenth day of April in the fol-
" lowing year or at any time use a seine or other contrivance for
" the catching and taking of herrings, except by way of shooting
"and forthwith hauling the same:
" Provided, that nothing herein contained shall prevent the taking
" of herrings by nets set in the usual and customary manner, and not
" used for in barring or enclosing herrings in a cove, inlet or other
place."
It is true that by the 18th section of cap. 102 Consolidated Statutes
of Newfoundland which say that " Nothing in this chapter shall
" affect the rights and privileges granted by treaty to the subjects of
" any state or power in amity with Her Majesty." the intention of the
Legislature of Newfoundland to hold in due regard the rights of
American fishermen under the Treaty is manifested, but the com-
plaint of citizens of the U. S., engaged in the herring fisheries on the
coast of Newfoundland, is that this provision has been wholly dis-
regarded by the local ministerial and executive officers, and that while
the prohibitory provisions of the Consolidated Statutes were rigidly
enforced against American fishermen, the native fishermen were
allowed complete immunity in the constant violation of the statutes.
Section 5 of the 42nd Victoria cap. 2, provides a summary mode for
the execution of the statutes and the enforcement of penalties, namely :
"Any justice of the peace, sub-collector of customs, preventive offi-
" cer, fishery warden or constable, may board any vessels suspected of
" carrying herrings in bulk between the twentieth day of October in
" any year, and the eighteenth day of April in the following year.;
" and in case any such justice, sub-collector, preventive officer, fishery
" warden or constable shall make signal to any vessel suspected as
" aforesaid, from any vessel employed by the government, by dipping
" the ensign at the main peak three times and firing a gun, it shall be
" the duty of the owner, master or person managing or controlling
" such vessel so signalled, to heave to such vessel until such justice,
" sub-collector, preventive officer, fishery warden or constable, shall
PERIOD FROM 1871 TO 1905. 745
" have boarded and examined such last named vessel ; and in case of
*' such master, owner or person managing or controlling as aforesaid
" such last named vessel omitting so to heave her to, or to afford facili-
" ties for such justice, sub-collector, preventive officer, fishery warden
" or constable, boarding such vessel or obstructing such justice, sub-
" collector, preventive officer, fishery warden or constable, boarding
" or examining any such vessel, he shall be subject to a penalty of five
" hundred dollars, to be recovered wdth costs in a summary manner
" before a justice of the peace, and in case default shall be made in the
" payment of such penalty, such justice shall issue his warrant and
" cause such offender to be imprisoned for a period not exceeding
" thirty days."
Americans have been constantly subjected to the surveillance con-
templated by that section while Newfoundland fishermen have been
not only exempted from its provisions but have been called on by the
local officials to aid them in enforcing the statute against American
fishing vessels.
The views entertained by the Government of the U. S. on the sub-
ject were thus expressed to H. M.'s Government in 1878 by Mr. Evarts
who then said :
"This Government conceives that the fishery rights of the United
"States conceded by the Treaty of. Washington are to be exercised
" wholly free from the restraints and regulations of the statutes of
" Newfoundland, now set up as authority over our fishermen, and
" from every other regulation of fishing now in force or that may
" hereafter be enacted by that government."
The President adheres to the interpretation thus given to the
Treaty, and it is evident that so long as these several provisions re-
main on the statute books of Newfoundland and the disposition of
the local officers to discriminate against American fishermen in their
enforcement continues, the treaty rights become a nullity and the
American fishermen have no security in the pursuit of this great
industry.
If the Legislature of Newfoundland cannot dispense with these pro-
visions altogether then this Government conceives that an Act should
be passed by it expressly declaring that the provisions enumerated
shall have no application to citizens of the U. S. who are now or who
may hereafter be engaged in fishing in the waters of Newfoundland
under the stipulations of the Treaty of the 8th of May 1871, between
the United States and Great Britain.
Lord Granville to Sir L. S. West.
FOREIGN OFFICE,
July 15. 1882.
SIR,
I have to acknowledge the receipt of your despatch of the 9th
May last, transmitting a Memo drnwn up by the State Dep* of the
U. S. Gov1 upon certain Acts of the Legislature of Newfoundland
for the regulation of the fisheries in the waters of that Colony.
This Memo was communicated to you by Mr Frelinghuysen in
answer to the request of H. M's Gov1 to be favored with any sug-
746 CORRESPONDENCE, ETC.
gestions which the U. S. Gov* might be prepared to offer with a
view to the friendly consideration by the two Govts of such amend-
ments of the Fishery Regulations as might be reasonably called
for in the interests of both countries.
H. M's Gov1 regrets to find that the Memo contains no suggestion
of any kind tending to that object, but that it reopens a discussion
on the construction of the Treaty of Washington which it was
hoped had been exhausted in the previous correspondence.
The Memo cites the following extract from a dispatch written by
Mr Evarts in 1787, as representing the views of the U. S. Gov1: —
" This' Gov1 conceives that the fishery rights of the U. S. con-
" ceded by the Treaty of Washington are to be exercised wholly
" free from the restraints and regulations of the Statutes of New-
" foundland, now set up as authority over our fishermen, and from
" every other Regulation now in force, or that may hereafter be
" enacted by that Government."
H. M.'s Gov1 however, have never accepted that construction
of the Treaty and on this point I have nothing to add to the views
expressed in the Note which I had the honour to address to Mr
Lowell on the 27th of October 1880.
In that Note I used the following language : — •
" Without entering into lengthy discussion on this point, I feel
" bound to state that, in the opinion of H. M.'s Gov1, the clause in
*' the Treaty of Washington which provides that the citizens of
" the U. S. shall be entitled ' in common with British subjects,' to
" fish in Newfoundland waters within the limits of British Sov-
" ereignty, means that the American and the British fishermen shall
" fish in these waters upon terms of equality and not that there
" shall be an exemption of American fishermen from any reason-
" able regulations to which British fishermen are subject.
" H. M.'s Gov1 entirely concur in Mr Marcy's Circular of the 28th
" of March 1856. The principle therein laid down appears to them
" perfectly sound, and as applicable to the fishery provisions of the
" Treaty of Washington as to those of the Treaty which Mr Marcy
" had in view ; they cannot, therefore, admit the accuracy in Mr
" Evarts' letter to Mr Welsh of the 28th Sepf 1878, ' that the fishery
u ' rights of the U. S. conceded by the Treaty of Washington are
" ' to be exercised wholly free from the restraints and regulations
" ' of the Statutes of Newfoundland,' if by that opinion anj^thing
" inconsistent with Mr Marcy's principle is really intended. H. M.'s
" Gov1, however, fully admit that, if any such local statutes could be
" shewn to be inconsistent with the express stipulations, or even
" with the spirit of the Treaty, they would not be within the cate-
" gory of those reasonable regulations by which American (in com-
" mon with British) fishermen ought to be bound ; and they observe,
" on the other hand, with much satisfaction that Mr. Evarts, at the
" close of his letter to Mr Welsh of the 1st of August, 1879, after
" expressing regret at ' the conflict of interests which the exercise
" ' of the Treaty privileges enjoyed by the U. S. appears to have
" ' developed,' expressed himself as follows : —
"'There is no intention on the part of this (the U. S.) Gov1 that
" ' these privileges should be abused ; and no desire that their full and
" ' free enjojrment should harm the colonial fishermen.
PERIOD FKOM 1871 TO 1905. 747
"'While the differing interests and methods of the shore fishery
" ' and the vessel fishery make it impossible that the regulation of the
" ' one should be entirely given to the other, yet if the mutual obliga-
" ' tions of the Treaty of 1871 are to be maintained, the U. S. Gov1
" ' would gladly cooperate with the Gov1 of Her Britannic Majesty in
" ' any effort to make those regulations a matter of reciprocal con-
" ' venience and right, a means of preserving the fisheries at their
" ' highest point of production, and of conciliating a community of
" ' interest by a just proportion of advantages and profits.' ?:
I expressed the satisfaction with which H. M.'s Gov1 not only rec-
ognized in Mr Evarts' proposal above referred to, an indication that
their desire to arrive at a friendly and speedy settlement of the con-
troversy was fully reciprocated by the Gov1 of the U. S., but also
discerned in it the basis of a practical solution of the difficulty ; and I
assured Mr Lowell of the readiness of H. M.'s Gov1 to confer with the
Gov* of the U. S. respecting the establishment of regulations under
which the subjects of both parties to the Treaty of Washington should
have the full and equal enjoyment of any fishery which, under the
Treaty is to be used in common.
The Memo of the U. S. Gov1 after reviewing certain provisions of
the Newfoundland Acts, complains of partiality in their enforcement
by the Magistrates and other officials of the Colony (a complaint
which H. M.'s Gov* cannot admit to be well founded, and in support
of which no facts are adduced) and concludes with a suggestion that
if the Legislature of Newfoundland cannot dispense with those pro-
visions altogether, it should pass an act expressly declaring that they
shall have no application to the citizens of the U. S.
I can only renew the expression of the regret and disappointment
which is felt by H. M.'s Gov1 at the apparent disinclination on the
part of the Gov1 of the U. S. to carry out Mr Evarts' proposal ; and I
have to instruct you to read this dispatch to Mr Frelinghuysen, and to
leave a copy of it with him should he desire it, conveying to him at
the same time the hope of H. M.'s Gov* that, upon further considera-
tion, the Gov1 of the U. S. will agree to let the disputed question of
Treaty rights remain in abeyance, and will unite with H. M.'s Gov*
in carrying out the revision of the fishery regulations in the spirit and
with the object indicated by Mr Evarts..
I am &c sd GRANVILLE
The Hon.,
LIONEL S. SACKVILLE WEST,
etc. etc. etc.
Mr. Frelinghuysen to Mr. Lowell.
No. 564.] DEPARTMENT OF STATE,
Washington, April 5, 1883.
SIR: I inclose herewith a copy of a joint resolution providing for
the termination of certain articles of the treaty between the United
States of America and Her Britannic Majesty, concluded at Wash-
ington May 8, 1871, which articles under the protocol signed June 7,
748 CORRESPONDENCE, ETC.
1873, took effect on the 1st day of July, 1873, and, by the terms of
the original treaty, are subject to termination by either party on two
years' notice given at the expiration of ten years from July 1, 1873.
This resolution, which was approved March 3, 1883, directs the Presi-
dent to give notice to the Government of Her Britannic Majesty that
the provisions of each and every of the articles No. 18 to No. 25, in-
clusive, and of Article XXX of the treaty of May 8, 1871, will ter-
minate and be of no force on the expiration of two years next after
the time of giving such notice, which the President is further directed
to give on the 1st day of July, 1883, or as soon thereafter as may be.
You are therefore instructed to comply with the directions of Con-
gress in this matter, as set forth in the resolution, by giving the notice
required. As the 1st day of July falls on Sunday, you will give the
notice on the next succeeding day, informing the minister of foreign
affairs on the receipt of this instruction of its purport and of your
contemplated action.
I am, etc., FRED'K T. FRELINGHUYSEN.
Mr. Lowell to Mr. Frelinghuysen.
No. 563.] LEGATION OF THE UNITED STATES,
London, June 6, 1883. (Received June 19.)
SIR : Referring to your instruction No. 564, of the 5th day of April,
1883, I have to acquaint you that on the 18th day of April last, the
day of the arrival of the instruction, I addressed a note to Lord Gran-
ville in compliance with its terms, informing him of the action I
should take on the 2d of July next in obedience to a resolution of
both houses of Congress of the United States, in giving notice of the
termination of Articles XVIII to XXV, inclusive, and Article XXX
of the treaty of May 8, 1871, between the United States and Great
Britain ; and that on the 28th of April last I received a reply from
his lordship, acknowledging the reception of my note.
I beg to inclose herewith a copy of this correspondence.
I have, &c.,
J. R. LOWELL.
[Inclosure No. 1.]
Mr. Lowell to Lord Granville.
LEGATION or THE UNITED STATES,
London, April 18, 1883.
MY LORD : I have received to-day, from Mr. Frelinghuysen, a dis-
patch inclosing the copy of a joint resolution of both houses of Con-
gress of the United States, providing for the termination of certain
articles of the treaty between the United States of America and Her
Britannic Majesty, concluded at Washington, May 8, 1871, which
articles, under the protocol signed June 7, 1873, took effect on the 1st
day of July, 1873, and, by the terms of the original treaty, are sub-
ject to termination by either party on two years* notice, given at the
expiration of ten years from July 1, 1873. This resolution, which was
approved March 3, 1883, directs the President to give notice to the
PERIOD FROM 1871 TO 1905. 749
Government of Her Britannic Majesty that the provisions of each
and every of the articles numbered 18 to 25, inclusive, and of
Article XXX of the treaty May 8, 1871, will terminate and be of
no force on the expiration of two years next of after the time of giv-
ing such notice, which the President is further directed to give on the
1st day of July, 1883, or as soon thereafter as may be.
I am therefore instructed to comply with the directions of Con-
gress in this matter, as set forth in the resolution, by giving the notice
required ; and, as the 1st day of July falls on Sunday, I am directed
to give this notice on the next succeeding day. I beg, also, in com-
pliance with further directions, to inform your lordship of the pur-
port of this instruction, and of my contemplated action under it.
I have, &c.,
J. R. LOWELL.
[Inclosure No. 2.]
Lord Granville to Mr. Lowell.
FOREIGN OFFICE, April 87, 1883.
SIR : I have the honor to acknowledge the receipt of your note of
the 18th instant, in which you acquaint me that, in compliance with
the instructions you have received from your Government, you pro-
pose to give notice on Monday, the 2d of July (the 1st July falling
on a Sunday), of the intention of the United States to terminate
Articles XVIII to XXV, inclusive, and Article XXX of the treaty
of the 8th May, 1871, between Great Britain and the United States,
which will cease to be in force on the expiration of two years from
the date of such notice being given.
I have, &c. GRANVILLE.
Mr. Lowell to Lord Granville.
LEGATION OF THE UNITED STATES,
London, July 8, 1883.
MY LORD: Referring to my note to your lordship of the 18th of
April last, and to your lordship's reply of the 27th of the same
month, I have the honor to recapitulate the statements I made in
that note to the following effect: That I received on the said 18th
of April a dispatch from Mr. Frelinghuysen, inclosing a copy of a
joint resolution of both houses of Congress of the United States,
providing for the termination of certain articles of the treaty be-
tween the United States of America and Her Britannic Majesty,
concluded at Washington, May 8, 1871, which articles, under the
protocol signed June 7, 1873, took effect on the 1st day of July, 1873,
and by the terms of the original treaty, are subject to termination
by either party on two years' notice, given at the expiration of ten
years from July 1, 1873. This resolution, which was approved
March 3, 1883, directs the President to give notice to the Government
of Her Britannic Majesty that the provisions of each and every of
the articles numbered XVIII to XXV, inclusive, and of Article
XXX of the treaty of May 8, 1871, will terminate and be of no force
on the expiration of two years next after the time of giving such
750 CORRESPONDENCE, ETC.
notice, which the President is further directed to give on the 1st day
of July, 1883, or as soon thereafter as may be.
I am, therefore, instructed by the President of the United States
to comply with the directions of Congress in this matter as set forth
in the resolution, by giving the notice required ; and as the 1st day of
July falls on Sunday, I am further instructed to give this notice on
the succeeding day.
I do, therefore, this 2d day of July, in the year 1883, on behalf of
the President of the United States, hereby give notice to the Govern-
ment of Her Britannic Majesty that the provisions of each and every
of the articles numbered XVIII, XIX, XX, XXI, XXII, XXIII,
XXIV, XXV, and XXX of the treaty of May 8, 1871, between
the United States of America and Her Britannic Majesty, will termi-
nate and be of no force on the expiration of two years next after
the time of giving notice.
I have, &c. J. K. LOWELL.
Lord Granmlle to Mr. Lowell.
FOREIGN OFFICE, August 00, 1883.
SIR: I have the honor to acknowledge the receipt of your note of
the 2d ultimo, in which you give notice that the provisions of Articles
XVIII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, and XXX
of the treaty of May 8, 1871, between Great Britain and the United
States, will terminate and be of no force on the expiration of two
years next after the date of the said notice.
In accepting this notice on behalf of Her Majesty's Government,
I have the honor to inquire wThether Her Majesty's Government cor-
rectly understand the intention of the United States Government to
be that the provisions of Article XXXII, which relate to Newfound-
land, shall cease to be in force and operation at the same time as the
articles recited in the notice, which relate to the Dominion of Canada.
I have, &c.
GRANVILLE.
Mr. Lowell to Lord Granmlle.
LEGATION or THE UNITED STATES,
London, August 23, 1883.
MY LORD: I have the honor to acknowledge the reception of your
lordship's note of yesterday, in which you inquire whether in accept-
ing the notice which I have given to Her Majesty's Government,
under the instructions of the Department of State, that the pro-
visions of Articles XVIII, XIX, XX, XXI, XXII, XXIII, XXIV,
XXV, and XXX of the treaty of May 8, 1871, between the United
States and Great Britain, will terminate and be of no force on the
expiration of two years next after the date of said notice. Her
Majesty's Government correctly understands the intention of the
United States Government to be, that the provisions of Article
XXXII which relate to Newfoundland shall cease to be in force and
operation at the same time as the articles recited in the notice which
relate to the Dominion of Canada.
PERIOD FROM 1871 TO 1905. 751
I beg to state, in reply, that I have transmitted your lordship's
inquiry to the Department of State, and shall have the honor of
addressing your lordship another communication on the subject as
soon as I receive an answer.
I have, &c. J. E. LOWELL.
Mr. West to Mr. FrelingJiuysen.
BRITISH EMBASSY,
Washington, 9 October 1883.
SIR : Referring to a communication from Earl Granville conveyed
to me in a despatch copy of which I had the honor to place in your
hands on the 3rd of August0 of last year respecting the revision of
the Fishery regulations, I have the honor to inform you that His
Lordship has requested me again to bring this matter before the
United States Government.
Although notice has been given by the United States Government
of their intention to terminate the fishery Articles of the Treaty of
Washington in two years time from the 1st of July last no further
communication has been as yet received by Her Majesty's Government
relative to the proposed revision of the regulations for the protection
of the fisheries in Newfoundland waters, and Her Majesty's Govern-
ment are anxious that in the interval no cause of difference should
arise between the fishermen of Newfoundland and those of the United
States who may resort to those waters.
They would be glad therefore, to know the views of the Government
of the United States on the proposed revision. At the same tune Her
Majesty's Government hope that in the interval before the termina-
tion of the Fishery Articles in question, the Government of the
United States will agree to let the disputed question of Treaty rights
remain in abeyance and will unite with Her Majesty's Government in
carrying out the revision of the Fishery regulations in the spirit and
with the object indicated by Mr. Evarts in his letter to Mr. Welsh of
the 1st of August, 1879, in which it is said that " there is no intention
" on the part of the United States Government that privileges should
" be abused and no desire that their full and free enjoyment should
" harm the Colonial fishermen. While the different interests and
" methods of the shore fishery and the vessel fishery make it impos-
" sible that the regulation of the one should be entirely given to the
" other, yet if the mutual obligations of the Treaty of 1871 are to be
" maintained, the United States Government would gladly co-operate
" with the Government of Her Britannic Majesty in any effort to
" make those regulations a matter of reciprocal convenience and right,
" a means of preserving the Fisheries at their highest point of pro-
" duction and of conciliating a community of interest by a just
" proportion of advantages and profits."
In expressing therefore the hope on the part of Her Majesty's
Government that this matter may receive the early consideration of
<* See Granville to West, July 15, 1882, ante, p. 745.
752 CORRESPONDENCE, ETC.
the Government of the United States I have the honor to be with the
highest consideration
Sir, your obedient servant,
L. S. SACKVILLE WEST.
Mr. Lowell to Mr. Frelinghuysen.
No. 693.] LEGATION or THE UNITED STATES,
London, January 17, 1884. (Received February 2.)
SIR: Referring to your instruction No. 688, of October 16, 1883,
I have the honor to inclose a copy of the correspondence, since the
reception of that dispatch, between this legation and the foreign
office, in reference to the termination of certain articles of the treaty
of May 8, 1871.
It will be seen by Lord Granville's note that Her Majesty's Gov-
ernment accept the notice of the termination of these articles of the
treaty as applying to Newfoundland as well as to the Dominion of
Canada.
I have, &c. J. R. LOWELL.
[Inclosure No. 1.]
Mr. Lowell to Lord Granville.
LEGATION OF THE UNITED STATES,
London. November 16, 1883.
MY LORD : Referring to your lordship's note of the 22d of August
last, in which your lordship inquired whether, in accepting the notice
which I gave to Her Majesty's Government, on the 2d of July last,
that the provisions of articles 18, 19, 20, 21. 22, 23, 24, 25, and 30 of
the treaty of May 8, 1871, between the United States and Great
Britain, will terminate and be of no force on the expiration of two
years from the date of said notice, Her Majesty's Government cor-
rectly understand the intention of the United States Government to
be that the provisions of article 32, which relate to Newfoundland,
shall cease to be in force and operation at the same time as the articles
recited in the notice which relate to the Dominion of Canada, I
have the honor to acquaint you that I lost no time in transmitting
a copy of your lordship's note to the Department of State.
I have now received a reply from Mr. Frelinghuysen, in which I
am instructed to inform your lordship that Her Majesty's Govern-
ment correctly understand the intention of the Government of the
United States to be that the provisions of article 32 of the treaty of
Washington, which relate to Newfoundland, shall cease to be in force
and operation at the same time as the articles recited in the notice of
the termination given by me on the 2d of July last which relate to the
Dominion of Canada.
Mr. Frelinghuysen states that your lordship's inquiry does not
appear to invite any discussion of the points involved, or to ask any-
thing more than a simple declaration of the intention of the United
States Government as to the scope of the notice of the termination
so given. He states, however, for my information, the reasons why
the thirty-second article must be considered as in force so long as
PERIOD FBOM 1871 TO 1905. 753
the other articles which are specifically terminable are in force. As
his views on this subject may be interesting to your lordship., I ven-
ture to send you a copy of his dispatch, although I have no instruc-
tion to do so.
I have. £c. J. R. LOWELL.
[Inclosure No. 2.]
Lord Granville to Mr. Lowell.
FOREIGN OFFICE, January 16, 1884*
SIR : I have the honor to acknowledge the receipt of your note of
the 16th of November last, in which you state that it is the intention
of the Government of the United States that the provisions of article
32 of the treaty of Washington, which relate to Newfoundland shall
cease to be in force and operation at the same time as the articles
recited in the notice of termination given by you on the 2d of July
last which relate to the Dominion of Canada.
I have to state to you, in reply, that Her Majesty's Government
accept this notice as applying to Newfoundland as well as to the
Dominion of Canada.
I have, &c., GRANVILLE.
Mr. Frelinghuyscn to Mr. West.
DEPARTMENT OF STATE,
Washington, July 11, 1884'
SIR : Referring to your note of the 9th of October last, concerning
the revision of the fishery treaty, and adverting to the language of
the President's last annual message to Congress relative to appointing
a Commission to consider the subject, I now have the honor to inform
you that Congress has adjourned without reaching any action on the
President's recommendation. In such an important international
question, in which Congress has intervened at every stage hitherto, it
is deemed best to defer definite action on the British proposal until
December.
I have, &c., FRED'K. T. FRELINGHUYSEN.
Mr. West to Mr. Frelinghuysen.
WASHINGTON, July 1%, 1884.
(Received July 14.)
SIR: I have the honor to acknowledge the receipt of your note of
the llth instant, and to inform you that I have duly notified to Her
Majesty's Government that it is deemed best not to take any definite
action with regard to the fisheries articles of the treaty of Washing-
ton until December next.
I have, &c. L. S. SACKVILLE-WEST.
92909°— fc. Doc. 870, tjl-3, voi 3 y
754 CORRESPONDENCE, ETC.
Lord Lansdowne to Earl GranviUe.
OTTAWA, 3rd March, 1886.
MY LORD: With reference to my despatch of the 18th ultimo in
which I pointed out that effectual measures would be taken by my
Government to protect Canadian fishermen in the exercise of their
rights within the territorial waters of the Dominion, and to prevent
trespass within the limits of those waters by foreign fishermen, I
have to acquaint Your Lordship that authority has now been re-
quested by my Minister of Marine and Fisheries to establish a suffi-
cient marine police force for the purpose of affording efficient pro-
tection to the interests of the Dominion within its territorial waters.
2. With this object my Government have determined, besides
making use of the Government steamers already available for that
purpose, to charter and equip six swift sailing fore and aft schooners
between 60 and 90 tons measurement, for use as fisheries police
vessels. For this purpose, $50,000 will be placed in the supple-
mentary estimates to oe submitted to Parliament for the current
fiscal year, and a further sum of $100,000 for the fiscal vear ending
30th June, 1887.
I have, &c.,
(Sd.) LANSDOWNE.
Earl GRANVILLE.
The Earl of Rosebery to Sir L. West.
FOREIGN OFFICE, March 18, 1886.
SIR, From the reports which have been received in this country
Her Majesty's Government conclude that the Government of the
United States will not propose the appointment of an International
Commission to settle the North American Fisheries question, as con-
templated in the temporary arrangement concluded last summer.
Whilst Her Majesty's Government regret that they will thus be
deprived of a favourable opportunity for the settlement of this long-
standing question on equitable terms, they desire by every means in
their power to avoid any friction which might be caused by the cessa-
tion of the privileges lately enjoyed by United States' fishermen.
I have therefore to request that you will sound Mr. Bayard as to
whether the United States' Government propose to issue a Notice
warning United States' fishermen that they are now precluded from
fishing in British North American territorial waters, as Her Majesty's
Government are now considering the propriety of issuing a similar
Notice with regard to British fishermen in United States' waters.
I have instructed you in this sense by telegraph to day.
I am, &c.
ROSEBERY.
Sir L. WEST.
PERIOD FROM 1871 TO 1905. 755
Sir L. West to Mr. Bayard.
•
WASHINGTON, March 19, 1886.
(Received March 20.)
SIR : I have the honor to inform you that the Earl of Rosebery has
requested me to ascertain whether it is intended to give notice to the
United States fishermen that they are now precluded from fishing in
British North American territorial waters, as Her Majesty's Govern-
ment are considering the expediency of issuing a reciprocal notice
with regard to British fishermen in American waters.
I have, &c.,
L. S. SACKVILLE WEST.
Mr. Bayard to Sir L. West.
DEPARTMENT OF STATE,
Washington, March 23, 1886.
SIR: I have the honor to acknowledge the receipt of your note of
the 19th instant, whereby you inform me that you have been requested
by the Earl of Rosebery to ascertain " whether it is intended to give
notice to the United States fishermen that they are now precluded
from fishing in British North American territorial waters," and to
inform you, in reply, that as full and formal public notification in
the premises has already been given by the President's proclamation
of 31st January, 1885, it is not now deemed necessary to repeat it.
The temporary arrangement made between us on the 22d of June,
1885, whereby certain fishing operations on the respective coasts were
not to be interfered with during the fishing season of 1885, notwith-
standing the abrogation of the fishery articles of the treaty of Wash-
ington, came to an end under its own expressed limitation on the 31st
of December last, and the fisheries question is now understood to rest
on existing treaties, precisely as though no fishery articles had been
incorporated in the treaty of Washington.
In view of the enduring nature and important extent of the rights
secured to American fishermen in British North American territorial
waters under the provisions of the treaty of 1818, to take fish within
the three-mile limit on certain defined parts of the British North
American coasts, and to dry and cure fish there under certain condi-
tions, this Government has not found it necessary to give to United
States fishermen any notification that " they are now precluded from
fishing in British North American territorial waters."
I have, &c.,
T. F. BAYARD.
Sir L. West to Mr. Bayard.
BRITISH LEGATION,
Washington, March $4., 1886. (Received March 25.)
SIR: I have the honor to acknowledge the receipt of your note of
the 23d instant, in reply to mine of the 19th, informing me that, as
full and formal public notification in the premises has already been
756 CORRESPONDENCE, ETC.
given by the President's proclamation of the 31st January, 1885, it
has not been found necessary to give to United States fishermen any
further notification that they are now precluded from fishing in
British North American territorial waters. I have duly informed
Her Majesty's Government and the Government of the Dominion of
this decision.
I have, &c.,
L. S. SACKVILLE WEST.
Lord Lansdowne to Earl Gnmvitte.
OTTAWA, 25th March, 1886.
MY LORD: I have the honour to forward for your information a
copy of the instructions which have been issued by my Minister of
Marine and Fisheries for the guidance of fishery officers and ex-ojjicio
magistrates in command of the vessels which will be employed for
the protection of the inshore fisheries of the Dominion.
These instructions are substantially the same as those which were
issued under similar circumstances in 1870.
Your Lordship will observe that while the officers in command of
the fisheries police vessels are required to take the necessary steps
for strictly upholding the Treaty rights of the Dominion they are
specially enjoined to carry out their instructions in a conciliatory
spirit and with forbearance and discrimination.
I also enclose copy of a warning notice which was published in
reference to the same subject by the Department of Fisheries.
I have, &c.,
(Sd.) LANSDOWNE.
The Right Honorable,
EARL GRANVILLE, K. G., &c.
[Enclosure No. 1.^
Special instructions to Fishery Officers, ex-officio Magistrates, in com-
mand of Government Steamers and Vessels, engaged as Fisheries
Police Vessels, in protecting the Inshore Fisheries of Canada.
OTTAWA, 16th March, 1886.
SIR: In the performance of the special and important service to
which you have been appointed you will be guided by the follow-
ing confidential instructions.
For convenience of reference, these have been divided under the
different headings of Powers, Jurisdiction, Duties and General Direc-
tions.
POWERS.
The Powers with which you are invested, are derived from, and
to be exercised in accordance with the following statutes, among
others:— "The Fisheries Act" (31 Vic., cap. 60, of Canada); "An
Act respecting Fishing by Foreign Vessels," (31 Vic., cap. 61, of
Canada), and the subsequent statute entitled: "An Act to amend
the Act respecting Fishing by Foreign Vessels," made and passed
PERIOD PROM 1871 TO 1905. 757
the 12th May, 1870 (33 Vic., cap. 15, of Canada); also an "Act to
further amend the said Act" (34 Vic., cap. 23, of Canada).
"Chapter 94 of the Kevised Statutes (third series) of Nova Scotia"
(of the "Coast and Deep Sea Fisheries"), amended bv the Act
entitled: "An Act to amend Cap. 94 of the Revised Statutes of Nova
Scotia." (29 Vic., cap. 35.)
An Act passed by the Legislature of the Province of New Bruns-
wick entitled: "An Act relating to the Coast Fisheries, and for the
prevention of Illicit Trade" (16 Vic., cap. 69).
Also an Act passed by the Legislature of Prince Edward Island
(6 Vic., cap. 14) entitled: "An Act relating to the Fisheries, and
for the prevention of Illicit Trade in Prince Edward Island, and the
coasts and harbors thereof."
Also, from such regulations as have been passed or may be passed
by the Governor General in Council, or from instructions from the
Department of Fisheries, under "The Fisheries Act," hereinbefore
cited.
As Fishery Officer you have full authority to compel the observ
ance of the requirements of the Fisheries Acts and regulations by
foreign fishing vessels and fishermen in those parts of the coasts of
Canada to which, by the Convention of 1818, they are admitted to
privileges of taking or drying and curing fish concurrent with those
enjoyed by British fishing vessels and fishermen.
You will receive instructions from the Customs Department
authorizing you to act as an officer of the Customs, and in that
capacity you are to see that the Revenue Laws and Regulations are
duly observed.
JURISDICTION.
Your jurisdiction with respect to any action you may take against
foreign fishing vessels and citizens engaged in fishing is to be exer-
cised only within the limits of "three marine miles" of any of "the
coasts, bays, creeks or harbours," of Canada.
With regard to the Magdalen Islands, although the liberty to
land and to dry and cure fish there is not expressly given by the
terms of the convention to United States fishermen, it is not at pres-
ent intended to exclude them from these islands.
DUTIES.
It will be your duty to protect the inshore fisheries of Canada in
accordance with the conditions laid down by the Convention of the
20th October, 1818, the first Article of which provides:
"Whereas differences have arisen respecting the liberty claimed
by the United States, for the inhabitants thereof to take, dry, and
cure fish, on certain coasts, bays, harbours, and creeks, of His Britan-
nic Majesty's dominions in America, it is agreed between the High
Contracting Parties, that the inhabitants of the said United States
shall have, forever, in common with the subjects of his Britannic
Majesty, the liberty to take fish of every kind, on that part of
the Southern Coast of Newfoundland, which extends from Cape
Ray to the Rameau Islands, on the Western and Northern Coast
of Newfoundland, from the said Cape Ray to the Quirpon Islands,
on the shores of the Magdalen Islands, and also on the coasts, bays,
758 CORRESPONDENCE, ETC.
harbours and creeks from Mount Joly, on the Southern Coast of
Labrador, to and through the Straits of Belle Isle, and thence north-
wardly indefinitely along the coast, without prejudice, however, to
any of the exclusive rights of the Hudson's Bay Company; and that
the American fishermen shall also have liberty, forever, to dry and
cure fish in any of the unsettled bays, harbours and creeks of the
Southern part of the Coast of Newfoundland, hereabove described,
and of the Coast of Labrador; but so soon as the same, or any por-
tion thereof, shall be settled, it shall not be lawful for the said fish-
ermen to dry or cure fish at such portion so settled, without previous
agreement for such purpose with the inhabitants, proprietors, or
possessors of the ground."
"And the United States hereby renounce forever any liberty
heretofore enjoyed or claimed by the inhabitants thereof, to take,
dry, or cure fish on or within three marine miles of any of the coasts,
bays, creeks or harbours of His Britannic Majesty's dominions in
America, not included within the above-mentioned limits; provided,
however, that the American fishermen shall be admitted to enter
such bays or harbours for the purpose of shelter and repairing of
damages therein, of purchasing wood and of obtaining water, and
for no other purpose whatever. But they shall be under such
restrictions as may be necessary to prevent their taking, drying,
or curing fish therein, or in any other manner whatever abusing the
privileges hereby reserved to them."
By this you will observe, United States fishermen are secured
the liberty of taking fish on the Southern Coasts of Labrador, and
around the Magdalen Islands and of drying and curing fish along
certain of the Southern Shores of Labrador, where this coast is
unsettled, or if settled, after previous agreement with the settlers
or owners of the ground.
In all other parts the exclusion of foreign vessels and boats is
absolute, so far as fishing is concerned, and is to be enforced within
the limits laid down by the Convention of 1818, they being allowed
to enter bays and harbours for four purposes only, viz., — -for shelter,
the repairing of damages, the purchasing of wood, and to obtain water.
You are to compel, if necessary, the maintenance of peace and
good order \>j foreign fishermen pursuing their calling and enjoying
concurrent privileges of fishing or. curing fish with British fishermen,
in those parts to which they are admitted by the Treaty of 1818.
You are to see that they obey the laws of the country, that they
do not molest British fishermen in the pursuit of their calling and
that they observe the regulations of the fishery laws in every respect.
You are to prevent foreign fishing vessels and boats which enter
bays and harbors for the four legal purposes above mentioned,
from taking advantage thereof, to take, dry or cure fish therein,
to purchase bait, ice, or supplies, or to tranship cargoes, or from
transacting any business in connection with their fishing operations.
It is not desired that you should put a narrow construction on
the term " unsettled." Places containing a few isolated houses might
not, in some instances, be susceptible of being considered as "set-
tled" within the meaning and purpose of the Convention. Some-
thing would, however, depend upon the facts of the situation and
circumstances of the settlement. Private and proprietary rights
form an element in the consideration of this point. The generally
conciliatory spint in which it is desirable that you should cam/ out
PERIOD FROM 1871 TO 1905. 759
these instructions, and the wish of Her Majesty's Government that the
rights of exclusion should not be strained, must influence you in making
as fair and liberal an application of the term as shall consist with the
just claims of all parties.
Should interference with the pursuits of British fishermen or the
property of Canadians appear to be inseparable from the exercise
of such indulgence, you will withhold it and insist upon entire
exclusion.
United States fishermen should be made aware that, in addition
to being obliged, in common with those subjects of Her Majesty
with whom they exercise concurrent privileges of fishing in Colonial
waters, to obey the laws of the country, and particularly such Acts
and Regulations as exist to ensure the peaceable and profitable
enjoyment of the fisheries by all persons entitled thereto, they are
peculiarly bound to preserve peace and order in the quasi-settled
places to which, by the liberal disposition of Canadian authorities,
they may be admitted.
Wheresoever foreigners may fish in Canadian waters, you will
compel them to observe the Fishery Laws. Particular attention
should be directed to the injury which results from cleaning fish
on board their vessels while afloat, and the throwing overboard of
offals, thus fouling the fishing, feeding and breeding grounds. "The
Fisheries Act" (Section 14) provides a heavy penalty for this offence.
Take occasion to enquire into and report upon any modes of
fishing, or any practices adopted by foreign fishermen, which appear
to be injurious to the fisheries.
GENERAL DIRECTIONS.
You will accost every foreign fishing vessel within the limits
described, and if that vessel should be either fishing, preparing to
fish, or should obviously have been fishing within the prohibited
limits, you will by virtue of the authority conferred upon you by
your Commission, and under the provisions of the Acts above
recited, seize at once (resort to force in doing so being only justifiable
after every other effort has failed) any vessel detected in violating
the law and send her or take her into port for condemnation.
Copies of the Acts of Parliament subjecting to seizure and for-
feiture any foreign ship, vessel or boat which should be either fishing,
preparing to fish or should obviously have been fishing within the
prohibited limits, and providing for carrying out the seizure and
forfeiture are furnished herewith for your information and
distribution.
Should you have the occasion to compel any foreign fishing
vessels or fishermen to conform to the requirements of the "Fish-
eries Act and regulations," as regards the modes and incidents of
fishing, at those places to which they are admitted under the Con-
vention of 1818, particularly in relation to ballast, fish offals, setting
of nets, hauling of seines, and use of "trawls" or "bultows" more
especially at and around the Magdalen Island, your power and author-
ity under such cases will be similar to that of any other fishery officer
appointed to enforce the Fishery Laws in Canadian waters. (Vide
Fisheries Act.)
If a foreign ship, vessel, or boat be found violating the Convention
or resisting consequent seizure, and momentarily effects her escape
760 CORRESPONDENCE, ETC.
from the vicinity of her capture or elsewhere, she remains always
liable to seizure and detention if met by yourself in Canadian waters,
and in British waters everywhere if brought to account by Her
Majesty's cruisers. But great care must be taken to make certain
of the identity of any offending vessel to be so dealt with.
All vessels seized must be placed, as soon as possible, in the cus-
tody of the nearest Customs Collector, and information, with a
statement of the facts, and the depositions of your sailing piaster,
clerk, lieutenant, or mate, and of two at least of the most reliable of
your crew be despatched with all possible diligence to the Govern-
ment. Be careful to describe the exact locality where the violation
of the law took place, and the ship, vessel, or boat was seized. Also
corroborate the bearings taken, by soundings, and by buoying the
place (if possible) with a view to actual measurements, and make
such incidental reference to conspicuous points and land marks as
shall place beyond doubt the illegal position of the seized ship,
vessel or boat.
Omit no precaution to establish on the spot that the trespass was
or is being committed within three miles of land.
As it is possible that foreign fishing craft may be driven into Cana-
dian waters by violent or contrary winds, by strong tides, through
misadventure, or some other cause independent of the will of the
master and crew, you will consider these circumstances, and satisfy
yourself with regard thereto before taking the extreme step of seizing
or detaining any vessel.
On capture, it will be desirable to take part of the foreign crew
aboard the vessel under your command, and place some of your own
crew, as a measure of precaution on board the seized vessel ; first low-
ering the foreign flag borne at the tune of capture. If your ordi-
nary complement of men does not admit of this being done, or if
because or several seizures the number of your hands might be too
much reduced, you will in such emergency endeavor to engage a few
trustworthy men. The portion of foreign crew taken on board the
Government vessel you will land at the nearest place where a Consul
of the United States is situated, or where the readiest conveyance to
any American Consulate in Canada may be reached, and leave them
there.
When any of Her Majesty's vessels about the fishing stations or in
port are met with, you should, if circumstances permit, go on board
and confer with the Naval Commander, and receive any suggestions
he may feel disposed to give, which do not conflict with these instruc-
tions, and afford him any information you may possess about the
movements of foreign craft; also inform him what vessels you have
accosted and where.
Do not fail to make a full entry of all circumstances connected with
foreign fishing vessels, noting their names, tonnage, ownership, crew,
port, place or fishing, cargo, voyage, and destination, and (if ascer-
tainable) their catch. Report your proceedings as often as possible,
and keep the Department fully advised on every opportunity, where
instructions would most probably reach you at stated intervals.
Directions as to the stations and limits on which you are to cruise,
and any further instructions that may be deemed necessary, will from
time to time be conveyed to you.
PERIOD FROM 1871 TO 1905. 761
Considerable inconvenience is caused by Canadian fishing vessels
neglecting to show their colours. You will draw the attention of
masters to this fact, and request them to hoist their colours without
requiring to be hailed and boarded.
It cannot be too strongly urged upon you, nor can you too earnestly
impress upon the officers and crew under your command, that the
service in which you and they are engaged should be performed with
forbearance and discrimination.
The Government relies on your prudence, discretion and firmness in
the performance of the special duties entrusted to you.
I am, Sir,
Your obedient servant,
(Sd.) GEORGE E. FOSTER,
Minister of Marine and Fisheries.
[Enclosure No. 2.]
Warning. — To all whom it may concern.
•
The Government of the United States having by notice terminated
Articles 18 to 25, both inclusive, and Article 30, known as the Fishery
Articles, of the Washington Treaty, attention is called to the following
provision of the Convention between the United States and Great
Britain, signed at London on the 20th October, 1818:
Article 1st. "Whereas differences have arisen respecting the liberty
"claimed by the United States, for the inhabitants thereof, to take,
"dry and cure fish, on certain coasts, bays, harbours and creeks, of
"His Britannic Majesty's dominions in America, it is agreed between
" the high Contracting Parties, that the inhabitants of the said United
"States shall have, forever, in common with the subjects of His
"Britannic Majesty, the liberty to take fish of every kind on that
"part of the southern coast of Newfoundland which extends from
"Cape Ray to the Rameau Islands, on the western and northern
"coast of Newfoundland, from the said Cape Ray to the Quirpon
"Islands, on the shores of the Magdalen Islands, and also on the
"coasts, bays, harbours and creeks, from Mount Joly, on the southern
" coast of Labrador, to and through the Straits of Belleisle, and thence
'northwardly indefinitely along the coast, without prejudice, how-
'ever, to any of the exclusive rights of the Hudson's Bay Company;
' and that the American fishermen shall also have liberty, forever, to
' dry and cure fish hi any of the unsettled bays, harbors and creeks of
' the southern part of the coast of Newfoundland hereabove described,
'and of the coast of Labrador; but so soon as the same, or any por-
' tion thereof, shall be settled, it shall not be lawful for the said fish-
' ermen to dry or cure fish at such portion so settled, without pre-
' vious agreement for such purpose, with the inhabitants, proprietors,
' or possessors of the ground."
"And the United States hereby renounce forever any liberty here-
"tofore enjoyed or claimed by the inhabitants thereof, to take, dry,
"or cure fish, on or within three marine miles, of any of the coasts,
"bays, creeks, or harbours of His Britannic Majesty's dominions hi
"America, not included within the above-mentioned limits; provided,
762 CORRESPONDENCE, ETC.
"however, that the American fishermen shall be admitted to enter
"such bays or harbours, for the purpose of shelter and of repairing
"damages therein, of purchasing wood, of obtaining water, and for
"no other purpose whatever. But they shall be under such restric-
" tions as may be necessary to prevent their taking, drying or curing
"fish therein, or hi any manner whatever abusing the privileges
"hereby reserved to them."
Attention is also called to the following provisions of the Act of the
Parliament of Canada, Cap. 61, of the Acts of 1868, entituled "An Act
respecting fishing for foreign vessels."
2nd. "Any commissioned officer of her Majesty's Navy, serving on
board of any vessel of Her Majesty's Navy, cruising and being in the
waters of Canada for purpose of affording protection to Her Majesty's
subjects engaged in the fisheries, or any commissioned officer of Her
Majesty's Navy, Fishery Officer, or Stipendiary Magistrate on board
of any vessel belonging to or in the service of the Government of
Canada and employed hi the service of protecting the fisheries, or any
officer of the Customs of Canada, Sheriff, Magistrate or other person
duly commissioned for that purpose, may go on board of any ship,
vessel or boat, within any harbor ui Canada, or hovering (in British
waters) within three marine miles of any of the coasts, bays, creek or
harbors hi Canada, and stay on board so long as she may remain
within such place or distance."
3rd. "If such ship, vessel or boat be bound elsewhere, and shall
continue within such harbor, or so hovering for twenty-four hours
after the Master shall have been required to depart, any one of such
officers or persons as are above mentioned may bring such ship,
vessel or boat into port and search her cargo, and may also examine
the Master upon oath touching the cargo and voyage; and if the
Master, or person in command shall not truly answer the questions
put to him in such examination, he shall forfeit four hundred dollars;
and if such ship, vessel or boat be foreign, or not navigated according
to the laws or the United Kingdom or of Canada, and have been
found fishing, or preparing to fish, or to have been fishing (in British
waters) within three marine miles of any of the coasts, bays, creeks,
or harbors of Canada, not included within the above-mentioned lim-
its, without a license, or after the expiration of the period named in
the last license granted to such ship, vessel, or boat under the first
section of this Act, such ship, vessel or boat, and the tackle, rigging,
apparel, furniture, stores and cargo thereof shall be forfeited."
4th. "All goods, ships, vessels and boats, and the tackle, rigging/
apparel, furniture, stores and cargo liable to forfeiture under this Act,
may be seized and secured by any officers or persons mentioned in
the second section of this Act; and every person opposing any officer
or person in the execution of his duty under this Act, or aiding or
abetting any other person in any opposition, shall forfeit eight hun-
dred dollars, and shall be guilty of a misdemeanor, and upon convic-
tion be liable to imprisonment for a term not exceeding two years."
Therefore be it known, that by virtue of the Treaty Provisions and
Act of Parilament, above recited, all foreign vessels, or boats, are for-
bidden from fishing or taking fish by any means whatever within
three marine miles of any of the coasts, bays, creeks and harbors in
Canada, or to enter such bays, harbors and creeks, except for the pur-
PERIOD FROM 1871 TO 1905. 763
pose of shelter and of repairing damages therein, of purchasing wood,
and of obtaining water, and for no other purpose whatever ;
Of all of which you will take notice and govern yourself accord-
ingly.
(Sd.) GEORGE E. FOSTER,
Minister of Marine and Fisheries.
DEPARTMENT OF FISHERIES,
Ottawa, ,5th March, 1886.
Mr. Bayard to Sir. L. West.
DEPARTMENT OF STATE,
Washington, May 10, 1886.
SIR : 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 Gloucester, Mass., by the authorities
at Baddeck, Cape Breton, and her discharge after a detention of
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 provision 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 pre-
vent occurrences tending to create exasperation, or unneighborly feel-
ing, 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 com-
mercial interests and the mercantile marine of the two countries as
may promote good feeling and mutual advantage, and prevent hos-
tility to commerce under the guise of protection to inshore fisheries.
The treaty of 1818 is between two nations, the United States ot
America and Great Britain, who, as the contracting parties, can alone
apply authoritative interpretation thereto, or enforce its provisions
by appropriate legislation.
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
764 CORRESPONDENCE, ETC.
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 in-
shore 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 regu-
lations importantly affecting the trade between the North American
Provinces of Great Britain and the United States have been, respect-
ively, 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 Govern-
ments has effected a gradual extension, from time to time, of the pro-
visions 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, de-
pend 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 authori-
ties, 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.
PERIOD FROM 18*71 TO 1905. 765
The effect of this colonial legislation and Executive interpretation,
if executed according to the letter, would be not only to expand the re-
strictions 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 unim-
paired 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 conditions
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 shores 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 con-
tiguous 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 employ-
ment these fish are now readily caught in deeper waters entirely ex-
terior to the three-mile line.
As it is admitted that the deep-sea fishing was not under considera-
tion in the negotiation of the treaty of 1818, nor was affected 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.
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 taeir own Government to touch and trade at Canadian
ports as well as to engage in deep sea-fishing, from exercising freely
766 CORRESPONDENCE, ETC.
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 admis-
sible as would convert the treaty of 1818 from being an instrumen-
tality for the protection of the inshore fisheries along the described
parts of the British American coast into a pretext or means of ob-
structing 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 treaty what-
ever, 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 treaty of
1818, but being resisted by the American negotiators was abandoned.
This fact would seem clearly to indicate that the business of fishing
did not then, and does not now, disqualify a vessel from also trading
in the regular ports of entry.
I have been led to offer these considerations by the recent seizures of
American vessels to which I have adverted and by indications of a
local spirit of interpretation in the Provinces, affecting friendly in-
tercourse, which is, I firmly believe, not warranted by the terms of the
stipulations on which it professes to rest. It is not my purpose to
prejudge the facts of the cases, nor have I any desire to shield any
American vessel from the consequences of violation of international
obligation. The views I advance may prove not to be applicable in
every feature to those particular cases, and I should be glad if no
case whatever were to arise calling in question the good understand-
ing of the two countries in this regard in order to be free from the
grave apprehensions which otherwise I am unable to dismiss.
It would be most unfortunate, and, I cannot refrain from saying,
most unworthy, if the two nations who contracted the treaty of 1818
should permit any questions of mutual right and duty under that con-
vention to become obscured by partisan advocacy or distorted by the
heat of local interests. It cannot but be the common aim to conduct
all discussion in this regard with dignity and in a self-respecting
spirit, that will show itself intent upon securing equal justice rather
than unequal advantage. Comity, courtesy, and justice cannot, I am
sure, fail to be the ruling motives and objects of discussion.
I shall be most happy to come to a distinct and friendly understand-
ing with you, as the representative of Her Britannic Majesty's Gov-
ernment, which will result in such a definition of the rights of Ameri-
PERIOD FROM 1871 TO 1905. 767
can fishing- vessels under the treaty of 1818 as shall effectually pre-
vent any encroachment by them upon the territorial waters of the
British Provinces for the purpose of fishing within those waters, or
trespassing in any way upon the littoral or marine rights of the in-
habitants, and, at the same time, prevent that convention from being
improperly expanded into an instrument of discord by affecting in-
terests and accomplishing results wholly outside of and contrary to
its object and intent, by allowing it to become an agency to interfere
with and perhaps destroy those reciprocal commercial privileges and
facilities between neighboring communities which contribute so im-
portantly to their peace and happiness. It is obviously essential that
the administration of the laws regulating the Canadian inshore fish-
ing should not be conducted in a punitive and hostile spirit, which
can only tend to induce acts of a retaliatory nature.
Everything will be done by the United States to cause their citi-
zens engaged in fishing to conform to the obligations of the treaty,
and prevent an infraction of the fishing laws of the British Prov-
inces; but it is equally necessary that ordinary commercial inter-
course should not be interrupted by harsh measures and unfriendly
administration.
I have the honor, therefore, to invite a frank expression of your
views upon the subject, believing that, should any differences of opin-
ion or disagreement as to facts exist, they will be found to be so
minimized that an accord can be established for the full protection of
the inshore fishing of the British Provinces, without obstructing the
open-sea fishing operations of the citizens of the United States or dis-
turbing the trade regulations now subsisting between the countries.
I have, &c.,
T. F. BAYARD.
Sir L. West to Mr. Bayard.
WASHINGTON, May 10, 1886.
(Received May 12.)
SIR : I have the honor to acknowledge the receipt of your note of
this day's date, and to inform you that I have lost no time in trans-
mitting a copy of this important communication to Her Majesty's
Government.
I have, &c., L. S. SACKVILLE WEST.
Mr. Bayard to Mr. Phelps.
No. 289.] DEPARTMENT OF STATE,
Washington, May 11, 1886.
SIR : With reference to your telegram of the 9th instant, in regard
to the fisheries question, I transmit to you herewith a copy of a note
which I addressed to Sir Lionel West yesterday on the subject.
I am, &c.,
T. F. BAYARD.
768 CORRESPONDENCE, ETC.
Mr. Bayard to Sir L. West.
DEPARTMENT OF STATE,
Washington, May W, 1886.
SIR : Although without reply to the note I had the honor to address
to you on the 10th instant, in relation to the Canadian fisheries and
the interpretation of the treaty of 1818 between the United States
and Great Britain as to the rights and duties of the American citizens
engaged in maritime trade and intercourse with the Provinces of
British North America, in view of the unrestrained, and, as it appears
to me, unwarranted, irregular, and severe action of Canadian officials
toward American vessels in those waters, yet I feel it to be my duty
to bring impressively to your attention information more recently
received by me from the United States consul-general at Halifax,
Nova Scotia, in relation to the seizure and continued detention of the
American schooner David J. Adams, already referred to in my pre-
vious note, and the apparent disposition of the local officials to use
the most extreme and technical reasons for interference with vessels
not engaged in or intended for inshore fishing on that coast.
The report received by me yesterday evening -alleges such action in
relation to the vessel mentioned as renders it difficult to imagine it to
be that orderly proceeding and " due process of law " so well known
and customarily exercised in Great Britain and the United States, and
which dignifies the two Governments, and gives to private rights of
property and the liberty of the individual their essential safeguards.
By the information thus derived it would appear that after four
several and distinct visitations by boats' crews from the Lansdowne,
in Annapolis Basin, Nova Scotia, the David J. Adams was summarily
taken into custody by the Canadian steamer Lansdowne and carried
out of the Province of Nova Scotia, across the Bay of Fundy, and into
the port of St. John, New Brunswick, and without explanation or
hearing, on the following Monday, May 10, taken back again by an
armed crew to Digby, in Nova Scotia. 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 manner as to prevent its con-
tents being read, and the request of the captain of the David J. Adams
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 posi-
tively refused by the provincial official in charge. Nor was the United
States consul-general able to learn from the commander of the
Lansdowne the nature of the complaint against the vessel, and his
respectful application to that effect was fruitless.
In so extraordinary, confused, and irresponsible a condition of
affairs, it is not possible to ascertain with that accuracy which is need-
ful in matters of such grave importance the precise grounds for this
harsh and peremptory arrest and detention of a vessel the property
of citizens of a nation with whom relations of peace and amity were
supposed to exist.
From the best information, however, which the United States consul-
general was enabled to obtain after application to the prosecuting
officials, he reports that the David J. Adams was seized and is now
held (1) for alleged violation of the treaty of 1818; (2) for alleged
PERIOD FROM 1871 TO 1905. 769
violation of the act 59 Geo. Ill; (3) for alleged violation of the colo-
nial act of Nova Scotia of 1868 ; and (4) for alleged violation of the
act of 1870 and also that of 1883, both Canadian statutes.
Of these allegations there is but one which at present I press upon
your immediate consideration, and that is the alleged infraction of
the treaty of 1818.
I beg to recall to your attention the correspondence and action of
those respectively charged with the administration and government of
Great Britain and the United States in the year 1870, when the same
international questions were under consideration and the status of law
was not essentially different from what it is at present.
This correspondence discloses the intention of the Canadian authori-
ties of that day to prevent encroachment upon their inshore fishing
grounds, and their preparations in the way of a marine police force,
very much as we now witness. The statutes of Great Britain and of
her Canadian Provinces, which are now supposed to be invoked as au-
thority for the action against the schooner David J. Adams, were then
reported as the basis of their proceedings.
In his note of May 26, 1870, Mr. (afterwards Sir Edward) Thorn-
ton, the British minister at this capital, conveyed to Mr. Fish, then
Secretary of State, copies of the orders of the royal Admiralty to
Vice-Admiral Wellesley, in command of the naval forces " employed
in maintaining order at the fisheries in the neighborhood of the coasts
of Canada."
All of these orders directed the protection of Canadian fishermen
and cordial co-operation and concert with the United States force sent
on the same service with respect to American fishermen in those
waters. Great caution in the arrest of American vessels charged with
violation of the Canadian fishing laws was scrupulously enjoined upon
the British authorities, and the extreme importance of the command-
ing officers of ships selected to protect the fisheries exercising the ut-
most discretion in paying especial attention to Lord Granville's ob-
servation, that no vessel should be seized unless it were evident, and
could be clearly proved, that the offense of fishing had been com-
mitted, and the vessel captured within three miles of land.
This caution was still more explicitly announced when Mr. Thorn-
ton, on the llth of June, 1870, wrote to Mr. Fish:
" You are, however, quite right in not doubting that Admiral
Wellesley, on the receipt of the later instructions addressed to him on
the 5th ultimo, will have modified the directions to the officers under
his command so that they may be in conformity with the views of the
Admiralty. In confirmation of this I have since received a letter
from Vice-Admiral Wellesley dated the 30th ultimo, informing me
that he had received instructions to the effect that officers of Her
Majesty's ships employed in the protection of the fisheries should not
seize any vessel unless it were evident, and could be clearly proved,
that the offense of fishing had been committed and the vessel itself
captured within three miles of land."
This understanding between the two Governments wisely and effi-
ciently guarded against the manifest danger of intrusting the execu-
tion of powers so important and involving so high and delicate a
discretion to any but wise and responsible officials, whose prudence
t)2909°— S. Doc. 870, 61-3, vol 3 10
770 CORRESPONDENCE, ETC.
and care should be commensurate with the magnitude and national
importance of the interests involved. And I should fail in my duty if
I did not endeavor to impress you with my sense of the absolute and
instant necessity that now exists for a restriction of the seizure of
American vessels charged with violations of the treaty of 1818 to the
conditions announced by Sir Edward Thornton to this Government
in June, 1870.
The charges of violating the local laws and commercial regulations
of the ports of the British Provinces (to which I am desirous that due
and full observance should be paid by citizens of the United States) ,
I do not consider in this note, and I will only take this occasion to ask
you to give me full information of the official action of the Canadian
authorities in this regard, and what laws and regulations having the
force of law, in relation to the protection of their inshore fisheries and
preventing encroachments thereon, are now held by them to be in
force.
But I trust you will join with me in realizing the urgent and essen-
tial importance of restricting all arrests of American fishing vessels
for supposed or alleged violations of the convention of 1818 within
the limitations and conditions laid down by the authorities of Great
Britain in 1870, to wit : That no vessel shall be seized unless it is evi-
dent and can be clearly proved that the offense of fishing has been com-
mitted and the vessel itself captured within three miles of land.
In regard to the necessity for the instant imposition of such restric-
tions upon the arrest of vessels, you will, I believe, agree with me, and
I will therefore ask you to procure such steps to be taken as shall
cause such orders to be forthwith put in force under the authority of
Her Majesty's Government.
I have, &c., T. F. BAYARD.
Mr. Bayard to Sir L. West.
DEPARTMENT or STATE,
Washington, May 22, 1886.
MY DEAR SIR LIONEL: I have telegraphed to-day to Mr. Phelps,
urging the advantage and need of my coming to some immediate
understanding with you expressive of the views of the two parties
to the treaty.
My conviction strengthens as to the importance of having a stop
put at once to vexatious interpretations and action by local authori-
ties, which can only hinder an amicable accord, and I have asked that
these seizures be suspended without prejudice to the legal results
pending an authoritative treatment of the main question.
It surely cannot be the purpose of the provincial authorities to
embarrass the two Governments, by whom alone the issues are cogni-
zable. A frank and friendly spirit has been exhibited by both Gov-
ernments in abstaining from any demonstration of naval force in the
provincial waters, and it is desirable that this should be continued, as
it will add to the moral impressiveness of any settlement we may
arrive at.
Very faithfully yours, T. F. BAYARD.
PERIOD FROM 18*71 TO 1905. 771
Mr. Bayard to Mr. Phelps.
No. 303.] DEPARTMENT OF STATE,
Washington, May 28, 1886.
SIR: With reference to my instruction No. 289 of the llth instant,
transmitting to you a copy of my note of the 10th of this month to
Sir Lionel West, Her Britannic Majesty's minister at this capital,
concerning the fishery question, I now inclose for your information a
copy of a further note on the same subject, which I addressed to Sir
Lionel West yesterday, inclosing also a copy of the report of the
United States consul-general at Halifax, which is referred to in my
note to Sir Lionel West.
I am, &c., T. F. BAYARD.
[Inclosure No. 1.]
Mr. Bayard to Sir Lionel West, May 20, 1886. (See ante, p. 768.)
t Inclosure No. 2.]
Mr. Phelan to Mr. Porter.
No. 82.] UNITED STATES CONSULATE-GENERAL,
Halifax, May 15, 1886.
SIR: As instructed by message from the honorable Secretary of
State to personally report, fully and carefully, all the facts and pro-
ceedings connected with the seizure of the American schooner David
J. Adams by armed men from the Canadian steamship Lansdowne, I
left Halifax for St. John May 10, as soon after receiving the mes-
sage as the means of travel would permit. After leaving I learned
that the vessel had been taken back to Digby, where I proceeded, and
found her anchored close to the Lansdowne in Digby Harbor.
Shortly after my arrival Captain Scott, of the Lansdowne, formally
transferred the custody of the vessel to the collector of the port of
Digby to be held on a charge, as the collector informed me, of vio-
lating the customs act of 1883, the penalty being $400. He said if
this sum was paid and the vessel not claimed by the minister of fish-
eries he would release her. On the following morning, in order to get
at the facts in connection with the seizure, I addressed a note to the
collector asking him to furnish me a copy of the charges against the
vessel. He replied verbally that the vessel passed out of his posses-
sion, and was again in Captain Scott's custody. I then addressed
Captain Scott a communication asking him to state in writing, fully
and specifically, with as little delay as possible, why he detained this
vessel.
Captain Scott replied by referring me to the deputy minister of
fisheries in Ottawa. The refusal of Captain Scott to give this infor-
mation, which I had a right to have, even without asking for it, was
not only discourteous to me, but an indignity to the nation whose
vessel he seized. The next morning I heard that a process in an ad-
miralty suit against the schooner was' served on the vessel. I went on
board and found that the process was served by affixing to the mast
with nails what I supposed to be a warrant or summons ; no part of
which, except the indorsement, was visible. I requested permission
772 CORRESPONDENCE, ETC.
from the person in charge of the schooner to take down this process
so that I might read, and, if possible, ascertain from its contents what
offenses were charged against this vessel. My request was refused;
and right here I may remark that it seems a strange course of pro-
cedure to serve a party with a process to appear and defend a suit,
and then prohibit that party and those interested in his protection
and defense in respect to that suit, from seeing or inspecting the
process thus served. The frequent changes as to the custodians of this
vessel, the mysterious secret, and unexplained movements of these
officials, and their refusal to set forth any of the alleged offenses
charged to the vessel, was most aggravating.
All the parties to the controversy were on the ground, and want of
knowledge could not be urged as a reason why this information was
withheld. Not until after my arrival in Halifax, on the 14th of May,
did I receive the slightest intimation of the charge against the vessel,
but on the contrary every effort was made to conceal it. All I could
do under the circumstances was to serve Captain Scott, and the person
in charge of the schooner, with protest. Captain Scott arrived in
Halifax on the 12th. On the 14th he sent me a second reply, in which
he stated that the vessel was seized for a violation of the imperial
statutes in entering a port for other than a legal purpose.
The facts in this case, as I obtained them from Captain Kinney, are
as follows:
The David J. Adams entered Digby Bay on Wednesday evening,
May 5, 1886. Her captain purchased from a fisherman named Ellis,
residing at the entrance of Digby Bay, nearly five barrels of bait.
On Thursday he purchased from several fishermen, whose names he
did not know, nearly seven barrels of bait. He then brought his
vessel to anchor. It appears that this man Ellis had promised to sell
this bait to a Canadian captain named Sproule for 75 cents per bar-
rel, but getting $1.25 from the captain of the David J. Adams, sold it
to him. The Canadian captain reported the sale to the collector, who
telegraphed for the Lansdowne, which arrived during the night. On
Friday morning the David J. Adams in sailing out of the basin was
hailed by a boat from the Lansdowne and came alongside, the com-
mander of which asked the name of the vessel and that of her owner,
where she was from, and her business in the basin. Being answered
by the captain in his own way, the boat returned to the Lansdowne
without ordering the vessel to sea. The schooner continued her
course, but ran aground, and while in this position she was boarded
a second time. The officer in charge stated that he had orders from
Captain Scott to search the vessel, and immediately proceeded to carry
out the order, and found some herring. The captain was asked how
old they were. He replied about ten days. The boat again returned
to the Lansdowne and brought to the schooner a new officer, who
examined the vessel and returned to the Lansdowne. The fourth
visit to the vessel brought Captain Scott, who, in the name of the
Queen, seized her. On Saturday morning the vessel was taken to
St. John, N. B., and on Sunday she was returned to Digby, the place
of capture.
A suit has been begun in the supreme court of Xova Scotia at Hali-
fax in the name of the Queen against Alden Kinney, master, in
which the following claim is made, namely, for £200 sterling, equal
PERIOD PROM 1811 TO 1905. 773
to $973.33, for violation of a certain convention between his late
Majesty, George the Third, King of Great Britain and Ireland, of the
one part, and the United States of America of the other part, made
on the 20th day of October, A. D. 1818, and for violation of the act of
Parliament of Great Britain and Ireland, made and passed in the
fifty-ninth year of the reign of his late Majesty, George the Third,
King of the United Kingdom of Great Britain and Ireland, being
chapter 38 of the acts of the said last Parliament, and passed in said
year. In addition to the above, an action has been instituted in the
vice-admiralty court at Halifax to have the vessel and cargo for-
feited. The charges are (1) that she violated the treaty of 1818;
(2) that she violated the provisions of the act 59, George the Third;
(3) that she violated the provisions of chapter 61 of the Canadian
acts of 1870, and chapter 23 of the acts of Canada, 1871. Also a suit
was instituted later for violating the customs act of Canada for 1883.
Under this act it is charged that the vessel did not report her arrival
at Digby to the customs officer. Digby is a fishing village without a
corporation, and, so far as I could learn, and I made special inquiry,
the harbor is not defined, and the practice has been that only vessels
having business at Digby entered at the custom-house. The records
of the office will show, and the collector admitted, that during his forty
years' service fishermen went in and out the bay at pleasure and were
never required to report. It is very plain that this suit was not insti-
tuted to vindicate the law, as the vessel was not apprehended on that
charge, but instituted to annoy and harass our fishermen. The other
suits are for violating the treaty of 1818, and statutes made under it.
I confidently report that the only charge against the vessel that can be
sustained, or that she is guilty of, is purchasing fish in British waters.
My conclusions are therefore as follows :
(1) That the David J. Adams was not fishing, had not fished, and
was not preparing to fish in British waters.
(2) She did not conceal her name nor attempt to conceal her name.
(3) She did not report to the custom-house at Digby, because she
did not enter the harbor of Digby, but only Digby Basin.
(4) She purchased twelve barrels of fish for bait in British waters
for deep-sea fishing, and not to fish in such waters.
I am, sir, your obedient servant,
M. H. PHELAN,
Consul- General.
Mr. Bayard to Mr. P helps. (Communicated to the Earl of Rosebery
by Mr. Phelps, May 29.}
[Telegraphic.]
MAY 27, 1886.
You will say to Lord Rosebery that every disposition exists on our
part to arrive at an amicable and just solution of Canadian fishery
and trade question, as the President has already manifested. Main
point now is to have Treaty of 1818 so interpreted as not to destroy
commercial intercourse, including purchase of bait for use in deep-
sea fishing. This was done by Great Britain in 1871, and its aban-
774 CORRESPONDENCE, ETC.
donment now would be inadmissible and adhered to now would re-
lieve hardship and exasperation caused by summary arrest of vessels.
Present action of Canadian authorities is calculated to obstruct
settlement.
Mr. Bayard to Sir L. West.
DEPARTMENT OF STATE,
Washington, May 29, 1886.
SIR : I have just received an official imprint of House of Commons
bill No. 136, now pending in the Canadian Parliament, entitled "An
act further to amend the act respecting fishing by foreign vessels,"
and am informed that it has passed the house and is now pending in
the senate.
This bill proposes the forcible search, seizure, and forfeiture of any
foreign vessel within any harbor in Canada, or hovering within three
marine miles of any of the coasts, bays, creeks, or harbors in Canada,
where such vessel has entered such waters for any purpose not per-
mitted by the laws of nations, or by treaty or convention, or by any
law of the United Kingdom or of Canada now in force.
I hasten to draw your attention to the wholly unwarranted propo-
sition of the Canadian authorities, through their local agents, arbi-
trarily to enforce according to their own construction the provisions
of any convention between the United States and Great Britain, and,
by the interpolation of language not found in any such treaty, and,
by interpretation not claimed or conceded by either party to such
treaty, to invade and destroy the commercial rights and privileges of
citizens of the United States under and by virtue of treaty stipulation
with Great Britain and statutes in that behalf made and provided.
I have also been furnished with a copy of circular No. 371, pur-
porting to be from the customs department at Ottawa, dated May 7,
1886, and to be signed by J. Johnson, commissioner of customs,
assuming to execute the provisions of the treaty between the United
States and Great Britain, concluded October 20, 1818, and printed
copies of a warning, purporting to be issued by George E. Foster,
minister of marine and fisheries, dated at Ottawa, March 5, 1886, of a
similar tenor, although capable of unequal results in its execution.
Such proceedings I conceive to be flagrantly violative of the
reciprocal commercial privileges to which citizens of the United
States are lawfully entitled under statutes of Great Britain and the
well-defined and publicly proclaimed authority of both countries,
besides being in respect of the existing conventions between the two
countries an assumption of jurisdiction entirely unwarranted and
which is wholly denied by the United States.
In the interest of the maintenance of peaceful and friendly rela-
tions, I give you my earliest information on this subject, adding that
I have telegraphed Mr. Phelps, our minister at London, to make
earnest protest to Her Majesty's Government against such arbitrary,
unlawful, unwarranted and unfriendly action on the part of the
Canadian Government and its officials, and have instructed Mr.
Phelps to give notice that the Government of Great Britain will be
PERIOD PROM 1811 TO 1905. 775
held liable for all losses and injuries to citizens of the United States
and their property caused by the unauthorized and unfriendly action
of the Canadian officials to which I have referred.
I have, &c.,
T. F. BAYARD.
Mr. Bayard to Mr. Phelps.
[Telegraphic.]
WASHINGTON, May 30, 1886.
Call attention of Lord Eosebery immediately to Bill now pending
in the Parliament of Canada, assuming to execute Treaty of 1818;
also Circular by Johnson, Commissioner of Customs ordering seizure
of vessels for violation of Treaty. Both are arbitrary and unwar-
ranted assumptions of power against which you are instructed
earnestly to protest, and state that the United States will hold Gov-
ernment of Great Britain responsible for all losses which may be
sustained by American citizens in the dispossession of their property
growing out of the search, seizure, detention, or sale of their vessels
lawfully within territorial waters of British North America.
Mr. Phelps to the Earl of Rosebery.
LEGATION OF THE UNITED STATES,
London, June 1, 1886. (Received June 1.)
My LORD, I have the honour to enclose for your perusal, a copy of
the translation of a cypher telegram which I have just received from
the Secretary of State of the United States, and respectfully to
ask your early attention to the subject it refers to.
I shall have the honor to submit to your Lordship in writing, in
behalf of my Government, within two or three days, some observa-
tions on the questions involved.
I have, &c.,
E. J. PHELPS.
The EARL OF ROSEBERY.
Mr. Bayard to Mr. Phelps.
No. 310.] DEPARTMENT OF STATE,
Washington, June 1, 1886.
SIR : With reference to my instructions No. 289, of the llth ultimo,
and No. 303, of the same month, transmitting to you for your in-
formation copies of my recent notes to Sir Lionel West concerning
the fisheries question, I now inclose herewith for your further in-
formation two copies of a note which I addressed on the 29th ultimo
to Her Britannic Majesty's minister at this capital in relation to
776 CORRESPONDENCE, ETC.
house of commons bill No. 136, now pending in the Dominion Parlia-
ment, entitled "An act further to amend the act respecting fishing
by foreign vessels."
I am, £c., T. F. BAYARD.
Sir L, West to Mr. Bayard.
WASHINGTON, June #, 1886.
(Received June 3.)
SIR : I have the honor to acknowledge the receipt of your notes of
the 20th and 29th of May on the subject of the seizure of American
fishing vessels in Canadian waters.
I have, &c. L. S. SACHVILLE WEST.
Mr. Phelps to Lord Rosebery.
LEGATION OF THE UNITED STATES,
London, June 8, 1886.
MY LORD : Since the conversation I had the honor to hold with your
lordship, on the morning of the 29th ultimo, I have received from my
Government a copy of the report of the consul-general of the United
States at Halifax, giving full details and depositions relative to the
seizure of the David J. Adams, and the correspondence between the
consul-general and the colonial authorities in reference thereto.
The report of the consul-general and the evidence annexed to it
appear fully to sustain the point submitted to your lordship in the
interview above referred to, touching the seizure of this vessel by the
Canadian officials.
I do not understand it to be claimed by the Canadian authorities
that the vessel seized had been engaged or was intending to engage
in fishing within any limit prohibited by the treaty of 1818.
The occupation of the vessel was exclusively deep-sea fishing, a
business in which it had a perfect right to be employed. The ground
upon which the capture was made was that the master of the vessel
had purchased of an inhabitant of Nova Scotia, near the port of
Digby, in that province, a day or two before, a small quantity of bait
to be used in fishing in the deep sea, outside the three-mile limit.
The question presented is whether, under the terms of the treaty
and the construction placed upon them in practice for many years
by the British Government, and in view of the existing relations
between the United States and Great Britain, that transaction affords
a sufficient reason for making such a seizure and for proceeding under
it to the confiscation of the vessel and its contents.
I am not unaware that the Canadian authorities, conscious, appar-
ently, that the affirmative of this proposition could not be maintained,
deemed it advisable to supplement it with a charge against the vessel
of a violation of the Canadian customs act of 1883, in not reporting
her arrival at Digby to the customs officer. But this charge is not
the one on which the vessel was seized, or which must now be princi-
pally relied on for its condemnation, and standing alone could hardly,
PERIOD FROM 1871 TO 1905. 777
even if well founded, be the source of any serious controversy. It
would be at most, under the circumstances, only an accidental and
purely technical breach of a custom-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 the
payment of costs.
But trivial as it is, this charge does not appear to be well founded
in point of fact. Digby is a small fishing settlement and its harbor
not defined. The vessel had moved about and anchored in the outer
part of the harbor, having no business at, or communication with
Digby, and no reason for reporting to the officer of customs. It
appears by the report of the consul-general to be conceded by the
customs authorities there that 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 claimed against them for so doing.
Can it be reasonably insisted under these circumstances that by the
sudden adoption, without notice, of a new rule, a vessel of a friendly
nation should be seized and forfeited for doing what all similar ves-
sels had for so long a period been allowed to do without question ?
It is sufficiently evident that the claim of a violation of the cus-
toms act was an afterthought, brought forward to give whatever
added strength it might to the principal claim on which the seizure
had been made.
Recurring, then, to the only real question in the case, whether the
vessel is to be forfeited for purchasing bait of an inhabitant of Nova
Scotia, to be used in lawful fishing, it may be readily admitted 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, to repair
damages, or to seek shelter. Whether it would be liable to the extreme
penalty of confiscation for a breach of this prohibition in a trifling
and harmless instance might be quite another question.
Such a literal construction is best refuted by considering its pre-
posterous consequences. If a vessel enters a port to post a letter, or
send a telegram, or buy a newspaper, to obtain a physician in case of
illness, or a surgeon in case of accident, to land or bring off a passen-
ger, or even to lend assistance to the inhabitants in fire, flood, or
pestilence, it would, upon this construction, be held to violate the
treaty stipulations maintained between two enlightened maritime and
most friendly nations, whose ports are freely open to each other in
all other places and under all other circumstances. If a vessel is not
engaged in fishing she may enter all ports ; but if employed in fishing,
not denied to be lawful, she is excluded, though on the most innocent
errand. She may buy water, but not food or medicine; wood, but
not coal. She may repair rigging, but not purchase a new rope,
though the inhabitants are desirous to sell it. If she even entered
the port (having no other business) to report herself to the custom-
house, as the vessel in question is now seized for not doing, she would
be equally within the interdiction of the treaty. If it be said these
are extreme instances of violation of the treaty not likely to be
778 CORRESPONDENCE, ETC.
insisted on, I reply that no one of them is more extreme than the one
relied upon in this case.
I am persuaded that your lordship will, upon reflection, concur
with me that an intention so narrow, and in its result so unreasonable
and so unfair, is not to be attributed to the high contracting parties
who entered into this treaty.
It seems to me clear that the treaty must be construed in accord-
ance with those ordinary and well-settled rules applicable to all writ-
ten instruments, which without such salutary assistance must con-
stantly fail of their purpose. By these rules the letter often gives
way to the intent, or rather is only used to ascertain the intent.
The whole document will be taken together, and will be consid-
ered in connection with the attendant circumstances, the situation of
the parties, and the object in view, and thus the literal meaning of an
isolated clause is often shown not to be the meaning really understood
or intended.
Upon these principles of construction the meaning of the clause in
question does not seem doubtful. It is a treaty of friendship and not
of hostility. Its object was to define and protect the relative rights
of the people of the two countries in these fisheries, not to establish
a system of non-intercourse or the means of mutual and unnecessary
annoyance. It should be judged in view of the general rules of
international comity and of maritime intercourse and usage, and its
restrictions considered in the light of the purposes they were designed
to serve.
Thus regarded it appears to me clear that the words " for no other
purpose whatever," as employed in the treaty, mean no other pur-
poses inconsistent with the provisions of the treaty, or prejudicial to
the interests of the provinces or their inhabitants, and were not in-
tended to prevent the entry of American fishing vessels into Cana-
dian ports for innocent and mutually beneficial purposes, or unneces-
sarily to restrict the free and friendly intercourse customary between
all civilized maritime nations, and especially between the United
States and Great Britain. Such, I cannot but believe, is the con-
struction that would be placed upon this treaty by any enlightened
court of justice.
But even were it conceded that if the treaty was a private contract,
instead of an international one, a court in dealing with an action
upon it might find itself hampered by the letter from giving effect to
the intent, that would not be decisive of the present case.
The interpretation of treaties between nations in their intercourse
with each other proceeds upon broader and higher considerations.
The question is not what is the technical effect of words, but what is
the construction most consonant to the dignity, the just interests, and
the friendly relations of the sovereign powers. I submit to your
lordship that a construction so harsh, so unfriendly, so unnecessary,
and so irritating as that set up by the Canadian authorities is not
such as Her Majesty's Government has been accustomed either to
accord or to submit to. It would find no precedent in the history of
British diplomacy, and no provocation in any action or assertion of
the Government of the United States.
PERIOD FEOM 1871 TO 1905. , 779
These views derive great, if not conclusive, force from the action
of the British Parliament on the subject, adopted very soon after the
treaty of 1818 took effect, and continued without change to the pres-
ent time.
An act of Parliament (59 George III, chap. 38) was passed June
14, 1819, to provide for carrying into effect the provisions of the
treaty. After reciting the terms of the treaty, it enacts (in sub-
stance) that it shall be lawful for His Majesty by orders in council
to make such regulations and to give such directions, orders, and in-
structions to the governor of Newfoundland or to any officer or
officers in that station, or to any other persons " as shall or may be
from time to time deemed proper and necessary for the carrying into
effect the purposes of said convention witk relation to the taking,
drying, and curing of -fish by inhabitants of the United States of
America, in common with British subjects within the limits set forth
in the aforesaid convention."
It further enacts that any foreign vessel engaged in fishing, or
preparing to fish, within three marine miles of the coast (not author-
ized to do so by treaty) shall be seized or forfeited upon prosecution
in the proper court.
It further provides as follows :
" That it snail and may be lawful for any fisherman of the said
United States to enter into any such bays or harbors of his Britannic
Majesty's dominions in America as are last mentioned for the pur-
pose of shelter and repairing damages therein and of purchasing
wood and of obtaining water, and for no other purpose whatever,
subject nevertheless to such restrictions as may be necessary to pre-
vent such fishermen of the said United States from taking, drying,
or curing fish in the said bays or harbors, or in any other manner
whatever abusing the said privileges by the said treaty and this act
reserved to them, and as shall for that purpose be imposed by an
order or orders to be from time to time made by His Majesty in coun-
cil under the authority of this act, and by any regulations which
shall be issued by the governor or person exercising the office of gov-
ernor in any such parts of His Majesty's dominions in America, under
or in pursuance of any such an order in council as aforesaid.
It further provides as follows :
" That if any person or persons upon requisition made by the gov-
ernor of Newfoundland, or the person exercising the office of governor,
or by any governor or person exercising the office of governor, in any
other parts of His Majesty's dominions in America as aforesaid, or by
any officer or officers acting under such governor, or person exercising
the office of governor, in the execution of any orders or instructions
from His Majesty in council, shall refuse to depart from such bays or
harbors; or if any person or persons shall refuse or neglect to con-
form to any regulations or directions which shall be made or given
for the execution of any of the purposes of this act ; every such person
so refusing or otherwise offending against this act shall forfeit the
sum of £200, to be recovered, &c."
It will be perceived from these extracts, and still more clearly
from a perusal of the entire act, that while reciting the language of
780 CORRESPONDENCE, ETC.
the treaty in respect to the purposes for which American fishermen
may enter British ports, it provides no forfeiture or penalty for any
such entry unless accompanied either (1) by fishing or preparing to
fish within the prohibited limits, or (2) by the infringement of re-
strictions that may be imposed by orders in council to prevent such
fishing or the drying or curing of fish, or the abuse of privileges
reserved by the treaty, or (3) by a refusal to depart from the bays or
harbors upon proper requisition.
It thus plainly appears that it was not the intention of Parliament,
nor its understanding of the treat}7, that any other entry by an Ameri-
can fishing vessel into a British port should be regarded as an infrac-
tion of its provisions, or as affording the basis of proceedings
against it.
No other act of Parliament for the carrying out of this treaty has
ever been passed. It is unnecessary to point out that it is not in the
power of the Canadian Parliament to enlarge or alter the provisions
of the act of the Imperial Parliament, or to give to the treaty either
a construction or a legal effect not warranted by that act.
But until the effort which I am informed is now in progress in the
Canadian Parliament for the passage of a new act on the subject,
introduced since the seizures under consideration, I dp not under-
stand that any statute has ever been enacted in that Parliament which
attempts to give any different construction of effect to the treaty from
that given by the act of 59 George III.
The only provincial statutes which, in the proceedings against the
David J. Adams i that vessel has thus far been charged with infring-
ing are the colonial acts of 1868, 1870, and 1883. It is therefore fair
to presume that there are no other colonial acts applicable to the case,
and I know of none.
The act of 1868, among other provisions not material to this discus-
sion, provides for a forfeiture of foreign vessels " found fishing, or
preparing to fish, or to have been fishing, in British waters within
three marine miles of the coast," and also provides a penalty of $400
against a master of a foreign vessel within the harbor who shall fail
to answer questions put in an examination by the authorities. Xo
other act is b;y this statute declared to be illegal ; and no other penalty
or forfeiture is provided for.
The very extraordinary provisions in this statute for facilitating
forfeitures and embarrassing defense, or appeal from them, not mate-
rial to the present case, would, on a proper occasion, deserve very
serious attention.
The act of 1883 has no application to the case, except upon the
point of the omission of the vessel to report to the customs officer
already considered.
It results, therefore, that at the time of the seizure of the David J.
Adams and other vessels there was no act whatever, either of the
British or colonial parliaments, which made the purchase of bait by
those vessels illegal, or provided for any forfeiture, penalty, or pro-
ceedings against them for such a transaction, and even if such pur-
chase could be regarded as a violation of that clause of the treaty
•which is relied on, no law existed under which the seizure could be
justified. It will not be contended that custom-house authorities or
colonial courts can seize and condemn vessels for a breach of the
stipulations of a treaty when no legislation exists which authorizes
PERIOD FROM 1871 TO 1905. 781
them to take cognizance of the subject, or invests them with any juris-
diction in the premises. Of this obvious conclusion the Canadian
authorities seem to be quite aware. I am informed that since the
seizures they have pressed or are pressing through the Canadian par-
liament in much haste an act which is designed for the first time in
the history of the legislation under this treaty to make the facts upon
which the American vessels have been seized illegal, and to authorize
proceedings against them therefor.
What the effect of such an act will be in enlarging the provisions
of an existing treaty between the United States and Great Britain
need not be considered here. The question under discussion depends
upon the treaty and upon such legislation warranted by the treaty
as existed when the seizure took place.
The practical construction given to the treaty down to the present
time has been in entire accord with the conclusions thus deduced
from the act of Parliament. The British Government has repeatedly
refused to allow interference with American fishing vessels, unless
for illegal fishing, and has given explicit orders to the contrary.
On the 26th of May, 1870, Mr. Thornton, the British minister at
Washington, communicated officially to the Secretary of State of the
United States copies of the orders addressed by the British Ad-
miralty to Admiral Wellesley, commanding Her Majesty's naval
forces on the Xorth American station, and of a letter from the
colonial department to the foreign office, in order that the Secretary
might " see the nature of the instructions to be given to Her Majesty s
and the Canadian officers employed in maintaining order at the fish-
eries in the neighborhood of the coasts of Canada." Among the
documents thus transmitted is a letter from the foreign office to the
secretary of the Admiralty, in which the following language is
contained :
" The Canadian Government has recently determined, with the
concurrence of Her Majesty's ministers, to increase the stringency
of the existing practice of dispensing with the warnings hitherto
given, and seizing at once any vessel detected in violating the law.
" In view of this change and of the questions to which it may give
rise, I am directed by Lord Granville to request that you will move
their lordships to instruct the officers of Her Majesty's ships em-
ployed in the protection of the fisheries that they are not to seize
any vessel unless it is evident and can be clearly proved that the
offense of fishing has been committed and the vessel itself captured
within three miles of land."
In the letter from the lords of the Admiralty to Vice-Admiral
Wellesley of May 5, 1870, in accordance with the foregoing request,
and transmitting the letter above quoted from, there occurs the fol-
lowing language :
" My lords desire me to remind you of the extreme importance of
commanding officers of the ships selected to protect the fisheries exer-
cising the utmost discretion in carrying out their instructions, pay-
ing special attention to Lord Granville's observation that no vessel
should be seised unless it is evident and can be clearly proved that
the offense of fishing has been committed, and that the vessel is cap-
tured within three miles of land."
Lord Granville, in transmitting to Sir John Young the aforesaid
instructions, makes use of the following language :
782 CORRESPONDENCE, ETC.
" Her Majesty's Government do not doubt that your ministers will
agree with them as to the propriety of these instructions, and will
give corresponding instructions to the vessels employed by them."
These instructions were again officially stated by the British min-
ister at Washington to the Secretary of State of the United States
in a letter dated June 11, 1870.
Again, in February, 1871, Lord Kimberly, colonial secretary, wrote
to the governor-general of Canada as follows :
" The exclusion of American fishermen from resorting to Canadian
ports, except for the purpose of shelter, and of repairing damages
therein, purchasing wood, and of obtaining water, might be war-
ranted by the letter of the treaty of 1818, and by the terms of the
imperial act 59 George III, chap. 38, but Her Majesty's Government
feel bound to state that it seems to them an extreme measure, incon-
sistent with the general policy of the Empire, and they are disposed
to concede this point to the United States Government under such
restrictions as may be necessary to prevent smuggling, and to guard
against any substantial invasion of the exclusive rights of fishing
which may be reserved to British subjects."
And in a subsequent letter from the same source to the governor-
general, the following language is used:
" I think it right, however, to add that the responsibility of de-
termining what is the true construction of a treaty made by Her
Majesty with any foreign power must remain with Her Majesty's
Government, and that the degree to which this country would make
itself a party to the strict enforcement of the treaty rights may de-
pend not only on the literal construction of the treaty, but on the
moderation and reasonableness with which these rights are asserted."
I am not aware that any modification of these instructions or any
different rule from that therein contained has ever been adopted or
sanctioned by Her Majesty's Government.
Judicial authority upon this question is to the same effect. That
the purchase of bait by American fishermen in the provincial ports
has been a common practice is well known. But in no case, so far as
I can ascertain, has a seizure of an American vessel ever been en-
forced on the ground of the purchase of bait, or of any other sup-
plies. On the hearing before the Halifax Fisheries Commission in
1877 this question was discussed, and no case could be produced of any
such condemnation. Vessels shown to have been condemned were in
all cases adjudged guilty, either of fishing, or preparing to fish, within
the prohibited limit. And in the case of the White Fawn, tried in
the admiralty court of New Brunswick before Judge Hazen in 1870,
I understand it to have been distinctly held that the purchase of bait,
unless proved to have been in preparation for illegal fishing, was not
a violation of the treaty, nor of any existing law, and afforded no
ground for proceedings against the vessel.
But even were it possible to justify on the part of the Canadian
authorities the adoption of a construction of the treaty entirely dif-
ferent from that which has always heretofore prevailed, and to de-
clare those acts criminal which have hitherto been regarded as inno-
cent, upon obvious grounds of reason and justice, and upon common
principles of comity to the United States Government, previous notice
should have been given to it or to the American fishermen of the new
and stringent instructions it was intended to enforce.
PERIOD FROM 1871 TO 1905. 783
If it was the intention of Her Majesty's Government to recall the
instructions which I have shown had been previously and so ex-
plicitly given relative to the interference with American vessels,
surely notice should have been given accordingly.
The United States have just reason to complain, even if these re-
strictions could be justified by the treaty or by the acts of Parliament
passed to carry it into effect, that they should be enforced in so harsh
and unfriendly a manner without notice to the Government of the
change of policy, or to the fishermen of the new danger to which they
were thus exposed.
In any view, therefore, which it seems to me can be taken of this
question, I feel justified in pronouncing the action of the Canadian
authorities in seizing and still retaining the David J. Adams to be
not only unfriendly and discourteous, but altogether unwarrantable.
The seizure was much aggravated by the manner in which it was
carried into effect. It appears that four several visitations and
searches of the vessel were made by boats from the Canadian steamer
Lansdowne, in Annapolis Basin, Nova Scotia. The Adams was
finally taken into custody and carried out of the Province of Nova
Scotia, across the Bay of Fundy, and into the port of St. John, New
Brunswick, and without explanation or hearing, on the following
Monday, May 10, taken back by an armed crew to Digby, Nova
Scotia. That, in Digby, the paper alleged to be the legal precept
for the capture and detention or the vessel was nailed to her mast
in such manner as to prevents its contents being read, and the request
of the captain of the David J. Adams and of the United States con-
sul-general to be allowed to detach the writ from the mast for the
purpose of learning its contents was positively refused by the pro-
vincial official in charge. Nor was the United States consul-general
able to learn from the commander of the Lansdowne the nature of
the complaint against the vessel, and his respectful application to
that effect was fruitless.
From all the circumstances attending this case, and other recent
cases like it, it seems to me very apparent that the seizure was not
made for the purpose of enforcing any right or redressing any wrong.
As I have before remarked, it is not pretended that the vessel had been
engaged in fishing, or was intending to fish in the prohibited waters,
or that it had done or was intending to do any other injurious act.
It was proceeding upon its regular and lawful business of fishing in
the deep sea. It had received no request, and of course could have
disregarded no request, to depart, and was, in fact, departing when
seized; nor had its master refused to answer any questions put by
the authorities.* It had violated no existing law, and had incurred
no penalty that any known statute imposed.
It seems to me impossible to escape the conclusion that this and
other similar seizures were made by the Canadian authorities for the
deliberate purpose of harassing and embarrassing the American fish-
ing vessels in the pursuit of their lawful employment. And the in-
jury, which would have been a serious one, if committed under a
mistake, is very much aggravated by the motives which appear to
have prompted it.
I am instructed by my Government earnestly to protest against
these proceedings as wholly unwarranted by the treaty of 1818, and
altogether inconsistent with the friendly relations hitherto existing
784 CORRESPONDENCE, ETC.
between the United States and Her Majesty's Government; to request
that the David J. Adams, and the other American fishing vessels now
under seizure in Canadian ports, be immediately released, and that
proper orders may be issued to prevent similar proceedings in the
future. And I am also instructed to inform you that the United
States will hold Her Majesty's Government responsible for all losses
which may be sustained by American citizens in the dispossession of
their property growing out of the search, seizure, detention, or sale of
their vessels lawfully within the territorial waters of British North
America.
The real source of the difficulty that has arisen is well understood.
It is to be found in the irritation that has taken place among a por-
tion of the Canadian people on account of the termination by tho
United States Government of the treaty of Washington on the 1st
of July last, whereby fish imported from Canada into the United
States, and which so long as that treaty remained in force was ad-
mitted free, is now liable to the import duty provided by the general
revenue laws, and the opinion appears to have gained ground in
Canada that the United States may be driven, by harassing and
annoying their fishermen, into the adoption of a new treaty by which
Canadian fish shall be admitted free.
It is not necessary to say that this scheme is likely to prove as mis-
taken in policy as it is indefensible in principle. In terminating the
treaty of Washington the United States were simply exercising a
right expressly reserved to both parties by the treaty itself, and of
the exercise 01 which by either party neither can complain. They
will not be coerced by wanton injury into the making of a new one.
Nor would a negotiation that had its origin in mutual irritation be
promising of success. The question now is, not what fresh treaty
may or might be desirable, but what is the true and just construction,
as between the two nations, of the treaty that already exists.
The Government of the United States, approaching this question
in the most friendly spirit, cannot doubt that it will be met by Her
Majesty's Government in the same spirit, and feels every confidence
that the action of Her Majesty's Government in the premises will be
such as to maintain the cordial relations between the two countries
that have so long happily prevailed.
I have the honor to be, &c.,
E. J. PHELPS.
Eat I Granville to Lord Lansdowne.
[Telegram.]
3rd June, 1886.
The following telegram has been handed to Lord Rosebery by the
United States Minister. The telegram commences as follows :
"Direct Lord Rosebery's attention immediately to the Bill No. 136
now pending in the Canadian Parliament. This bill assumes power
to execute the Convention of 1818. You will also call his attention
to the circular No. 371, issued by the Commissioner of Customs for
the Dominion, Mr. Johnson, which orders the seizure of vessels on
violation of that Convention. Both of these are unwarranted and
PERIOD FROM 1811 TO 1905. 785
arbitrary assumptions of power against which you are desired to
make an early protest. You are instructed in doing so, to state that
the Government of Great Britain will be held responsible by that of
the United States for whatever losses may be incurred by American
citizens growing out of the dispossession of their property, detention
or sale of their vessels lawfully within British North American terri-
torial waters."
The telegram ends here. Please telegraph the purport of circular
No. 371 referred to.
(Sd.) GRANVILLE.
Earl GranviUe to Lord Lansdowne.
[Telegram.]
4th June, 1886.
The terms of the concluding paragraph of the warning which was
enclosed in your despatch dated 25th March, exclude all foreign ves-
sels as well as those of the United States from Canadian bays. This
is unintentional in all probability, as there is in the Act recited noth-
ing to justify this. It would be well, however, to invite the attention
of your Government to this point with a view to having the warning
amended.
(Sd.) GRANVILLE.
Lord Lansdowne to Earl GranviUe.
[Extract.]
QUEBEC, 8th June, 1886.
MY LORD: In reference to your Lordship's telegrams of the 3rd and
4th inst., in which you have called the attention of my Government
to the Customs Circular No. 371 and to the "Warning" enclosed
therein, I think it desirable to make the following observations in
explanation of the telegraphic replies which I have addressed to Your
Lordship.
In your telegram of the 4th inst., Your Lordship pointed out that
the terms of the concluding paragraph of the "Warning" in question
had the effect of excluding not only vessels belonging to the United
States but all foreign vessels from Canadian bays and harbours, and
you observed that this was probably not intentional as nothing in
the Act recited would justify such an exclusion.
I have ascertained that the "Warning" as originally issued from
the Department of Fisheries after reciting the first Article of the
Convention of 1818, and Sections 2, 3 and 4 of the Canadian Act of
1868, respecting fishing by foreign vessels, contained the following
paragraph:
"Therefore be it known, that by virtue of the Treaty Provisions
and Act of Parliament above recited, all foreign vessels or boats are
forbidden from fishing or taking fish by any means whatever within
three marine miles of any of the coasts, bays, creeks, and harbours
in Canada, or to enter such bays, harbours and creeks except for the
92909°— S. Doc. 870, 61-3, vol 3 11
786 CORRESPONDENCE, ETC.
purpose of shelter and of repairing damages therein, of purchasing
wood and obtaining water, and for no other purposes whatever; of
all of which you will take notice and govern yourself accordingly."
The passage quoted would, as Your Lordship has pointed out, have
affected all foreign vessels, whether belonging to the United States
or not. The mistake was however, detected and the "Warning"
issued in a revised form from which the paragraph which I have
quoted was omitted and replaced by the words or all of which you
will take notice and govern yourself accordingly."
I enclose herewith copies of the warning in its original and in its
amended form. It is possible that Your Lordship or the American
Minister may have seen the warning before it had been amended in
the manner which I have described. The amended form which
merely recites Art. I of the Convention of 1818 and the Canadian
Statute of 1868, appears to me to be entirely free from objection.
The latter of these Statutes is, as Your Lordship is aware, substan-
tially the same as the Imperial Act of 1819 (59 Geo. III., cap. 58)
although the provisions relating to hovering are taken from another
Imperial Statute (9 Geo. III., cap. 35). The law of the United States
as to hovering is, I believe, the same as that embodied in this Statute.
The concluding paragraphs of the circular No. 371 to which, and
not to the warning, Your Lordship's telegram of the 4th of June
may have been intended to refer, are also, I think, open to objection.
After reciting the Dominion Act of 1868, which, like the Imperial
Statute of 1819, applies to foreign vessels generally, the circular pro-
ceeds to mention specially certain acts as violations, not of either of
the Statutes in question, but of the Convention of 1818, and declares
that if "such vessels or boats," that is, any foreign fishing vessels or
boats, are found committing those acts they are to be detained. As,
however, the Convention has reference to the fishing rights of the
United States and not to those of other foreign powers, the passages
which I have quoted are, I think, certainly open to the criticism not
only that they assume that the acts described are violations of the
Convention, but that they seek to apply whatever penalties may be
enforced against parties contravening the Convention to vessels to
which those provisions are not properly applicable.
This point has been considered by my Government with every de-
sire to revise the circular in such a manner as to remove all reason-
able objections to it upon these or other grounds, and I have much
pleasure in informing Your Lordship that the circular will be re-
issued with the following concluding paragraphs in lieu of those re-
ferred to above:
"Having reference to the above you are requested to furnish
any foreign fishing vessels, boats or fishermen found within three
marine miles of the shore within your district with a printed copy
of the warning enclosed herewith.
"If any fishing vessel or boat of the United States is found fishing
or to have been fishing or preparing to fish, or if hovering within the
three mile limit, does not depart within twenty-four hours after
receiving such warning, you will place an officer on board of such ves-
sel and at once telegraph the facts to the Fisheries Department at
Ottawa and await instructions."
The effect of these words will be that every foreign fisherman
found within the three mile limit will receive a warning which will
PERIOD FKOM 1871 TO 1905. 787
make him aware of the state of the law, while every fishing vessel
belonging to the United States found contravening the existing
Canadian Statutes, which, as I have already reminded your Lordship,
in these respects follow closely those passed by the Imperial Parlia-
ment, will, if not departing within twenty-four hours after receiving
such warning, be detained under the conditions described.
I trust that the above explanation will be satisfactory to your
Lordship.
I have, etc.,
(Sd.) LANSDOWNE.
The Right Honorable
Earl GKANVILLE, K. G.,
etc., etc., etc.
Mr. Bayard to Sir L. West.
DEPARTMENT OF STATE,
Washington, June 14, 1886.
SIR: The consul-general of the United States at Halifax communi-
cated to me the information derived by him from the collector of cus-
toms at that port to the effect that American fishing vessels will not
be permitted to land fish at that port of entry for transportation in
bond across the province.
I have also to inform you that the masters of the four American
fishing vessels of Gloucester, Mass., Martha A. Bradley, Rattler, Eliza
Boynton, and Pioneer, have severally reported to the consul-general
at Halifax that the subcollector of customs at Canso had warned them
to keep outside an imaginary line drawn from a point three miles
outside Canso Head to a point three miles outside St. Esprit, on the
Cape Breton coast, a distance of 40 miles. This line for nearly its
entire continuance is distant 12 to 25 miles from the coast.
The same masters also report that they were warned against going
inside an imaginary line drawn from a point three miles outside
North Cape, on Prince Edward Island, to a point three miles outside
of East Point, on the same island, a distance of over 100 miles, and
that this last-named line was for nearly that entire distance about 30
miles from the shore.
The same authority informed the masters of the vessels referred to
that they would not be permitted to enter Bay Chaleur.
Such warnings are, as you must be well aware, wholly unwar-
ranted pretensions of extraterritorial authority and usurpations of
jurisdiction by the provincial officials.
It becomes my duty, in bringing this information to your notice,
to request that if any such orders for interference with the unques-
tionable rights of the American fishermen to pursue their business
without molestation at any point not within three marine miles of
the shores, and within the defined limits as to which renunciation of
the liberty to fish was expressed in the treaty of 1818, may have been
issued, the same may at once be revoked as violative of the rights of
citizens of the United States under convention with Great Britain.
I will ask you to bring this subject to the immediate attention of
788 CORRESPONDENCE, ETC.
Her Britannic Majesty's Government, to the end that proper remedial
orders may be forthwith issued.
It seems most unfortunate and regretable that questions which have
been long since settled between the United States and Great Britain
should now be sought to be revived.
I have, &c., T. F. BAYARD.
Sir L. West to Mr. Bayard.
WASHINGTON, June 15, 1886.
(Received June 16.)
SIR: I have the honor to acknowledge the receipt of your note of
yesterday's date, bringing to my notice certain alleged warnings
given by the Canadian authorities to American fishing vessels, and to
inform you that I have brought the matter to the notice of Her
Majesty's Government.
I have, &c. L. S. SACKVILLE WEST.
Mr. Bayard to Mr. Phelps.
No. 328.1 DEPARTMENT OF STATE,
Washington, June 18, 1886.
SIR : I have received and read with much satisfaction your No. 293
of the 5th instant, inclosing a copy of a note addressed by you on that
day to Lord Rosebery, in reference to the seizures of American fishing
vessels in Canadian waters, and other interference with our commer-
cial rights.
The views and arguments you adduce are fully in accord with the
instructions already sent you, and are so ably advanced and enforced
that I have for the present, and pending Lord Rosebery's reply,
nothing further to suggest on these points.
I now transmit for your information a copy of a note addressed by
me, on the 14th instant, to Sir Lionel West, on the subject of certain
verbal notifications not to approach the coasts of Nova Scotia, which,
as I have been informed by our consul-general at Halifax, were given
to four of our fishing vessels by the subcollector of customs at Canso,
and the information from the collector at Halifax that no American
fishing vessels would be permitted to land fish at that port for trans-
portation in bond across the province.
In reply to my note, Sir Lionel West informed me that the subject
has been brought by him to the notice of Her Majesty's Government.
My notes of the 10th, 20th, and 29th of May last to 'Sir Lionel West
continue without reply, and this, I suppose, is one of the serious im-
pediments to prompt and practical exchange of views which results
from the triangular attitude of the United States, the imperial Gov-
ernment of Great Britain, and the American dependencies of the
latter power, to\vards all questions in which the interests of the prov-
inces are involved.
The last note of the British minister, stating that he has brought
the attention of Her Majesty's Government to the questions raised by
PERIOD FROM 1871 TO 1905. 789
the action of provincial officials will, I hope, be productive of authori-
tative expression, and afford some solid basis for our judgment and
progressive action, which has hitherto been so delayed from the some-
what anomalous relations of the Canadian authorities towards a con-
vention to which they are not actual or responsible parties.
I am, &c.,
T. F. BAYARD.
Lord Lansdowne to Earl Granwlle.
(No. 204) CASCAPEDIA, 18th June, 1886.
MY LORD: I have the honour to forward herewith for Your Lord-
ship's information a copy of the amended Customs circular No.
371, issued under the authority of the Government of Canada to
the Collectors of Customs throughout the Dominion.
I have, etc.
(Sd.) LANSDOWNE.
The Right Honorable
Earl GRANVILLE, K. G.
[Enclosure.]
Circular No. 371.
CUSTOMS DEPARTMENT,
Ottawa, 7th May, 1886.
SIR, — The Government of the United States having by notice ter-
minated Articles 18 to 25, both inclusive, and Article 30, known as
the Fishery Articles of the Washington Treaty, attention is called to
the following provision of the Convention between the United States
and Great Britain, signed at London, on the 20th October, 1818:
Article 1st. "Whereas differences have arisen respecting the lib-
erty claimed by the United States, for the inhabitants thereof, to
take, dry and cure fish, on certain coasts, bays, harbours and creeks,
of His Britannic Majesty's Dominion, in America, it is agreed between
the higli Contracting Parties, that the inhabitants of the said United
States shall have, forever, in common with the subjects of His Bri-
tannic Majesty, the liberty to take fish of every kind on that part of
the Southern coast of Newfoundland which extends from Cape Ray
to the Rameau Island, on the western and northern coast of New-
foundland from the said Cape Ray to the Quirpon Islands, on the
shores of the Magdalen Islands, and also on the coasts, bays, har-
bours and creeks, from Mount Joly, on the southern coast of Labrador,
to and through the Straits of Belle Isle, and thence northwardly
indefinitely along the coast, without prejudice, however, to any of
the exclusive rights of the Hudson's Bay Company; and that the
American fishermen shall also have liberty, forever, to dry and cure
fish in any of the unsettled bays, harbours, and creeks of the southern
part of the coast of Newfoundland hereabove described, and of the
coast of Labrador; but so soon as the same, or any portion thereof,
shall be settled, it shall not be lawful for the said fishermen to dry
790 CORRESPONDENCE, ETC.
or cure fish at such portion so settled, without previous agreement
for such purpose, with the inhabitants, proprietors, or possessors of
the ground.
"And the United States hereby renounce forever any liberty
heretofore enjoyed or claimed by the inhabitants thereof, to take,
dry or cure fish, on or within three marine miles, of any of the coasts,
bays, creeks or harbours of His Britannic Majesty's dominions
in America, not included within the above mentioned limits; provided,
however, that the American fishermen shall be admitted to enter such
bays or harbours, for the purpose of shelter and of repairing damages
therein, of purchasing wood, and of obtaining water and for no other
purpose whatever. But they shall be under such restrictions as
may be necessary to prevent their taking, drying or curing fish therein,
or in any manner whatever abusing tne privileges hereby reserved
to them.
Attention is also called to the following provisions of the Act
of the Parliament of Canada, Cap. 61, of the Acts of 1868, intituled:
"An Act respecting fishing by foreign vessels."
2nd. "Any commissioned officer of Her Majesty's Navy, serving
on board of any vessel of Her Majesty's Navy, cruising and being
in the waters of Canada for the purpose of affording protection to
her Majesty's subjects engaged in the fisheries, or any commissioned
officer of Her Majesty's Navy, Fishery Officer, or Stipendiary Magis-
trate on board oif any vessel belonging to or in the service of the
Government of Canada and employed in the service of protecting
the fisheries or any officer of the Customs of Canada, Sheriff, Magis-
trate, or other person duly commissioned for that purpose, may go
on board of any ship, vessel or boat, within any harbour in Canada,
or hovering (in British waters) within three marine miles of any of the
coasts, bays, creek or harbours in Canada, and stay on board so
long as she may remain within such place or distance."
3rd. " If such ship, vessel or boat be bound elsewhere, and shall con-
tinue within such harbour, or so hovering for twenty-four hours after
the master shall have been required to depart, any one of such officers
or persons as are above mentioned may bring such ship, vessel or
boat into port and search her cargo, and may also examine the master
upon oath touching the cargo and voyage; and if the master or per-
son in command shall not truly answer the questions put to him in
such examination, he shall forfeit four hundred dollars; and if such
ship, vessel or boat be foreign, or not navigated according to the laws
of the United Kingdom or of Canada, and have been found fishing,
or preparing to fish, or to have been fishing (in British waters) within
three marine miles of any of the coasts, bays, creeks or harbours of
Canada, not included within the above mentioned limits, without a
license, or after the expiration of the period named in the last license
granted to such ship, vessel or boat under the first section of this
Act, such ship, vessel or boat, and the tackle, rigging, apparel,
furniture, stores and cargo thereof shall be forfeited."
4th. "All goods, ships, vessels and boats, and the tackle, rigging,
apparel, furniture, stores and cargo liable to forfeiture under this
Act, may be seized and secured by any officers or persons mentioned
in the second section of this Act; and every person opposing any
PERIOD FROM 1871 TO 1905. 791
officer or person in the execution of his duty under this Act, or aiding
or abetting any other person in any opposition, shall forfeit eight
hundred dollars, and shall be guilty or a misdemeanor, and upon
conviction be liable to imprisonment for a term not exceeding two
years."
Having reference to the above, you are requested to furnish any
foreign fishing vessels, boats or fishermen found within three marine
miles of the shore, within your district, with a printed copy of the
"warning" enclosed herewith. If any fishing vessel or boat of the
United States is found fishing, or to have been fishing, or preparing
to fish, or if hovering within the three mile limit, does not depart
within twenty-four hours after receiving such "warning", you will
please place an officer on board such vessel, and at once telegraph the
facts to the Fisheries Department at Ottawa, and await instructions.
(Sd.) J. JOHNSON,
Commissioner of Customs.
Mr. Bayard to Mr. Phelps.
No. 329.] DEPARTMENT OP STATE,
Washington, June 18, 1886.
SIR: With reference to previous correspondence concerning the
fisheries question, I transmit to you herewith a copy of a dispatch
from our consul at Halifax, in relation to the recent instructions to
Canadian officials concerning American fishing vessels.
I am, &c.,
T. F. BAYARD.
[Inclosure.]
Mr. Phelan to Mr. Porter.
No. 85.] UNITED STATES CONSULATE-GENERAL,
Halifax, June 15, 1886. (Received June 18.)
SIR: I have the honor to report that I sent with dispatch No. 83,
dated May 27, 1886, a circular issued by J. Johnson, Esq., Canadian
commissioner of customs, known as Circular No. 371, dated May 7,
1886, containing instructions to customs collectors concerning foreign
fishing vessels. I now inclose herewith a confidential circular of the
same date and number issued by the same officer, with a note saying
" that the confidential circular was to be substituted for the one of the
same date and number previously received."
It will be seen by comparing the circulars that the two last para-
graphs in the first circular issued are stricken out and the following
substituted in lieu thereof:
" Having reference to the above you are requested to furnish every
foreign fishing vessel, boat, or fisherman found within three marine
miles from shore with a copy of the warning inclosed herewith. If
any fishing vessel or boat of the United States is found fishing, or to
have been fishing, or preparing to fish, or, if hovering within the
792 CORRESPONDENCE, ETC.
three-mile limit, does not depart within twenty-four hours after
receiving such warning, you will place an officer on board such vessel
and at once telegraph the facts to the fisheries department at Ottawa
and await instructions."
Everything about shipping crews, purchasing supplies, and trading
is eliminated in the confidential circular.
I am, &c., M. H. PHELAN,
Consul-General.
Mr. Bayard to Sir L. West.
DEPARTMENT OF STATE,
Washington, July #, 1886.
SIR : It is my unpleasant duty promptly to communicate to you the
telegraphic report to me by the United States consul-general at Hali-
fax, that the schooner City Point, of Portland, Me., arrived at the
port of Shelburne, Nova Scotia, landed two men, obtained water, and
is detained by the authorities until further instructions are received
from Ottawa.
The case as thus reported is an infringement on the ordinary rights
of international hospitality, and constitutes a violation of treaty
stipulations and commercial privileges, evincing such unfriendliness
to the citizens of the United States as is greatly to be deplored, and
which I hold it to be the responsible duty of the Government of Great
Britain promptly to correct.
I have, &c., T. F. BAYARD.
Mr. Willard to Mr. Bayard.
[Telegram.]
PORTLAND, ME., July 3, 1886.
(Received July 4.)
We have received the following dispatch from Shelburne, Nova
Scotia, to-day, viz :
" Gushing boarded last night 8 miles from custom-house. Brought
here seized to-day. Charge, seeking bait and not reporting at custom-
house. Have not bought anything. Wire instructions.
" C. B. JKWETT."
She left here last Tuesday with the understanding you had settled
the right of our vessels to buy bait. How long are we to be tor-
mented in this kind of style? If it is to continue long we should
prefer to haul our vessels up. It seems to us about time the President
issued his nonintercourse proclamation and settled this thing one way
or the other.
Please instruct us what to do under the circumstances, as she is a
valuable vessel.
E. G. WILLARD.
PERIOD FROM 1871 TO 1905. 793
Sir L. West to Mr. Bayard.
WASHINGTON, July 3, 1886.
(Received July 0.)
SIR: I have the honor to acknowledge the receipt of your note of
the 2d, reporting the detention of the American schooner City Point,
of Portland, Me., by the authorities of Shelburne, Nova Scotia.
I have, &c.,
L. S. SACKVILLK WEST.
Sir L. West to Mr. 'Bayard.
WASHINGTON, July 3, 1S86.
(Received July 6.)
SIR: With reference to your note of the 29th of May, I have the
honor to inform you that I am instructed by the Earl of Rosebery to
state that the matters therein referred to will receive the careful at-
tention of Her Majesty's Government after the necessary communica-
tion with the Dominion Government.
I have, &c.,
L. S. SACKVILLE WEST.
Earl Granvitle to Lord Lansdowne.
[Telegram.]
6th July, 1886.
It is asserted by the United States' Minister that American vessels
have been warned by the Collector of Customs at Cansp to keep three
miles outside a line drawn from Canso to St. Esprit, also outside
a similar line extending from North Cape to East Point in Prince
Edward Island.
(Sd.) GRANVILLE.
Mr. Woodbury to Mr. Bayard.
BOSTON, July 7, 1886.
(Received July 10".)
SIR: I forward twelve affidavits of respectable fishermen of
Gloucester laying the foundation to show that the Canadian authori-
ties have this year, without notice, radically reversed their administra-
tion of laws toward American bait buyers and others. That thereby
some of our fishermen have been entrapped and seized is well known
to you. I retain a duplicate set, for use in case a suit is brought for
a penalty of $400 against an assumed master of the D. J. Adams,
which the customs authorities allege has been incurred.
I have sent these in the expectation that, in the varying phases these
Canadian assaults on our commerce assume, these facts may be use-
ful to the Department, if not in the matter of the D. J. Adams.
I have, &c.,
CHAS. LEVI WOODBURY.
794 CORRESPONDENCE, ETC.
[Inclosure No. 1.]
I, Frank Foster, of Gloucester, Commonwealth of Massachusetts,
in the United States of America, on my oath do say I am a fisherman,
and in the course of my calling during the last fifteen years have
entered many places and ports in Nova Scotia for the purpose of
buying bait to be used by the vessel I was on in the deep-sea fishery.
I further say we were always allowed to purchase what bait we
wanted, and before this year I never heard of or knew an instance
where such vessel lying to or anchoring within the three-mile limits
of the coast for such purpose was required to report at the nearest
custom-house, or to make entry there, or was warned off. I have
been in at the following places on that coast, viz : Shelburne, Digby,
Grand Manan, Bliss Island, Argyle; and further says not.
FRANK FOSTER.
[L. s.] AARON PARSONS,
Notary Public.
[Inclosure No. 2.]
I, Zebulon Tarr, of Gloucester, Commonwealth of Massachusetts,
in the United States of America, on my oath do say I am a fisherman,
and in the course of my calling during the last thirty-one years have
entered many places and ports in Nova Scotia for the purpose of
buying bait to be used by the vessel I was on in the deep-sea fishery.
I further say we were always freely allowed to purchase what bait
we wanted, and before this year I never heard of or knew an instance
where such vessel lying to or anchoring within the three-mile limits
of the coast for such purpose was required to report at the nearest
custom-house, or to make entry there, or was warned off. I have
been in at the following places on that coast, viz : Canso, Cape North
Bay, St. Anne, Margaree; and further says not.
ZEBULON TARR.
[L. s.] AARON PARSONS,
Notary Public.
[Inclosure No. 3.]
I, John Collins, of Gloucester, Commonwealth of Massachusetts, in
the United States of America, on my oath do say I am a fisherman,
and in the course of my calling during the last thirty-seven years have
entered many places and ports in Nova Scotia for the purpose of buy-
ing bait to be used by the vessel I was on in the deep-sea fishery.
I further say we were always freely allowed to purchase what bait
we wanted, and before this year I never heard of or knew an instance
where such vessel lying to or anchoring within the three-mile limits
of the coast for such purpose was required to report at the nearest
custom-house, or to make entry there, or was warned off. I have been
in at the following places on that coast, viz : Canso, Georgetown, Yar-
mouth, Digby, Cape Negro, Tusket Island, Scatari, Sydney, Louis-
burg, White Head; and further says not.
JOHN COLLINS.
[L. s.] AARON PARSONS,
Notary Public.
PERIOD FROM 1871 TO 1905. 795
[Inclosure No. 4.]
I, Jesse Lewis, of Gloucester, Commonwealth of Massachusetts, in
the United. States of America, on my oath do say I am a fisherman,
and in course of my calling during the last forty-five years have
entered many places and ports in Nova Scotia for the purpose of buy-
ing bait to be used by the vessel I was on in the deep-sea fishery.
I further say we were always freely allowed to purchase what
bait we wanted, and before this year I never heard of or knew an
instance where such vessel lying to or anchoring within the three-
mile limits of the coasts for such purpose was required to report at
the nearest custom-house, or to make entry there, or was warned off.
I have been in at the following places on that coast, viz : Yarmouth,
Cape Negro, Halifax, Shelburne, Liscomb, Country Harbor, White
Head, Canso, La Have, Liverpool, Ransberry Harbor, Souris, George-
town, Charlottetown, Manepeck; and further says not.
JESSE LEWIS.
[L. s.] AARON PARSONS,
Notary Public.
[Inclosure No. 5.]
I, George H. Martin, of Gloucester, Commonwealth of Massachu-
setts, in the United States of America, on my oath do say I am a
fisherman, and in the course of my calling during the last 23 years
have entered many places and ports in Nova Scotia for the purpose
of buying bait to be used by the vessel I was on in the deep-sea
fishery.
I further say we were always freely allowed to purchase what bait
we wanted, and before this year I never heard of or knew an in-
stance where such vessel lying to or anchoring within the three-mile
limits of the coast for such purposes was required to report at the
nearest custom-house or to make entry there, or was warned off. I
have been in at the following places on that coast, viz : Digby, Brier
Island, Tusket Island, Pubnico, Barrington, John's Island, Shel-
burne, Liverpool, Margaret Bay, Dover, Prospect, Cat's Harbor,
Isaac's Harbor, Liscomb, White Haven, Cape Canso, St. Peter's
Bay, Louisburg, Judique, Sydney, St. Anne's Bay; and further
says not.
GEO. H. MARTIN.
[L. s.] AARON PARSONS,
Notary Public.
[Inclosure No. 6.]
I, James T. Simpson, of Gloucester, Commonwealth of Massachu-
setts, in the United States of America, on my oath do say I am a
fisherman, and in the course of my calling during the last fourteen
years have entered many places and ports in Nova Scotia for the
purpose of buying bait to be used by the vessel I was on in the deep-
sea fishery.
I further say we were always freely allowed to purchase what bait
we wanted, and before this year I never heard of or knew an instance
where such vessel lying to or anchoring within the three-mile limits
of the coast for such purpose was required to report at the nearest
796 CORRESPONDENCE, ETC.
custom-house, or to make entry there, or was warned off. I have
been in at the following places on that coast, viz: Digby, Campo-
bello Island, St. Andrews, Bliss Island, Grand Manan, Beaver Is-
land, St. Mary's Bay, Yarmouth, Cape Negro, Shelburne, Cape La
Have, Sambro, White Head, Canso, St. Peter's Bay, Arichat, Louis-
burg, Sydney, St. Anne's Bay, Port Hood ; and further says not.
AARON PARSONS.
[L. s.] AARON PARSONS,
Notary Public.
[Inclosure No. 7.]
IT Simeon McLoud, of Gloucester, Commonwealth of Massachu-
setts, in the United States of America, on my oath do say I am a
fisherman, and in the course of my calling during the last fourteen
years have entered many places and ports in Nova Scotia for the
purpose of buying bait to be used by the vessel I was on in the deep-
sea fishery.
I further say we were always freely allowed to purchase what bait
we wanted, and before this year I never heard of or knew an instance
where such vessel lying to or anchoring within the three-mile limits
of the coast for such purpose was required to report at the nearest
custom-house, or to make entry there, or was warned off. I have been
in at the following places on that coast, viz: Wood Harbor, Green
Cove, John's Island, Rayton's Island; and further says not.
SIMEON McLouD.
[L. s.] AARON PARSONS,
Notary Public.
[Inclosure No. 8.]
I, Nathaniel P. Smith, of Gloucester, Commonwealth of Massachu-
setts, in the United States of America, on my oath do say I am a fisher-
man, and in the course of my calling during the last thirty-five years
have entered many places and ports in Nova Scotia for the purpose
of buying bait to be used by the vessel I was on in the deep-sea fishery
I further say we were always freely allowed to purchase what bait
we wanted, and before this year I never heard of or knew an instance
where such vessel lying to or anchoring within the three-mile limits
of the coast for such purpose was required to report at the nearest
custom-house, or to make entry there, or was warned off. I have been
in at the following places on that coast, viz : Digby, Brier Island. St.
Andrews, Campobello Island, St. John, New Brunswick, Weyinouth,
Yarmouth, Argyle, Pubnico, Barrington, Gaspe, Cape Negro. Shel-
burne, Liverpool, Dover Harbor, Lunenburg, La Have. Prospect,
Sambro, Halifax, Beaver Harbor, Country Harbor. White Head,
Cansp, Sydney, Arichat. Louisburg, Charlottetown. Georgetown,
Souris, Cascumpec, Port Daniel, Ship Harbor : and further says not.
NATHANIEL P. SMITH.
[L. s.] AARON PARSONS,
Notary Public.
PERIOD FROM 1871 TO 1905. 797
[Inclosure No. 9.]
I, Thomas Jones, of Gloucester, Commonwealth of Massachusetts,
in the United States of America, on my oath do say I am a fisherman,
and in the course of my calling during the last fourteen years have
entered many places and ports in Nova Scotia for the purpose of buy-
ing bait to be used by the vessel I was on in the deep-sea fishery.
I further say we were always freely allowed to purchase what bait
we wanted, and before this year I never heard of or knew an instance
where such vessel lying to or anchoring within the three-mile limits
of the coast for such purpose was required to report at the nearest
custom-house, or to make entry there, or was warned off. I have been
in at the following places on that coast, viz: Digby, Brier Island,
Campobello Island, St. Andrews, Beaver Harbor, Bliss Island, Head
Harbor, Yarmouth, St. Mary's Bay, Grand Manan, Cape Negro, Shel-
burne, Liverpool, Dover, Halifax, Canso, Sydney, Jeddore Harbor,
Ship Harbor, Louisburg, Georgetown, Souris, Chaleur Bay ; and fur-
ther says not.
THOMAS JONES.
[L. s.] AARON PARSONS,
Notary Public.
\ In closure No. 10.]
I, Scott Geyer, of Gloucester, Commonwealth of Massachusetts, in
the United States of America, on my oath do say I am a fisherman,
and in the course of my calling during the last twenty-five years have
entered many places and ports in Nova Scotia for the purpose of buy-
ing bait to be used by the vessel I was on in the deep-sea fishery.
I further say we were always freely allowed to purchase what bait
we wanted, and before this year I never heard of or knew an instance
where such vessel lying to or anchoring within the three-mile limits
of the coast for such purpose was required to report at the nearest
custom-house, or to make entry there, or was warned off. I have been
in at the following places on that coast, viz: Grand Manan, Head
Harbor, Campobello Island, Beaver Harbor, Digby, Bliss Island,
Brier Island, Barrington, Cape Negro, Prospect, Cape Canso, Gut of
Canso, White Head, Halifax, Liverpool, Shelburne, Georgetown,
Souris, Charlottetown, Malpeque, Chaleur Bay ; and further says not.
SCOTT
[L. s.] AARON PARSONS,
Notary Public.
[Inclosure No. 11.]
I, Edward Cantillion, of Gloucester, Commonwealth of Massachu-
setts, in the United States of America, on my oath do say I am a
fisherman, and in the course of my calling during the last thirteen
years have entered many places and ports of Nova Scotia for the pur-
pose of buying bait to be used by the vessel I was on in the deep-sea
fishery.
I further say we were always freely allowed to purchase what bait
we wanted, and before this year I never heard of or knew an in-
stance where such vessel lying to or anchoring within the three-mile
limits of the coast for such purpose was required to report at the
798 CORRESPONDENCE, ETC.
nearest custom-house, or to make entry there, or was warned off. I
have been in at the following places on that coast, viz : Grand Manan
Island, Digby, Brier Island, St. Mary's Bay, Green Cove, Yarmouth,
Shelburne, Liverpool, Cole Harbor, Dover, Arichat, Canso, Bedeque,
St. Anns, Sydney; and further says not.
EDWAKD CANTILLION,
Schooner Sylvester.
[L. s.] AARON PARSONS,
Notary Public.
[Inclosure No. 12.]
I, Jeffrey F. Gerroir, of Gloucester, Commonwealth of Massachu-
setts, in the United States of America, on my oath do say I am a fish-
erman, and in the course of my calling during the last fourteen years
have entered many places and ports in Nova Scotia for the purpose of
buying bait to be used by the vessel I was on in the deep-sea fishery.
I further say we were always freely allowed to purchase what bait
we wanted, and before this year I never heard of or knew an instance
where such vessel lying to or anchoring within the three-mile limits
of the coast for such purpose was required to report at the nearest
custom-house, or to make entry there, or was warned off. I have
been in at the following places on that coast, viz : St. Andrews, New
Brunswick; St. John, New Brunswick; Digby, Yarmouth, Barring-
ton, Shelburne, Liverpool, La Have, Lunenburg, Halifax, Dover,
Arichat, Canso, Bedeque, St. Anne, Sydney, Port Hood, Louisburg,
Charlottetown, Souris, Georgetown; and further says not.
JEFFREY F. GERRIOR.
[L. s.] AARON PARSONS,
Notary Public.
Mr. Boutelle to Mr. Bayard.
[Telegram.]
HOUSE OF REPRESENTATIVES,
Washington, July 10, 1886.
I have just received a dispatch from Eastport, Me., stating that
American boats after herring for sardines at St. Andrews, New
Brunswick, were driven away last night by the Dominion cruiser
Middleton, and it is announced that no American boats will be
allowed to take herring for any purpose. I earnestly invoke the
immediate attention of the Department to this matter.
C. A. BOUTELLE.
PERIOD FROM 1871 TO 1905. 799
Mr. Bayard to Sir L. West.
DEPARTMENT or STATE,
Washington, July 10, 1886.
SIR: On the 2d of June last I had the honor to inform you that
dispatches 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 Ca-
nadian 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, New Brunswick, for the pur-
pose of there purchasing herring from the Canadian weirs, for can-
ning, 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 have, &c., T. F. BAYARD.
Mr. Boutelle to Mr. Bayard.
HOUSE or REPRESENTATIVES,
Washington-, July 14, 1886. (Received. July 5.)
SIR : Acknowledging receipt of your letter of 13th instant, stating
that the view presented by me will receive due consideration, I beg to
inclose herewith the affidavit of Stephen R. Balkam, of Eastport, set-
ting forth the facts of the refusal of the commander of the cruiser
Middleton to permit him to purchase herring at St. Andrews, New
Brunswick, on Friday, July 9, 1886, as referred to in the telegram
forwarded by me to the Department on the 10th instant.
I am, &c.,
C. A. BOUTELLE.
tlnclosure.]
I, Stephen R. Balkam, of Eastport, in the county of Washington,
State of Maine, on oath declare that on Friday morning, July 9,
1886, I was at St. Andrews, N. B. My business was to procure her-
ring for canning. I am employed by Hiram Blanchard & Son. The
Dominion cruiser Middleton was at anchor near the beacon at St.
Andrews. A boat from the Middleton, commanded by Capt. William
Kent, came alongside of my boat and asked if my boat was American,
and where my boat was owned. I replied that the boat was owned
at Eastport, Me. He then said I could not take any herring, and if
I took any would be liable to be seized. He told me if I wished to get
herring I must get an English boat ; that I could not get herring with
an American boat. It had been my practice to buy the herring of
men who caught them in seines, they delivering the herring in the
800 CORRESPONDENCE, ETC.
gunwale of my boat. On the day the Middleton drove me away I
was paying $10 per hogshead for the herring. The men of whom I
bought them were Dominion fishermen. The captain of the Middle-
ton then left me and went to other American boats and ordered them
away. They left without having procured any fish. I took an Eng-
lish boat in tow that had taken fish from the seine, towed her into
American waters, then took her fish, and came to Eastport.
STEPHEN K. BALKAM.
Sworn and subscribed before me this 12th day of July, 1886.
K B. NUTT,
Justice of the Peace.
Lord Lansdowne to Earl GranviUe.
[Telegram.]
12th July, 1886.
With respect to Your Lordship's telegram of the 6th instant, I have
ascertained that no warning was issued by the Collector of Customs
at Canso other than the official warning which has been seen by you.
In conversation with the master of a fishing vessel the Collector
expressed his opinion that the headland line ran from Cranberry
Island to St. Esprit, but this was not authorized by my Government
in any manner.
(Sd.) LANSDOWNE.
Amendment to circular No. 371.
CUSTOMS DEPARTMENT, OTTAWA,
July 12, 1886.
SIR: In order to avoid any misinterpretation of the concluding
paragraph of my circular No. 371, dated 7th May last, you will sub-
stitute the following therefor:
If any fishing vessel or boat of the United States is found fishing,
or to have been fishing, or to be preparing to fish, within three marine
miles of the shore within your district, you will please place an officer
in charge thereof, and at once telegraph the facts to the Fisheries
Department at Ottawa and await instructions.
To any foreign fishing vessels, boats or fishermen who may come
within three marine miles of the shore of your district (but not
fishing, preparing to fish, or having fished within such limit) you are
requested to furnish a copy of the Warning" and if any such vessel
or boat shall not depart within 24 hours after receiving such
"Warning" even though such vessel or boat is not engaged in
fishing, preparing to fish, or having fished within the three-mile
limit, you will place an officer in charge thereof, and at once telegraph
the facts as before mentioned; or if it be ascertained, subsequently
to serving the "Warning," that any vessel or boat served therewith,
has been fishing or preparing to fish before or after such service,you
are not to allow the twenty-four hours to expire, but put an officer
on board at once and act as directed.
(Sd.) J. JOHNSON,
Commissioner of Customs.
PERIOD FROM 1871 TO 1905. 801
Earl GranviUe to Lord Lansdowne.
DOWNING STREET, 15th July, 1S86.
MY LORD: I have the honour to acknowledge the receipt of your
despatch of the 8th of June last, and to acquaint you that Her
Majesty's Government observe with satisfaction the amendments
which have been made in the Customs Circular No. 371 and in the
warning to be given to the United States' fishing vessels frequenting
the waters of Canada.
I have, etc.
(Sd.) GRANVILLE.
His Excellency
The GOVERNOR GENERAL.
Earl GranviUe to Lord Lansdowne.
DOWNING STREET, 15th July, 1886.
MY LORD: With reference to my telegram of the 6th of July and
to your telegraphic reply of the 12th instant, relating to warnings
alleged to have been given to fishing vessels of the United States by
the Collector of Customs at Canso, I have the honour to transmit
to you the accompanying copy of a letter from the Foreign Office
with its enclosure on which my telegram was founded.
I should be glad to receive a report from your Government at
their early convenience on the subject of these papers.
I have, &c.,
(Sd.) GRANVILLE.
His Excellency
The GOVERNOR GENERAL.
[Enclosure No 1.]
The Foreign Office to the Colonial Office.
FOREIGN OFFICE, 80ih June, 1886.
SIR: With reference to my letter of the 19th instant, I am directed
by the Secretary of State for Foreign Affairs to transmit to you to
be laid before Earl GranviUe, acopy«f a despatch from Her Majesty's
Minister at Washington, relative to the headland question in con-
nection with the North American Fisheries.
I am, &c.,
(Sd.) J. PAUNCEFOTE.
The UNDER SECRETARY OF STATE
FOR THE COLONIES.
[Enclosure No. 2.]
The Foreign Office to Colonial Office.
FOREIGN OFFICE, 30th June, 1886.
SIR : With reference to your letter of the 26th instant, I am directed
by the Earl of Rosebery, to state that His Lordship would be glad if
Karl GranviUe could ascertain whether any instructions have been
U29090— S. Do, . 870, 61-3, voi 3 12
802 COBBESPONDENCE, ETC.
given by the Canadian Government to Customs Officers on the sub-
ject of headland lines which might have given rise to the alleged
claims to exclude United States' fishing vessels from the waters
covered by lines drawn from Cape Canso to St. Esprit, and from
North Cape to East Cape of Prince Edward Island.
I am, &c.,
(Sd.) J. PAUNCEFOTE.
The UNDER SECRETARY OF STATE
FOR THE COLONIES.
[Enclosure No. 3.]
(Treaty No. 55.) Sir L. West to Earl Roseberry.
WASHINGTON, 15th June, 1886.
MY LORD: I have the honour to enclose to Your Lordship, here-
with, copy of a note which I have received from the Secretary of
State requesting the attention of Her Majesty's Government to cer-
tain warnings alleged to have been given to American fishing vessels
by the Canadian authorities to keep outside imaginary lines drawn
from headlands to headlands, which he characterizes as wholly un-
warranted pretensions of extra territorial authority and usurpations
of jurisdiction.
I have, &c.,
(Sd.) L. S. S. WEST.
The Right Honourable
The SECRETARY OF STATE
FOR FOREIGN AFFAIRS.
[Enclosure No. 4.]
Mr. Bayard to Sir L. West.
WASHINGTON, 14fh June, 1886.
SIR: The Consul General of the United States, at Halifax, com-
municates to me the information derived by him from the Collector
of Customs at that port, to the effect that American fishing vessels
will not be permitted to land fish at that port of entry for transporta-
tion, in bond, across the Province.
I have also to inform you that the masters of the American fishing
vessels of Gloucester, Mass., "Martha A. Bradley," "Rattler,"
"Eliza Boynton" and "Pioneer," have severally reported to the
Consul General, at Halifax, that the Sub-Collector of Customs, at
Canso, had warned them to keep outside an imaginary line drawn
from a point three miles outside Canso Head to a point three miles
outside St. Esprit, on the Cape Breton coast, a distance of forty
miles. This line, for nearly its entire continuance, is distant twelve
to twenty-five miles from the coast. The same masters also report
that they were warned against going inside an imaginary line drawn
from a point three miles outside North Cape, on Prince Edward
Island, to a point three miles outside East Point, on the same island,
a distance of over one hundred miles, and that this last named line
was, for nearly that entire distance, about thirty miles from the shore.
The same authority informed the masters of the vessels referred to
that they would not be permitted to enter Bay Chaleur.
PEKIOD FROM 1871 TO 1905. 803
Such warnings are, as you must be well aware, wholly unwarranted
pretensions of extra-territorial authority and usurpation of juris-
diction by the provincial officers.
It becomes my duty in bringing this information to your notice, to
request that if any such orders for interference with the unquestionable
rights of the American fishermen to pursue their business without
molestation, at any point not within three marine miles of the shores,
and within the defined limits as to which renunciation of the liberty
to fish was expressed in the Treaty of 1818, may have been issued, the
same may at once be revoked as violation of the rights of citizens of
the United States under Convention with Great Britain.
I will ask you to bring this subject to the immediate attention of
Her Britannic Majesty's Government, to the end that proper remedial
orders may be forthwith issued.
It seems most unfortunate and regrettable that questions which
have been long since settled between the United States and Great
Britain should now be sought to be revived.
I have, &c.,
(Sd.) T. F. BAYARD.
The Honourable
Sir LIONEL S. SACKVELLE WEST, K.C.M.G.
Mr. Bayard to Mr. P helps.
[Telegram.]
WASHINGTON, July 15, 1886.
PHELPS, Minister, London.
You will state to Lord Rosebery that realizing fully any embar-
rassment or delays, attendant upon pending changes of British ad-
ministration, it is our duty to call upon the 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 trad-
ing but not violating or contemplating violation of any law or treaty.
Our readiness, long since expressed, to endeavor to come to a just and
fair joint interpretation of treaty-rights and commercial privileges
is illy met by persistent and unfriendly action of Canadian authori-
ties which is rapidly producing a most injurious and exasperating
effect.
I am without reply from the British Minister who is now absent.
BAYARD.
Mr. Bayard to Mr. Ear ding e.
DEPARTMENT OF STATE,
Washington, July 16, 1886.
SIR: I have just received through the honorable C. A. Boutelle,
M. C., the affidavit of Stephen R. Balkam, alleging his expulsion from
the harbor of St. Andrews, New Brunswick, by Captain Kent, of the
Dominion cruiser Middlcton, and the refusal to permit him to pur-
804 CORRESPONDENCE, ETC.
chase fish caught and sold by Canadians, for the purpose of can-
ning 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 in-
tending in any way to fish or violate any local law or regulation or
treaty stipulation.
1 trust instant instructions to prevent, the recurrence of such un-
friendly and unlawful treatment of American citizens may be given to
the offending officials at St. Andrews, and reparation be made to Mr.
Balkam.
I have, &c., T. F. BAYARD.
Mr. Harding e to Mr. Bayard.
BRITISH LEGATION,
Washington, July 17\ 1886. (Received July 19.)
SIR: I have the honor to acknowledge the receipt of your note of
yesterday's date, protesting against the action of Captain Kent, of the
Dominion cruiser General Middleton, in expelling Stephen R. Balkam
from the harbor of St. Andrews, New Brunswick, and in refusing to
permit him to purchase fish, caught and sold by Canadians, for the
purpose of canning as sardines.
I have, &c., CHARLES HARDINGE.
Earl of Rosebery to Mr. Phelps.
FOREIGN OFFICE, July 23, 18S6.
SIR, I have the honour to acknowledge the receipt of your note of
the 16th instant, inclosing a copy of a telegram from Mr. Bayard,
in which he calls upon Her Majesty's Government to put a stop to
the action of Canadian authorities towards United States' fishermen,
which he characterizes as unjust, arbitrary, and vexatious.
Mr. Bayard further states that the readiness of the United States'
Government to endeavour to come to a just and fair joint interpreta-
tion of Treaty rights and commercial privileges is ill met by per-
sistent and unfriendly action of the Canadian authorities, which is
rapidly producing a most injurious and exasperating effect.
I cannot help regretting that the tone of this communication should
not have more corresponded with the conciliatory disposition of Her
Majesty's Government, for the expressions which I have cited can
hardly tend to facilitate a settlement of the difficult questions in-
volved.
I beg, however, to state that the views of the Canadian Government
upon the whole matter will very shortly be communicated to the
United States' Government in a despatch which I have addressed to
Her Majesty's Minister at Washington, in reply to the various com-
munications which he has received from Mr. Bayard. I shall have
the honour to place a copy of the despatch in question in your hands.
As regards the disposition expressed by Mr. Bayard to come to
a just and fair joint interpretation of Treaty rights, Her Majesty's
Government have already displayed their full readiness to negotiate
PERIOD FROM 1871 TO 1905. 805
on more than one occasion, and their view of Treaty rights has been
explained both in my conversations with yourself and in despatches.
I trust, therefore, that this expression of the wishes of your Gov-
ernment, corresponding as it does so entirely with our own desire,
indicates the willingness of the United States to enter as speedily as
possible into definite arrangements which may lead to negotiations
on a practical basis for the settlement of this question.
I have, &c.,
ROSEBERY.
E. J. PIIELPS, Esq.
Mr. Bayard to Sir L. West.
DEPARTMENT OF STATE,
Washington, July 30, 1886.
SIR : It is my duty to draw your attention to an infraction of the
stipulations of the treaty between the United States of America and
Great Britain, concluded October 20, 1818.
By the provisions of Article I of that convention the liberty to
take fish of every kind, forever, in common with the subjects of His
Britannic Majesty is secured to the inhabitants of the United States
" on that part of the southern coast of Newfoundland, which extends
from Cape Ray to the Rameau Islands, on the western and northern
coast of Newfoundland, from the said Cape Ray to the Quirpon
Islands, on the shores of the Magdalen Islands," and on the other
coasts and shores in the said article set forth.
Notwithstanding these plain provisions, I regret to be obliged to
inform you that by the affidavit of the master of the American fishing
vessel Thomas F. Bayard, that being at Bonne Bay, which is on the
western coast of Newfoundland within the limits specified in Article
I of the convention referred to, the master of the said vessel was
formally notified by one N. N. Taylor, the officer of customs at that
point, that his vessel would be seized if he attempted to obtain a
supply of fish for bait or for any other transaction in connection with
fishing operations within three marine miles of that coast.
To avoid the seizure of his vessel the master broke up his voyage
and returned home.
I am also in possession of the affidavit of Alexander T. Eachern,
master of the American fishing schooner Mascot, who entered Port
Amherst, Magdalen Islands, and was there threatened by the customs
official with seizure of his vessel if he attempted to obtain bait for
fishing or to take a pilot.
These are flagrant violations of treaty rights of their citizens for
which the United States expect prompt remedial action by Her
Majesty's Government; and I have to ask that such instructions may
be issued forthwith to the provincial officials of Newfoundland and
of the Magdalen Islands as will cause the treaty rights of citizens of
the United States to be duly respected.
For the losses occasioned in the two cases I have mentioned, com-
pensation will hereafter be expected from Her Majesty's Govern-
ment when the amount shall have been accurately ascertained.
I have, &c.,
T. F. BAYARD.
806 CORRESPONDENCE, ETC.
Mr. Bayard to Mr. Phelps.
No. 372.] DEPARTMENT or STATE,
Washington, July 30, 1886.
SIR : Notwithstanding the express language of Article I of the con-
vention between the United States and Great Britain, concluded
October 20, 1818, by which it is provided that the inhabitants of the
two contracting countries " shall have forever in common * * *
the liberty to take fish of every kind " on certain coasts therein de-
scribed, and, as part thereof, " on that part of the southern coast of
NeAvfoundland which extends from Cape Ray to the Rameau Islands
on the western and northern coast of Newfoundland; from the said
Cape Ray to the Quirpon Islands, on the shores of the Magdalen
Islands, and also on the coast, bays, harbors, and creeks from Mount
Joly, on the southern coast of Labrador, to and through the Straits
of Belle Isle, and thence northwardly indefinitely along the coast,
without prejudice, however, to any of the exclusive rights of the
Hudson Bay Company," I have to-day received the sworn statements
of the captain of an American fishing vessel, the Thomas F. Bayard,
of Gloucester, Mass., to the effect that he has been hindered of his
lawful rights, so expressly secured by the convention referred to, " to
take fish of every kind " in the harbor of Bonne Bay, on the western
coast of Newfoundland and within the geographical limits herein-
before stated.
I inclose a copy of the affidavit and likewise of the formal notice
received by the master of the Thomas F. Bayard from the customs
officials at Bonne Bay, whereby, to avoid the seizure of his vessel by
the local authority of Newfoundland, he was compelled to abstain
from the exercise of his lawful right to obtain fish for bait to be used
in the open-sea fishing, and to break up his voyage and return home,
thus suffering great loss.
The affidavit of Captain McEachern, of the American schooner
Mascot, of Gloucester, Mass., which I hand you herewith, discloses
the fact of the threat of the customs officials at Port Amherst, in the
Magdalen Islands, to seize his vessel should he there obtain fresh
fish for bait, although those islands are expressly designated and
included in the region wherein the liberty forever to take fish of
every kind is expressly secured by the convention of 1818.
Previous attempts or suggestions have been made by the local au-
thorities of Newfoundland to inhibit the purchase or sale of fresh fish
for use as bait, and the same have been distinctly disapproved by Her
Majesty's Government, notably by the Duke of Newcastle, when
secretary of state for the colonies, in his dispatch of August 3, 18GB.
to the governor of Newfoundland, Sir A. Bannerman, a copy of
which you will find at page 111 in the public document (Ex. Doc.
No. 84, House of Representatives, Forty-sixth Congress, second ses-
sion) sent you by this mail.
You will please draw the attention of Her Majesty's secretary of
state for foreign affairs (Lord Iddesleigh) to these infractions of
treaty rights, and request that such instructions may be promptly
issued to the Newfoundland officials as will prevent a recurrence of
such wrongs to the lawful pursuits of American citizens; and you
will also notify his lordship that remuneration for the damages
PERIOD FEOM 1871 TO 1905. 807
incurred by the vessels and their owners in the cases referred to in
this instruction will be claimed on behalf of the sufferers, so soon as
the amount is accurately ascertained.
I am, &c., T. F. BAYARD.
[In closure No. 1.]
Sworn statement of James McDonald, master of the Thomas F. Bay-
ard, dated July $8, 1886, with accompanying notice served on him
by N. N. Taylor, officer of customs, dated July 12, 1886.
UNITED STATES or AMERICA,
Commonwealth of Massachusetts:
I, James McDonald, of Gloucester, on my oath do say I am master
and part owner of the schooner Thomas F. Bayard, a licensed vessel
of the United States; that she sailed with a permit to trade from
Gloucester June 22, on a trip for halibut. "We fished on the north-
west coast of Newfoundland, near Bonne Bay, where, my supply of
bait being exhausted, I ran into the port July 12 and reported at the
custom-house, stating to the collector that my purpose was to buy bait.
The collector immediately served me with the notice hereto appended
and made part of this affidavit. I had with me a copy of the Cana-
dian Warning of March 5, 1886, which contained the clause *2 of the
treaty of 1818. This I showed to the collector and argued that I had
the right under the treaty there set out. In substance his reply was
that he had an official duty to perform and would not permit me.
Fearing that my vessel would be seized should I remain or should
I buy bait or take it, I determined to return to Gloucester, as my trip
was broken up by reason of these threats in the notice and the action
of the collector in refusing to recognize the rights secured to my ves-
sel by the treaty. I arrived in Gloucester July 26. I say great losses
and damages have inured to said vessel, her owner, and crew by
reason of being warned off said coast and said Bonne Bay, as will be
duly made to appear.
JAMES MCDONALD.
COMMONWEALTH OF MASSACHUSETTS,
Suffolk, ss:
BOSTON, July 28, 18S6.
Then personally appeared the above-named James McDonald and
made oath that the foregoing statement by him subscribed is true.
CHARLES G. CHICK,
Justice of the Peace.
[Inclosure No. 2.]
Mr. Taylor to Captain McDonald.
BONNE BAY, July 12, 1886.
SIR: I am instructed to give you notice that the presence of your
vessel in this port is in violation of the articles of the international
convention of 1818 between Great Britain and the United States, in
relation to fishery rights on the coast of Newfoundland, and of the
laws in force in this country for the enforcement of the articles of the
convention and that the purchase of bait or ice, or other transaction
808 CORRESPONDENCE, ETC.
in connection with fishery operations, within 3 miles of the coasts of
this colony, will be in further violation of the terms of said conven-
tion and laws.
I am, &c., N. N. TAYLOR,
Officer of Customs.
Capt. JAMES MCDONALD,
Schooner Thomas F. Bayard.
[Inclosure No. 3.]
Sworn statement of Alexander McEachern, master of the Mascot^
dated July 87, 1886.
STATE OF MASSACHUSETTS,
County of Essex:
GLOUCESTER, July 87, 1886.
Be it known that on the 27th day of July, in the year of our Lord
1886, before me, Aaron Parsons, a notary public, duly commissioned
and sworn, and dwelling at Gloucester, in the county and State afore-
said, personally appeared Alexander McEachern, master of the
schooner called Mascot, of this port, who deposes and says: That on
the 10th day of June, 1886 A. D., I went into Port Amherst, Magda-
len Islands, for the purpose of buying bait, but as soon as I went
ashore I was met by the custom-house officials, who forbid me from so
doing, stating they would seize my vessel, and I had no right to enjoy
any privileges here except to get wood and water. I informed him
that I wanted to take a pilot so I could find a spot where I was in-
formed the fishing was good. He also said if I shipped such pilot or
laid in port over twenty-four hours he would seize my vessel.
[SEAL.] ALEX. MCEACHERN.
Before me.
AARON PARSONS, N. P.
Mr. Hardinge to Mr. Bayard.
BRITISH LEGATION,
"Washington, July 31, 1886. (Received August 2.)
SIR: I have the honor to acknowledge the receipt of your note of
yesterday's date, drawing my attention to an alleged infraction of the
stipulations of the treaty of October 20, 1818, by the Newfoundland
authorities at Bonne Bay, in threatening the master of the American
fishing vessel Thomas F. Bayard with seizure of his ship in case of his
attempting to obtain fish for bait or for any other transaction in con-
nection writh fishing operations within three marine miles of that
coast ; also, to the case of the United States fishing schooner Mascot,
at Port Amherst, Magdalen Islands.
I have, &c.,
CHARLES HARDINGE.
PERIOD FROM 1871 TO 1905. 809
Mr. Hardinge to Mr. Bayard.
BRITISH LEGATION,
Washington, August 2, 1886. (Received August 3.)
SIR : With reference to the several communications received by Her
Majesty's legation referring to the action of the Canadian authorities
in connection with the present position of the North American fish-
eries question, I have the honor to forward to you herewith, in com-
pliance with instructions which I have received from the Earl of
Rosebery, printed copies of three dispatches and their inclosures ad-
dressed by his lordship to Her Majesty's minister on the 23d ultimo,
stating the views of Her Majesty's Government, in reply to your
notes to Sir L. West of the 10th, 20th, 29th May, and 14th June.
I have, &c.,
CHARLES HARDINGE.
[Inclosure 1.]
The Earl of Rosebery to Sir L. West.
FOREIGN OFFICE, July %3, 1886.
SIR: I have received your dispatch No. 28 (treaty), of the llth of
Ma}^ last, inclosing a copy of a note addressed to you by Mr. Bayard,
in which, whilst expressly referring to the seizure by the Canadian
authorities of the American fishing vessels Joseph Story and David J.
Adams', he discusses at length the present position of the North Amer-
ican fisheries question.
I have also received a communication upon the same subject from
the United States minister at this court, dated the 2d June last, which,
although advancing arguments of a somewhat different character, is
substantially addressed to the consideration of the same question.
I think it therefore desirable to reply to these two communications
together in the present dispatch, of which I shall hand a copy to Mr.
Phelps.
The matter is one involving the gravest interests of Canada ; and,
upon receipt of the communications above mentioned, I lost no time
in requesting the secretary of state for the colonies to obtain from the
Government of the Dominion an expression of their views thereon. I
now inclose a copy of an approved report of the Canadian privy
council, in which the case of Canada is so fully set forth that I think
it would be desirable, as a preliminary step to the further discussion
of the questions involved in this controversy, to communicate a copy
of it to Mr. Bayard, as representing the views of the Dominion Gov-
ernment; and I have to request that, in so doing, you will state that
Her Majesty's Government will be glad to be favored with any obser-
vations which Mr. Bayard may desire to make thereon.
In regard to those portions of Mr. Phelps's note of the 2d June, in
which he calls in question the competence of the Canadian authorities
under existing statutes, whether imperial or colonial, to effect seizures
of United States fishing vessels under circumstances such as those
which appear to have led to the capture of the David J. Adams, I
have to observe that Her Majesty's Government do not feel them-
selves at present in a position to discuss that question, which is now
occupying the attention of the courts of law in the Dominion, and
810 CORRESPONDENCE, ETC.
which may possibly form the subject of an appeal to the judicial com-
mittee of Her Majesty's privy council in England.
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 Govern-
ment do not feel justified in expressing an opinion upon them, either
as to the facts or the legality of the action taken by the colonial
authorities.
I do not, therefore, conceive it to be at present necessary to make
any specific reply to Mr. Bayard's further notes of the llth and 12th
May and 1st, 2d, and Tth June last. But with regard to his note of
the 20th May, relative to the seizure of the United States fishing ves-
sel Jennie and Julia, I inclose for communication to Mr. Bayard a
copy of a report from the Canadian minister of marine and fisheries
dealing with this case.
I cannot, however, close this dispatch without adding that Her
Majesty's Government entirely concur in that passage of the report
of the Canadian privy council, in which it is observed that " if the
provisions of the convention of 1818 have become inconvenient to
either contracting party, the utmost that good-will and fair dealing
can suggest is that the terms shall be reconsidered."
It is assuredly from no fault on the part of Her Majesty's Govern-
ment that the question has now been relegated to the terms of the
convention of 1818. They have not ceased to express their anxiety
to commence negotiations, and they are now prepared to enter upon
a frank and friendly consideration of the whole question with the
most earnest desire to arrive at a settlement consonant alike with the
rights and interests of Canada and of the United States.
Where, as in the present case, conflicting interests are brought into
antagonism by treaty stipulations the strict interpretation of which
has scarcelv been called in question, the matter appears to Her
Majesty's (jovernment to be pre-eminently one for friendly nego-
tiation.
I am, &c.
[Sub-inclosure 1.]
Report of a committee of the honorable the privy council for Canada,
approved by his excellency the governor-general on the Hth June,
1886.
The committee of the privy council have had under consideration a
report from the minister of marine and fisheries upon the communica-
tions dated 10th and 20th May last from the Hon. Mr. Bayard, Secre-
tary of State of the United States, to Her Majesty's minister at Wash-
ington, in reference to the seizure of the American fishing-vessel
David J. Adams.
The committee concur in the annexed report, and they advise that
your excellency be moved to transmit a copy thereof to the Right
Hon. the Secretary of State for the Colonies.
All of which is respectfully submitted for your excellency's ap-
proval.
JOHN J. McGEE,
Clerk) Privy Council, Canada.
PERIOD FROM 1871 TO 1905. 811
[Annex]
The undersigned having had his attention called by your excellency
to a communication from Mr. Bayard, Secretary of State of the
United States, dated the 10th May, and addressed to Her Majesty's
minister at Washington, and to a further communication from Mr.
Bayard, dated the 20th May instant, in reference to the seizure of the
American fishing vessel David J. Adams, begs leave to submit the
following observations thereon :
Your excellency's Government fully appreciates and reciprocates
Mr. Bayard's desire that the administration of the laws regulating the
commercial interests and the mercantile marine of the two countries
might be such as to promote good feeling and mutual advantage.
Canada has given many indisputable proofs of an earnest desire to
cultivate and extend her commercial relations with the United States,
and it may not be without advantage to recapitulate some of those
proofs.
For many years before 1854 the maritime provinces of British
North America had complained to Her Majesty s Government of the
continuous invasion of their inshore fisheries (sometimes accompanied,
it was alleged, with violence) by American fishermen and fishing
vessels.
Much irritation naturally ensued, and it was felt to be expedient by
both Governments to put an end to this unseemly state of things by
treaty, and at the same time to arrange for enlarged trade relations
between the United States and the British North American colonies.
The reciprocity treaty of 1854 was the result, by which were not only
our inshore fisheries opened to the Americans, but provision was made
for the free interchange of the principal natural products of both
countries, including those of the sea. Peace was preserved on our
waters, and the volume of jnternational trade steadily increased
during the existence of this treaty, and until it was terminated in
I860, not by Great Britain, but by the United States.
In the following year Canada (then become a dominion and united
to Nova Scotia and New Brunswick) was thrown back on the con-
vention of 1818, and obliged to fit out a marine police to enforce the
laws and defend her rights, still desiring, however, to cultivate
friendly relations with her great neighbor, and not too suddenly to
deprive the American fishermen of their accustomed fishing grounds
and means of livelihood. She readily acquiesced in the proposal of
Her Majesty's Government for the temporary issue of annual licenses
to fish on payment of a moderate fee. Your excellency is aware of
the failure of that scheme. A few licenses were issued at first, but the
applications for them soon ceased, and the American fishermen per-
sisted in forcing themselves into our waters " without leave or
license."
. Then came the recurrence, in an aggravated form, of all the
troubles which had occurred anterior to the reciprocity treaty. There
were invasions of our waters, personal conflicts between our fishermen
and American crews, the destruction of nets, the seizure and con-
demnation of vessels, and intense consequent irritation on both sides.
This was happily put an end to by the Washington treaty of 1871.
In the interval between the termination of the first treaty and the
ratification of that by which it was eventually replaced, Canada on
812 CORRESPONDENCE, ETC.
several occasions pressed, without success, through the British min-
ister at Washington, for a renewal of the reciprocity treaty or for the
negotiation of another on a still wider basis.
When in 1874 Sir Edward Thornton, then British minister at
Washington, and the late Hon. George Brown, of Toronto, were
appointed joint plenipotentiaries for the purpose of negotiating and
concluding a treaty relating to fisheries, commerce, and navigation, a
provisional treaty was arranged by them with the United States Gov-
ernment, but the Senate decided that it was not expedient to ratify it,
and the negotiation fell to the ground.
The* treaty of Washington, while it failed to restore the provisions
of the treaty of 1854, for reciprocal free trade (except in fish), at
least kept the peace, and there was tranquillity along our shores until
July, 1885, when it was terminated again by the United States
Government and not by Great Britain.
With a desire to show that she wished to be a good neighbor, and in
order to prevent loss and disappointment on the part of the United
States fishermen by their sudden exclusion from her waters in the
middle of the fishing season, Canada continued to allow them, for six
months, all the advantages which the rescinded fishery clauses had
previously given them, although her people received from the United
States none of the corresponding advantages which the treaty of 1871
had declared to be an equivalent for the benefits secured thereby to
the American fishermen.
The President, in return for this courtesy, promised to recommend
to Congress the appointment of a joint commission of the two Govern-
ments of the United Kingdom and the United States to consider the
fishery question, with permission also to consider the whole state ol
trade relations between the United States and Canada.
This promise was fulfilled by the President, but the Senate rejected
his recommendation and refused to sanction the commission.
Under these circumstances Canada, having exhausted every effort
to procure an amicable arrangement, has been driven again to fall
back upon the convention of 1818, the provisions of which she is now
enforcing and will enforce, in ho punitive or hostile spirit as Mr.
Bayard supposes, but solely in protection of her fisheries, and in
vindication of the right secured to her by treaty.
Mr. Bayard suggests that "the treaty of 1818 was between two
nations — the United States of America and Great Britain — who, as
the contracting parties, can alone apply authoritative interpretation
thereto, and enforce its provisions by appropriate legislation."
As it may be inferred from this statement that the right of the
Parliament of Canada to make enactments for the protection of the
fisheries of the Dominion, and the power of the Canadian officers to
protect those fisheries, are questioned, it may be well to state at the
outset the grounds upon which it is conceived by the undersigned that
the jurisdiction in question is clear beyond a doubt.
1. In the first place the undersigned would ask it to be remembered
that the extent of the jurisdiction of the Parliament of Canada is not
limited (nor was that of the Provinces before the union) to the sea-
coast, but extends for three marine miles from the shore as to all
matters over which any legislative authority can in any country be
exercised within that space. The legislation which has been adopted
on this subject by the Parliament of Canada (and previously to con-
PEEIOD FKOM 1871 TO 1905. 813
federation by the Provinces) does not reach beyond that limit. It
may be assumed that, in the absence of any treaty stipulation to the
contrary, this right is so well recognized and established by both
British and American law, that the grounds on which it is supported
need not be stated here at large. The undersigned will merely add,
therefore, to this statement of the position, that so far from the right
being limited by the convention of 1818 that convention expressly
recognizes it.
After renouncing the liberty to " take, cure, or dry fish on or within
three marine miles of any of the coasts, bays, creeks, or harbors of
His Majesty's dominions in America," there is a stipulation that while
American fishing vessels shall be admitted to enter such bays, &c.,
" for the purpose of shelter and of repairing damages therein, of pur-
chasing wood, and of obtaining water, they shall be under such restric-
tions as may be necessary to prevent their taking, curing, or drying
fish therein, or in any other manner whatever abusing the privileges
reserved to them."
2. Appropriate legislation on this subject was, in the first instance,
adopted by the Parliament of the United Kingdom. The imperial
statute 59 Geo. Ill, cap. 38, was enacted in the year following the
convention, in order to give that convention force and effect. That
statute declared that, except for the purposes before specified, it
should " not be lawful for any person or persons, not being a natural -
born subject of His Majesty, in any foreign ship, vessel, or boat,
nor for any person in any ship, vessel, or boat, other than such
as shall be navigated according to the laws of the United Kingdom
of Great Britain and Ireland, to fish for, or to take, dry, or cure any
fish of any kind whatever within three marine miles of any coasts,
bays, creeks, or harbors whatever, in any part of His Majesty's do-
minions in America, not included within the limits specified and de-
scribed in the first article of the said convention, and that if such for-
eign ship, vessel, or boat, or any person or persons on board thereof
shall be found fishing, or to have been fishing, or preparing to fish
within such distance of such coasts, bays, creeks, or harbors within
such parts of His Majesty's dominions in America, out of the said
limits as aforesaid, all such ships, vessels, and boats, together with
their cargoes, and all guns, ammunition, tackle, apparel, furniture,
and stores, shall be forfeited, and shall and may be seized, taken, sued
for, prosecuted, recovered, and condemned by such and the like ways,
means, and methods, and in the same courts as ships, vessels, or boats
may be forfeited, seized, prosecuted, and condemned for any offense
against any laws relating to the revenue of customs, or the laws of
trade and navigation, under any act or acts of the Parliament of
Great Britain or the United Kingdom of Great Britain and Ireland,
provided that nothing contained in this act shall apply or be con-
strued to apply to the ships or subjects of any prince, power, or state
in amity with His Majesty who are entitled by treaty with His Maj-
esty to any privileges of taking, drying, or curing fish on the coasts,
bays, creeks, or harbors or within the limits in this act described. Pro-
vided always, that it shall and may be lawful for any fishermen of the
said United States to enter into any such bays or harbors of His Bri-
tannic Majesty's dominions in America as are last mentioned, for the
purpose of shelter and repairing damages therein, of purchasing
wood, and of obtaining water, and for no other purpose whatever,
814 CORBESPONDENCE, ETC.
subject nevertheless to such restrictions as may be necessary to pre-
vent such fishermen of the said United States from taking, drying, or
curing fish in the said bays or harbors, or in any other manner what-
ever, abusing the said privileges by the said treaty and this act re-
served to them, and as shall, for that purpose, be imposed by any order
or orders to be from time to time made by His Majesty in council
under the authority of this act, and by any regulations which shall
be issued by the governor or person exercising the office of governor
in any such parts of His Majesty's dominions in America, under or
in pursuance of any such order in council as aforesaid. And that if
any person or persons upon requisition made by the governor of New-
foundland, or the person exercising the office of governor, or by any
governor in person exercising the office of governor in any other
parts of His Majesty's dominions in America, as aforesaid, or by any
officer or officers acting under such governor or person exercising the
office of governor, in the execution of any orders or instructions
from His Majesty in council, shall refuse to depart from such bays
or harbors, or if any person or persons shall refuse, or neglect, to
conform to any regulations or directions which shall be made or
given for the execution of any of the purposes of this act, every
such person so refusing or otherwise offending against this act shall
forfeit the sum of two hundred pounds, to be recovered in the su-
perior court of judicature of the island of Newfoundland, or in the
superior court of judicature of the colony or settlement within or near
to which such offense shall be committed, or by bill, plaint, or infor-
mation in any of His Majesty's courts of record at Westminster,
one moiety of such penalty to belong to His Majesty, his heirs and
successors, and the other moiety to such person or persons as shall
sue or prosecute for the same."
The acts passed by the Provinces now forming Canada, and also
by the Parliament of Canada (now noted in the margin) a are to the
same effect, and may be said to be merely declaratory of the law as
established by the imperial statute.
3. The authority of the legislatures of the Provinces, and, after
confederation, the authority of the Parliament of Canada, to make
enactments to enforce the provisions of the convention, as well as the
authority of Canadian officers to enforce those acts, rests on well-
known constitutional principles.
Those legislatures existed, and the Parliament of Canada now
exists, by the authority of the Parliament of the United Kingdom
of Great Britain and Ireland, which is one of the nations referred to
by Mr. Bayard as the " contracting parties." The colonial statutes
have received the sanction of the British sovereign, who, and not th
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 rep-
resentative, the governor-general. The jurisdiction thus exercised
cannot, therefore, be properly described in the language used by Mr.
a Dominion acts, 31 Viet., cap 6 ; 33 Viet, cap. 16 ; now incorporated in Re-
vised Statutes of 1886 cap. 90. Nova Scotia acts, Revised Statutes, 3d series,
cap 94, 29 Viet. (1806), cap. 35. New Brunswick acts, 16 Viet. (1853), cap 69.
Prince Edward Island acts, 6 Viet. (1843), cap. 14.
PERIOD FROM 1871 TO 1905. 815
Bayard as a supposed and therefore questionable delegation of juris-
diction by the Imperial Government of Great Britain. Her Majesty
governs in Canada as well as in Great Britain ; the officers of Canada
are her officers ; the statutes of Canada are her statutes, passed on the
advice of her Parliament sitting in Canada.
It is, therefore, an error to conceive that because the United States
and Great Britain were, in the first instance, the contracting parties
to the treaty of 1818, no question arising under that treaty can be
" responsibly dealt with," either by the Parliament or by the authori-
ties of the Dominion.
The raising of this objection now is the more remarkable, as the
Government of the United States has long been aware of the neces-
sity of reference to the colonial legislatures in matters affecting their
interests.
The treaties of 1854 and 1871 expressly provide that, so far as they
concerned the fisheries or trade relations with the provinces, they
should be subject to ratification by their several legislatures; and
seizures of American vessels and goods, followed by condemnation
for breach of the provincial customs laws, have been made for forty
years without protest or objection on the part of the United States
Government.
The undersigned, with regard to this contention of Mr. Bayard,
has further to observe that in the proceedings which have recently
been taken for the protection of the fisheries, no attempt has been
made to put any special or novel interpretation on the convention of
1818. The seizures of the fishing vessels have been made in order to
enforce the explicit provisions of that treaty, the clear and long
established provisions of the imperial statute and of the statutes of
Canada expressed in almost the same language.
The proceedings which have been taken to carry out the law of the
Empire in the present case are the same as those which have been
taken from time to time during the period in which the convention
has been in force, and the seizures of vessels have been made under
process of the imperial court of vice-admiralty established in the
provinces of Canada.
Mr. Bayard further observes that since the treaty of 1818, " a series
of laws and regulations affecting the trade between the North Ameri-
can provinces 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," and that " the inde-
pendent and yet concurrent action of the two Governments has
effected a gradual extension from time to time of the provisions of
article 1 of the convention of the 3d of July, 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 limits of that treaty."
Tha undersigned has not been able to discover, in the instances
given by Mr. Bayard, any evidence that the laws and regulations
affecting the trade between the British North American Provinces
and the United States, or that " the independent and yet concurrent
action of the two Governments" have either extended or restricted
the terms of the convention of 1818, or affected in any way the right
816 CORRESPONDENCE, ETC.
to enforce its provisions according to the plain meaning of the articles
of the treaty ; on the contrary, a reference to the eighteenth article of
the Washington treaty will show that the contracting parties made
the convention the basis of the further privileges granted by the
treaty, and it does not allege that its provisions are in any way ex-
tended or affected by subsequent legislation or acts of administration.
Mr. Bayard has referred to the proclamation of President Jackson
in 1830, creating " reciprocal commercial intercourse on terms of per-
fect equality of flag" between the United States and the British
American dependencies, and has suggested that these " commercial
privileges have since received a large extension, and that in some cases
' favors ' have been granted by the United States without equivalent
'concession,' such as the exemption granted by the shipping act of
the 26th June, 1884, amounting to one-half of the regular tonnage
dues on all vessels from British North America and West Indies
entering ports of the United States."
He has also mentioned under this head " the arrangement for the
transit of goods, and the remission by proclamation as to certain
British ports and places of the remainder of the tonnage tax on evi-
dence of equal treatment being shown " to United States vessels.
The proclamation of President Jackson in 1830 had no relation to
the subject of the fisheries, and merely had the effect of opening
United States ports to British vessels on terms similar to those which
had already been granted in British ports to vessels of the United
States. The object of these "laws and regulations" mentioned by
Mr. Bayard was purely of a commercial character, while the sole
purpose of the convention of 1818 was to establish and define the
rights of the citizens of the two countries in relation to the fisheries
on the British North American coast.
Bearing this distinction in mind, however, it may be conceded that
substantial assistance has been given to the development of com-
mercial intercourse between the two countries.
But legislation in that direction has not been confined to the Gov-
ernment of the United States, as indeed Mr. Bayard has admitted in
referring to the case of the imperial shipping and navigation act of
1849.
For upwards of forty years, as has already been stated, Canada has
continued to evince her desire for a free exchange of the chief prod-
ucts of the two countries. She has repeatedly urged the desirability
of the fuller reciprocity of trade which was established during the
period in which the treaty of 1854 was in force.
The laws of Canada with regard to the registry of vessels, tonnage
dues, and shipping generally, are more liberal than those of the
United States. The ports of Canada in inland waters are free to
vessels of the United States, which are admitted to the use of her
canals on equal terms with Canadian vessels.
Canada allows free registry to ships built in the United States and
purchased by British citizens, charges no tonnage or light clues on
United States shipping, and extends a standing invitation for a large
measure of reciprocity in trade by her tariff legislation.
Whatever relevancy, therefore, the argument may have to the sub-
ject under consideration, the undersigned submits that the conces-
sions which Mr. Bayard refers to as " favors " granted by United
States can hardly be said not to have been met by equivalent conces-
PERIOD FROM 1871 TO 1905. 817
sions on the part of the Dominion, and inasmuch as the disposition
of Canada continues to be the same, as was evinced in the friendly
legislation just referred to, it would seem that Mr. Bayard's charges
of showing " hostility to commerce under the guise of protection to
inshore fisheries," or of interrupting ordinary commercial intercourse
by harsh measures and unfriendly administration, is hardly justified.
The questions which were in controversy between Great Britain
and the United States prior to 1818 related not to shipping and com-
merce, but to the claims of United States fishermen to fish in waters
adjacent to the British North American Provinces.
Those questions were definitely settled by the convention of that
year, and although the terms of that convention have since been twice
suspended, first Try the treaty of 1854, and subsequently by that of
1871, after the lapse of each of these two treaties the provisions made
in 1818 came again into operation, and were carried out by the Im-
perial and colonial authorities without the slightest doubt being
raised as to their being in full force and vigor.
Mr. Bayard's contention that the effect of the legislation which has
taken place under the convention of 1818, and of executive action
thereunder, would be " to expand the restrictions and renunciations
of that treaty which related solely to the inshore fishing within the
three-mile limit, so as to affect the deep-sea fisheries," and " to di-
minish and practically destroy the privilege expressly secured to
American fishing vessels to visit these inshore waters for the objects
of shelter and repair of damages, and purchasing wood and obtain-
ing water," appears to the undersigned to be unfounded. The legisla-
tion referred to in no way affects those privileges, nor has the Govern-
ment of Canada taken any action towards their restriction. In the
cases of the recent seizures, which are the immediate subject of Mr.
Bayard's letter, the vessels seized had not resorted to Canadian waters
for any one of the purposes specified in the convention of 1818 as
lawful. They were United States fishing vessels, and, against the
plain terms of the convention, had entered Canadian harbors. In
doing so the David J. Adams was not even possessed of a permit " to
touch and trade," even if such a document could be supposed to divest
her of the character of a fishing vessel.
The undersigned is of opinion that while, for the reasons which he
has advanced, there is no evidence to show that the Government of
Canada has sought to expand the scope of the convention of 1818 or
to increase the extent of its restrictions, it would not be difficult to
prove that the construction which the United States seeks to place
on that convention would have the effect of extending very largely the
privileges which their citizens enjoy under its terms. The contention
that the changes which may from time to time occur in the habits of
the fish taken off our coasts, or in the methods of taking them, should
be regarded as justifying a periodical revision of the terms of the
treaty, or a new interpretation of its provisions, cannot be acceded to.
Such changes may from time to time render the conditions of the
contract inconvenient to one party or the other, but the validity of
the agreement can hardly be said to depend on the convenience or
inconvenience which it imposes from time to time on one or other of
the contracting parties. When the operation of its provisions can be
shown to have become manifestly inequitable, the utmost that good-
92909°— S. Doc. 870, 61-3, vol 3 13
818 CORRESPONDENCE, ETC.
will and fair dealing can suggest is that the terms should be recon-
sidered and a new arrangement entered into ; but this the Government
of the United States does not appear to have considered desirable.
It is not, however, the case that the convention of 1818 affected only
the inshore fisheries of the British Provinces ; it was framed with the
object of affording a complete and exclusive definition of the rights
and liberties which the fishermen of the United States were thence-
forward to enjoy in following their vocation, so far as those rights
could be affected by facilities for access to the shores or waters of the
British Provinces, or for intercourse with their people. It is there-
fore no undue expansion of the scope of that convention to interpret
strictly those of its provisions by which such access is denied, except
to vessels requiring it for the purposes specifically described.
Such an undue expansion would, upon the other hand, certainly
take place if, under cover of its provisions, or of any agreements relat-
ing to general commercial intercourse which may have since been
made, permission were accorded to United States fishermen to resort
habitually to the harbors of the Dominion, not for the sake of seeking
safety for their vessels or of avoiding risk to human life, but in order
to use those harbors as a general base of operations from which to
prosecute and organize with greater advantage to themselves the in-
dustry in which they are engaged.
It was in order to guard against such an abuse of the provisions of
the treaty that amongst them was included the stipulation that not
only should the inshore fisheries be reserved to British fishermen, but
that the United States should renounce the right of their fishermen to
enter the bays or harbors excepting for the four specified purposes,
which do not include the purchase of bait or other appliances, whether
intended for the deep-sea fisheries or not.
The undersigned, therefore, cannot concur in Mr. Bayard's conten-
tion that " to prevent the purchase of bait, or any other supply needed
for deep-sea fishing, would be to expand the convention to objects
wholly beyond the purview, scope, and intent of the treaty, and to
give to it an effect never contemplated."
Mr. Bayard suggests that the possession by a fishing vessel of a per-
mit to " touch and trade " should give her a right to enter Canadian
ports for other than the purposes named in the treaty, or, in other
words, should give her perfect immunity from its provisions. This
would amount to a practical repeal of the treaty, because it would
enable a United States collector of customs, by issuing a license, origi-
nally only intended for purposes of domestic customs regulation, to
give exemption from the treaty to every United States fishing vessel.
The observation that similar vessels under the British flag have the
right to enter the ports of the United States for the purchase of sup-
plies loses its force when it is remembered that the convention of 1818
contained no restriction on British vessels, and no renunciation of any
privileges in regard to them.
Mr. Bayard states that in the proceedings prior to the treaty of 1818
the British commissioners proposed that United States fishing ves-
sels should be excluded " from carrying also merchandise," but that
this proposition " being resisted by. the American negotiators, was
abandoned," and goes on to say, " this fact would seem clearly to indi-
cate that the business of fishing did not then, and does not now, dis-
qualify vessels from also trading in the regular ports of entry. A
PERIOD FROM 1811 TO 1905. 819
reference to the proceedings alluded to will show that the proposition
mentioned related only to United States vessels visiting those portions
of the coast of Labrador and Newfoundland on which the United
States fishermen had been granted the right to fish, and to land for
drying and curing fish, and the rejection of the proposal can, at the
utmost, be supposed only to indicate that the liberty to carry mer-
chandise might exist without objection in relation to those coasts, and
is no ground for supposing that the right extends to the regular ports
of entry, against the express words of the treaty.
The proposition of the British negotiators was to append to Article
I the following words : " It is, therefore, well understood that the
liberty of taking, drying, and curing fish, granted in the preceding
part of this article, shall not be construed to extend to any privilege
of carrying on trade with any of his Britannic Majesty's subjects
residing within the limits hereinbefore assigned for the use of the
fishermen of the United States."
It was also proposed to limit them to having on board such goods
as might " be necessary for the prosecution of the fishery or the sup-
port of the fishermen while engaged therein, or in the prosecution of
their voyages to and from the fishing grounds."
To this the American negotiators objected, on the ground that the
search for contraband goods, and the liability to seizure for having
them in possession, would expose the fishermen to endless vexation,
and, in consequence, the proposal was abandoned. It is apparent,
therefore, that this proviso in no way referred to the bays or harbor?
outside of the limits assigned to the American fishermen, from which
bays and harbors it was agreed, both before and after this proposition
was discussed, that United States fishing vessels were to be excluded
for all purposes other than for shelter and repairs, and purchasing
wood and obtaining water.
If, however, weight is to be given to Mr. Bayard's argument that
the rejection of a proposition advanced by either side during the
course of the negotiations should be held to necessitate an interpreta-
tion adverse to the tenor of such proposition, that argument may cer-
tainly be used to prove that American fishing vessels were not in-
tended to have the right to enter Canadian waters for bait to be used
even in the prosecution of the deep-sea fisheries. The United States
negotiators in 1818 made the proposition that words " and bait " be
added to the enumeration of the objects for which these fishermen
might be allowed to enter, and the proviso as first submitted had
read " provided, however, that American fishermen shall be per-
mitted to enter such bays and harbors for the purpose only of obtain-
ing shelter, wood, water, and bait." The addition of the two last
words was, however, resisted by the British plenipotentiaries, and
their omission acquiesced in by their American colleagues. It is,
moreover, to be observed that this proposition could only have had
reference to the deep-sea fishing, because the inshore fisheries had
already been specifically renounced by the representatives of the
United States.
In addition to this evidence, it must be remembered that the United
States Government admitted, in the case submitted by them before
the Halifax commission in 1877, that neither the convention of 1818
nor the treaty of Washington conferred any right or privilege of
trading on American fishermen. The British case claimed compensa-
820 CORRESPONDENCE, ETC.
tion for the privilege which had been given since the ratification of
the latter treaty to United States fishing vessels " to transfer cargoes,
to outfit vessels, buy supplies, obtain ice, engage sailors, procure
bait, and traffic generally in British ports and harbors."
This claim was, however, successfully resisted, and in the United
States case it is maintained " that the various incidental and recip-
rocal advantages of the treaty, such as the privileges of traffic, pur-
chasing bait and other supplies, are not the subject of compensation,
because the treaty of Washington confers no such rights on the in-
habitants of the United States, who now enjoy them merely by
sufferance, and who can at any time be deprived of them by the en-
forcement of existing laws or the re-enactment of former oppressive
statutes. Moreover, the treaty does not provide for any possible
compensation for such privileges."
Now, the existing laws referred to in this extract are the various
statutes passed by the imperial and colonial legislatures to give effect
to the treaty of 1818, which, it is admitted in the said case, could at
any time have been enforced (even during the existence of the Wash-
ington treaty), if the Canadian authorities had chosen to do so.
Mr. Bayard on more than one occasion intimates that the inter-
pretation of the treaty and its enforcement are dictated by local and
hostile feelings, and that the main question is being " obscured by
partisan advocacy and distorted by the heat of local interests," and,
in conclusion, expresses a hope that " ordinary commercial intercourse
shall not be interrupted by harsh measures and unfriendly adminis-
trations."
The undersigned desires emphatically to state that it is not the wish
of the Government or the people of Canada to interrupt for a moment
the most friendly and free commercial intercourse with the neighbor-
ing Republic.
The mercantile vessels and the commerce of the United States have
at present exactly the same freedom that they have for years passed
enjoyed in Canada, and the disposition of the Canadian Government
is to extend reciprocal trade with the United States beyond its present
limits, nor can it be admitted that the charge of local prejudice or
hostile feeling is justified by the calm enforcement, through the legal
tribunals of the country, of the plain terms of a treaty between Great
Britain and the United States, and of the statutes which have been in
operation for nearly seventy years, excepting in intervals during
which (until put an end to by the United States Government) special
and more liberal provisions existed in relation to the commerce and
fisheries of the two countries.
The undersigned has further to call attention to the letter of Mr.
Bayard of the 20th May, relating also to the seizure of the David J.
Adams in the port of Digby, Nova Scotia.
Thai? vessel was seized, as has been explained on a previous occa-
sion, by the commander of the Canadian steamer Lansdowne, under
the following circumstances:
She was a United States fishing vessel, and entered the harbor of
Digby for purposes other than those for which entry is permitted
by the treaty and by the imperial and Canadian statutes.
As soon as practicable, legal process was obtained from the vice-
admiralty court at Halifax, and the vessel was delivered to the officer
of that court. The paper referred to in Mr. Bayard's letter as having
PERIOD FROM 1871 TO 1905. 821
been nailed to her mast was doubtless a copy of the warrant which
commanded the marshal or his deputy to make the arrest.
The undersigned is informed that there was no intention whatever
of so adjusting the paper that its contents could not be read, but it
is doubtless correct that the officer of the court in charge declined to
allow the document to be removed. Both the United States consul-
general and the captain of the David J. Adams were made acquainted
with the reasons for the seizure, and the only ground for the state-
ment that a respectful application to ascertain the nature of com-
plaint was fruitless, was that the commander of the Lansdowne,
after the nature of the complaint had been stated to those concerned
and was published, and had become notorious to the people of both
countries, declined to give the United States consul-general a specific
and precise statement of the charges upon which the vessel would be
proceeded against, but referred him to his superior.
Such conduct on the part of the officer of the Lansdowne can hardly
be said to have been extraordinary under the present circumstances.
The legal proceedings had at that time been commenced in the
court of vice-admiralty at Halifax, where the United States consul-
general resides, and the officer at Digby could not have stated with
precision, as he was called upon to do, the grounds on which the in-
tervention of the court had been claimed in the proceedings therein.
There was not, in this instance, the slightest difficulty in the United
States consul-general and those interested in the vessel obtaining the
fullest information, and no information which could have been given
by those to whom they applied was withheld.
Apart from the general knowledge of the offenses which it was
claimed the master had committed, and which was furnished at the
time of the seizure, the most technical and precise details were readily
obtainable at the registry of the court, and from the solicitors of the
crown, and would have been furnished immediately on application
to the authority to whom the commander of the Lansdowne requested
the United States consul-general to apply. No such information
could have been obtained from the paper attached to the vessel's mast.
Instructions have, however, been given to the commander of the
Lansdowne and other officers of the marine police, that, in the event
of any further seizure, a statement in writing shall be given to the
master of the seized vessel of the offenses for which the vessel may be
detained, and that a copy thereof shall be sent to the United States
consul-general at Halifax, and to the nearest United States consular
agent, and there can be no objection to the solicitor for the crown
being instructed likewise to furnish the consul-general with a copy
of the legal process in each case, if it can be supposed that any fuller
information will thereby be given.
Mr. Bayard is correct in his statement of the reasons for which
the David J. Adams was seized, and is now held. It is claimed that
the vessel violated the treaty of 1818, and consequently the statutes
which exist for the enforcement of the treaty, and it is also claimed
that she violated the customs laws of Canada of 1883.
The undersigned recommends that copies of those statutes be fur-
nished for the information of Mr. Bayard.
Mr. Bayard has, in the same dispatch, recalled the attention of Her
Majesty's minister to the correspondence and action which took place
in the year 1870, when the fishery question was under consideration,
822 CORRESPONDENCE, ETC.
and especially to the instructions from the lords of the admiralty to
Vice- Admiral Wellesley, in which that officer was directed to observe
great caution in the arrest of American fishermen, and to confine his
action to one class of offenses against the treaty. Mr. Bayard, how-
ever, appears to have attached unwarranted importance to the cor-
respondence and instructions of 1870, when he refers to them as im-
plying " an understanding between the two Governments," an under-
standing, which should, in his opinion, at other times, and under
other circumstances, govern the conduct of the authorities, whether
imperial or colonial, to whom under the laws of the Empire is com-
mitted the duty of enforcing the treaty in question.
When, therefore, Mr. Bayard points out the " absolute and instant
necessity that now exists for a restriction of the seizure of American
vessels charged with violations of the treaty of 1818 " to the conditions
specified under those instructions, it is necessary to recall the fact
that in the year 1870 the principal cause of complaint on the part
of Canadian fishermen was that the American vessels were trespass-
ing on the inshore fishing grounds and interfering with the catch of
mackerel in Canadian waters, the purchase of bait being then a mat-
ter of secondary importance.
It is probable, too, that the action of the imperial Government was
influenced very largely by the prospect which then existed of an ar-
rangement such as was accomplished in the following year by the
treaty of Washington, and that it may be inferred, in view of this
disposition made apparent on both sides to arrive at such an under-
standing, that the imperial authorities, without any surrender of im-
perial or colonial rights, and without acquiescing in any limited con-
struction of the treaty, instructed the vice-admiral to confine his
seizures to the more open and injurious class of offenses which were
especially likely to be brought within the cognizance of the naval
officers of the imperial service.
The Canadian Government, as has been already stated, for six
months left its fishing grounds open to American fishermen, without
any corresponding advantage in return, in order to prevent loss to
those fishermen, and to afford time for the action of Congress, on the
President's recommendation that a joint commission should be ap-
pointed to consider the whole question relating to the fisheries.
That recommendation has been rejected by Congress. Canadian
fish is by prohibitory duties excluded from the United States market.
The American fishermen clamor against the removal of those duties,
and, in order to maintain a monopoly of the trade, continue against
all law to force themselves into our waters and harbors, and make our
shores their base for supplies, especially for bait, which is necessary to
the successful prosecution of their business.
They hope by this course to supply the demand for their home
market, and thus to make Canada indirectly the means of injuring
her own trade.
It is surely, therefore, not unreasonable that Canada should insist
on the rights secured to her by treaty. She is simply acting on the
defensive, and no trouble can arise between the two countries if
American fishermen will only recognize the provisions of the conven-
tion of 1818 as obligatory upon them, and until a new arrangement
is made, abstain both from fishing in her waters and from visiting
PEillOD FKOM 1871 TO 1905. 823
her bays and harbors for any purpose save those specified in the
treaty.
In conclusion, the undersigned would express the hope that the dis-
cussion which has arisen on this question may lead to renewed nego-
tiations between Great Britain and the United States, and may have
the result of establishing extended trade relations between the Re-
public and Canada, and of removing all sources of irritation be-
tween the two countries.
GEORGE E. FOSTER,
Minister of Marine and Fisheries.
[Inclosure No. 2.]
The Earl of Rosebery to Sir L. West.
FOREIGN OFFICE, July 23, 1886.
SIR: I have to acknowledge the receipt of your dispatch No. 46
(treaty), of the 30th May last, inclosing a copy of a note from Mr.
Bayard, in which he protests against the provisions of a bill recently
introduced into the Canadian Parliament for the purpose of regu-
lating fishing operations by foreign vessels in Canadian waters.
In reply I inclose an extract of a dispatch from the governor-gen-
eral of Canada, containing observations on the subject.
I have to add that Her Majesty's Government entirely concur in
the views expressed by the Marquis of Lansdowne in this extract, of
which you will communicate a copy to Mr. Bayard, together with a
copy of the present dispatch.
With regard to Mr. Bayard's observations in the same note respect-
ing a customs circular and a warning issued by the Canadian au-
thorities, and dated respectively the 7th May and the 5th March last,
I have to acquaint you that these documents have now been amended
so as to bring them into exact accordance with treaty stipulations ; and
I inclose, for communication to the United States Government,
printed copies of these documents as amended.
I am, &c.
[Inclosure No. 3.]
The Earl of Rosebery to Sir L. West.
FOREIGN OFFICE, July 23, 1886.
SIR: I have received your dispatch No. 55, Treaty, of the 15th
ultimo, in which you inclose a copy of a note from Mr. Bayard, pro-
testing against a warning alleged to have been given to United States
fishing vessels by a Canadian customs official, with the view to pre-
vent them from fishing within lines drawn from headland to headland
from Cape Canso to St. Esprit, and from North Cape to East Point
of Prince Edward Island.
In reply, I have to request you to acquaint Mr. Bayard that Her
Majesty's Government have ascertained that no instructions to this
effect have been issued by the Canadian Government, but that a fur-
ther report is expected upon the subject.
824 CORRESPONDENCE, ETC.
It appears that the collector at Canso, in conversation with the
master of a fishing vessel, expressed the opinion that the headland line
ran from Cranberry Island to St. Esprit, but this was wholly unau-
thorized.
I am, &c.
Mr. Bayard to Mr. Hardinge.
DEPARTMENT or STATE,
Washington, August 9, 1886.
SIR : I regret that it has become my duty to draw the attention of
Her Majesty's Government to the unwarrantable and unfriendly
treatment, reported to me this day by the United States consul-general
at Halifax, experienced by the American fishing schooner Rattler,
of Gloucester, Mass., on the 3d instant, upon the occasion of her being
driven by stress of weather to find shelter in the harbor of Shelburne,
Nova Scotia.
She was deeply laden and was off the harbor of Shelburne when
she sought shelter in a storm and cast anchor just inside the harbor'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 dis-
charged their pistols as a signal, and an officer from the Terror again
boarded the Rattler and threatened to seize the vessel unless the cap-
tain reported at the custom-house.
The vessel was then detained until the captain reported at the cus-
tom-house, after which she was permitted to sail.
The hospitality which all civilized 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 misconduct may be prop-
erly rebuked by the Government of Her Majesty.
I have, &c., T. F. BAYARD.
Mr. Presson to Mr. Bayard.
COLLECTOR'S OFFICE,
Gloucester, Mass., August 9, 1886. (Received August 11.)
SIR: I am requested to forward the inclosed affidavit of Capt.
Daniel McDonald of schooner Hereward, of Gloucester, in regard to
his detention at Cape Canso, Nova Scotia, July 2.
Very respectfully, &c.,
D. S. PRESSON,
Collector.
PERIOD FROM 1871 TO 1905. 825
[Inclosure.]
''Affidavit of Captain McDonald, of the schooner Hereward.
GLOUCESTER, August 6, 1886.
I, Daniel McDonald, master of American schooner Hereward, of
Gloucester, do depose and say : That I went into Cape Canso, N. S.,
with my vessel, on the afternoon of July 2, and went to the custom-
house and reported. One of my crew went on shore without authority
and failed to return at night; some of the crew thought he had de-
serted and engaged another man to take his place (all without any
authority from me), but he returned the next morning.
The next morning the collector, Mr. Young, came on board and
demanded my papers (charging me with shipping a man). I gave
them to him, and he kept them until 10.30 o'clock that eve, when he
returned them to me. As I was all ready to sail that morning, it
detained the vessel two (2) days in that port, as the next day was
Sunday.
DANIEL M'DONALD.
MASSACHUSETTS, Essex, ss:
AUGUST 6, 1886.
Personally appeared D. McDonald, and made oath to the above.
Before me.
[L. s.] AARON PARSONS,
Notary Public.
Mr. Hardinge to Mr. Bayard.
WASHINGTON, August 10, 1886.
(Received August 11.)
SIR : I have the honor to acknowledge the receipt of your note of
yesterday, drawing the attention of Her Majesty's Government to
the alleged unwarrantable and unfriendly treatment experienced by
the American fishing schooner Rattler, on the 3d instant, upon the
occasion of her being driven by stress of weather to find shelter in
the harbor of Shelburne, Nova Scotia.
I have, &c., CHARLES HARDINGE.
Mr. Presson to Mr. Bayard.
CUSTOM-HOUSE, GLOUCESTER, MASS.,
Collector's Office, August 10, 1886. (Received August 11.)
SIR : In reply to your telegram of 5th instant I inclose affidavits of
Captain Cunningham, of schooner Rattler, and his passenger and
crew, in relation to their treatment at Shelburne, Nova Scotia, on
going in there for shelter on 3d instant.
Very respectfully, &c., D. S. PRESSON,
Collector.
826 CORRESPONDENCE, ETC.
[Inclosure.]
Affidavit of Captain Cunningham, of the schooner Rattler.
I, Augustus F. Cunningham, master of the schooner Rattler, of
Gloucester, being duly sworn, do depose and say: That on Thursday,
July 8, 1886, we sailed from Gloucester on a mackerel cruise. On
Tuesday August 3d (having secured a fare of mackerel and while on
our passage home) , at 7 p. m., the wind blowing hard, the sea being
rough, and our vessel being deeply loaded, with two large seine-
boats on deck, we put into the harbor of Shelburne, N. S., for shelter.
Just inside of the harbor we were brought to by a gun fired from the
Canadian cruiser Terror, Captain Quigley, and came to anchor.
Immediately a boat from the Terror came alongside and its com-
mander, Lieutenant Bennett, asked why we were in the harbor. My
reply was, " For shelter." Then taking the name of our vessel, names
of owner and captain, where from, where bound, and how many fish
we had, and forbidding any of the crew to go on shore, he returned
to the Terror for further instructions.
Boarding us again, after a lapse of perhaps forty-five minutes, he
put two armed men on board of us, asked for our crew-list, and said
if I remained until morning I must enter at the custom-house, but if
I could sail in the night to tell his men to fire a revolver and a boat
would be sent to take them off. At 12 o'clock that night, preferring
to risk the dangers of the sea to the danger of seizure, I ordered the
anchor hove short, the mainsail hoisted preparatory to sailing, and
told one of the Terrors men to fire a revolver, which he did.
Receiving no reply, and seeing no signs of life on board the Terror,
I ordered the revolver to be fired again. This brought a boat from
the Terror, commanded by First Lieutenant Bennett, who boarded
my schooner, gave each of the two men on board an extra revolver,
and told me the orders of Captain Quigley were, that I should not
leave the port until I had reported to the customs officer at Shel-
burne. Upon receipt of these orders I payed out the chain and low-
ered the mainsail. The boat went back to the Terror and immedi-
ately returned with Captain Quigley on board.
He denied the permission given me by his first officer to sail in the
night and ordered me to go to Shelburne and enter and clear at the
custom-house there.
I asked him how I should go, as we were 8 miles distant from the
custom-house. His reply was, " I don't care, sir, how you go ; but
you must go there ; and on your return show your clearance to me or
suffer the consequences." He told me my vessel was in charge of his
two men, and to them he gave these orders :
" Gunner, you will allow the captain to proceed to Shelburne with
the vessel, come to anchor, take his dory and two men, no more, and
go on shore to enter. Allow them to bring nothing off in their dory ;
and if a man puts his hand oa the wheel to go to sea, chop his arm off
or shoot him, as the case may require."
I asked him if the law was not very strict that did not allow a ves-
sel arriving at night after office hours to proceed before daylight, and
why the law was enforced. He replied, it was to prove that Cana-
dian harbors were a benefit to American fishermen.
PERIOD FKOM 18tt TO 1905. 827
At daylight we got under way and started for Shelburne, and Lieu-
tenant Bennett and four more armed men came on board. We ar-
rived at Shelburne about 4.30 o'clock a. m. I went on shore with
Lieutenant Bennett and his boat's crew, woke up Collector Atwood,
who, after inquiring of the lieutenant if there were any charges
against me, entered and cleared the vessel.
On my return to the vessel the lieutenant requested me to exhibit
my clearance, which I did, and we were then allowed to depart. I
would state that when we first entered the harbor of Shelburne a
Canadian vessel entered just ahead of us, and she was unmolested,
sailing at her pleasure during the night, which showed plainly that
an American vessel was not accorded the same treatment in Canadian
ports as are Canadian vessels, although, as the collector at Halifax
informed me in June last, the same laws applied to Canadian vessels
as to American vessels.
During the whole difficulty my language was respectful and I
quietly submitted to the detention, to the sarcastic language and over-
bearing conduct of Captain Quigley, but I deem my treatment and
detention severe and unjust and an outrage upon the international
courtesy that should exist between two friendly nations.
A. F. CUNNINGHAM.
I, Lawson C. Rich, of Canton, N. Y., a passenger on board schooner
Rattler with Captain Cunningham, do depose and say that the above
statement of Captain Cunningham is true in every particular.
LAWSON CARTER RICH.
MASSACHUSETTS, Essex, ss:
AUGUST 9, 1886.
Personally appeared A. F. Cunningham and L. C. Rich and made
oath to the truth of the above statement.
Before me.
[L. s.] AARON PARSONS,
Notary Public.
We, William Bowie, Frederick Brooks, Charles Lowry, Charles
Hart, George Vibert, John Hart, John Lowry, Daniel McLean, Alex-
ander O'Neil, James Levange, and Martin Guthrie, of the crew of
schooner Rattler, do depose and say that the above statement of Cap-
tain Cunningham is true in every particular.
WM. BOWIE. JOHN LOWREB.
FRED. BROOKS. DAN McLEAN.
CHARLES LOWRY. ALEX. O'NEIL.
CHARLES HART. JAMES LEVANGE.
GEORGE VIBERT. MARTIN GUTHRIE.
JOHN G. HART.
MASSACHUSETTS. Essex, ss:
AUGUST 10 1886.
Personally appeared the above-named persons, crew of schooner
Rattler, and made oath to the truth of the above.
Before me.
[L. s.] AARON PARSONS,
Notary Public.
828 CORRESPONDENCE, ETC.
Mr. Presson to Mr. Bayard.
CUSTOM-HOUSE, GLOUCESTER, MASS.,
Collector's Office, August 14, 1886.
(Received August 16.)
SIR: I inclose affidavit of Capt. Reuben Cameron, of schooner
Golden Hind, of this port, who was forbidden to enter the harbor of
Port Daniels, N. S., for water. This being a clear violation by the
Canadian Government of the treaty of 1818, I respectfully submit
the case for your consideration.
Very respectfully, yours, &c., D. S. PRESSON,
Collector.
[Inclosure.]
Affidavit of Captain Cameron, of the schooner Golden Hind.
I, Reuben Cameron, master of the American schooner Golden Hind,
of Gloucester, do depose and say : That we sailed from Gloucester
July 3, 1886, bound to the Bay of St. Lawrence, on a fishing voyage.
That on or about July 23, being out of water, started to go into the
Bay of Chaleurs (Port Daniel) to fill water. At the entrance of the
bay, four or five miles from land, was met by the Canadian schooner
E. F. Conrad; an officer came on board, took my name, name of ves-
sel, tonnage, name of owner, &c., and ordered me not to go into Bay
of Chaleurs. He also furnished me with a printed " warning," with
this indorsement written thereon : " Don't enter the Bay of Chaleurs,
N. S." After this warning I put to sea, and was obliged to go across
to Tignish, P. E. I., to obtain a supply of water for use of my crew.
This delayed me at least a week, and the loss of at least a good trip
of mackerel, as during that time another vessel from the same firm,
in five days, on the same fishing grounds, took 460 barrels of mackerel,
and caused a loss to my owners of at least five thousand dollars
($5,000).
REUBEN CAMERON,
Master.
We, the undersigned, a part of the crew of the schooner Golden
Hind, do depose and say that the above statement of Captain Cam-
eron is true in every particular.
JAMES A. POWELL.
GILBERT SMITH.
AUGUST 13, 1886.
MASSACHUSETTS, Essex, ss:
Personally appeared Reuben Cameron, James A. Powell, and Gil-
bert Smith, and made oath to the above.
Before me.
[L. s.] AARON PARSONS, N. P.
PERIOD FROM 1871 TO 1905. 829
Mr. Bayard to Sir L. West.
DEPARTMENT or STATE,
Washington, August 17, 1886.
SIR : An affidavit has been filed in this Department by Reuben Cam-
eron, master of the American schooner Golden Hind, of Gloucester,
Mass., setting forth that, on or about the 23d of July ultimo, being
out of water, he attempted to put into Port Daniel, Bay of Chaleurs,
to obtain a fresh supply ; that at the entrance of the bay, about four
or five miles from land, the Golden Hind was boarded by an officer
from the Canadian schooner E. F. Conrad, and by him ordered not to
enter the Bay of Chaleurs; that said officer furnished Captain Cam-
eron with a printed warning with this indorsement written thereon:
" Don't enter the Bay of Chaleurs, M. S. ; " and that in consequence
of said act of the Canadian officer the Golden Hind was obliged to go
across to Tignish, Prince Edward Island, to obtain water, whereby
his fishing venture was interfered with, and loss and injury caused
to the vessel and her owners.
I have the honor to protest against this act of officers of her Britan-
nic Majesty as not only distinctly unfriendly and contrary to the
humane usages of civilized nations, but as in direct violation of so
much of Article I of tjie convention of 1818 between the United
States and Great Britain as secures forever to American fishermen
upon the British North American coast admission to the bays or
harbors thereof for the purpose of obtaining water. And for all loss
or injury which may be shown to have accrued by reason of the act in
question the Government of Her Britannic Majesty will be held justly
liable.
I have further the honor to ask with all earnestness that the Gov-
ernment of Her Britannic Majesty will cause steps to be forthwith
taken to prevent and rebuke acts so violative of treaty and of the
common rites of hospitality.
I have, &c., T. F. BAYARD.
Sir L. West to Mr. Bayard.
WASHINGTON, August 18, 1886.
( Received August 19.)
SIR : I have the honor to acknowledge the receipt of your note of
yesterday, protesting against the action of the officer of the Dominion
schooner E. F. Conrad, in forbidding the master of the American
schooner Golden Hind to enter the Bay of Chaleur for the purpose of
renewing his supply of fresh water at that place.
I have, &c.,
L. S. SACKVILLE WEST.
830 CORRESPONDENCE, ETC.
% Mr. Bayard to Sir L. West.
DEPARTMENT OF STATE,
Washington, August 18, 1886.
SIR: Grave cause of complaint is alleged by the masters of several
American fishing vessels, among which can be named the schooners
Shiloh and Julia Ellen, against the hostile and outrageous misbe-
havior of Captain Quigley, of the Canadian cruiser Terror, who, upon
the entrance of these vessels into the harbor of Liverpool, Nova
Scotia, fired a gun across their bows to hasten their coming to, and
placed a guard of two armed men on board each vessel, who remained
on board until the vessels left the harbor.
In my note to your legation of the 9th instant I made earnest re-
monstrance against another unfriendly act of Captain Quigley,
against the schooner Rattler, of Gloucester, Mass., which, being fulfy
laden and on her homeward voyage, sought shelter from stress of
weather in Shelburne Harbor, Nova Scotia, and was then compelled
to report at the custom-house, and have a guard of armed men kept
on board.
Such conduct cannot be defended on any just ground, and I draw
your attention to it in order that Her Britannic Majesty's Govern-
ment may reprimand Captain Quigley for his unwarranted and
rude act.
It was simply impossible for this officer to suppose that any inva-
sion of the fishing privileges of Canada was intended by these vessels
under the circumstances.
The firing of a gun across their bows was a most unusual and
wholly uncalled for exhibition of hostility, and equally so was the
placing of armed men on board the peaceful and lawful craft of a
friendly nation.
I have, &c., T. F. BAYARD.
Sir L. West to Mr. Bayard.
WASHINGTON, August 18, 1886.
(Received August 19.)
SIR : With reference to your note of the 2d ultimo reporting to me
the detention of the American schooner City Point, of Portland, Me.,
by the Canadian authorities at the port of Shelburne, Nova Scotia,
and protesting against their action in so doing, I have the honor to
inform you, in accordance with instructions which I have received
from Her Majesty's Government, that the master of the schooner
City Point committed a breach of the customs laws of the Dominion
by not reporting to customs and landing part of the crew and lug-
gage. The vessel in question was subsequently released on deposit
of $400.
I have, &c., L. S. SACKVTT.T.E WEST.
PEKIOD FKOM 18*71 TO 1905. 831
Sir L. West to Mr. Bayard.
WASHINGTON, August 19, 1886.
(Received August 20.)
SIR : I have the honor to acknowledge the receipt of your note of
yesterday informing me of the causes of complaint alleged by the
masters of several American fishing vessels against Captain Quigley,
of the Canadian cruiser Tensor.
I have, &c., L. S. SACKVILLE WEST.
Sir L. West to Mr. Bayard.
BRITISH LEGATION, September 1, 1886.
(Received September 2.)
SIR : With reference to your note of the 30th of July last, calling
attention to the cases of the Thomas F. Bayard and the Mascot. I
have the honor to inform you, in pursuance of instructions from Her
Majesty's secretary of state for foreign affairs, that immediate inquiry
will be made into the matter with the view that the right secured by
the convention of 1818 to United States fishermen shall in no wise be
prejudiced.
I have, &c., L. S. SACKVILLE WEST.
The Earl of Iddesleigh to Mr. Phelps.
FOREIGN OFFICE, September 1, 1886.
SIR: Her Majesty's Government have been anxiously considering
what further action they can take in the present state of the Canadian
Fisheries question to advance matters towards the friendly and
equitable solution so much desired by both Governments, and I
beg now to offer the following observations in order to explain the
difficulties which present themselves.
There are two distinct issues involved. The one relates to the pre-
cise limits of the Treaty rights of American fishermen in Canadian
waters; the other to the legality of the measures adopted by the
Canadian authorities (having regard to the existing legislation)
against certain American fishing- vessels for an alleged violation of
Treaty.
Both those issues are at the present time sub judice in the Canadian
Courts, and it is not improbable that they will be carried before the
competent Tribunal of Appeal in this country.
If the ultimate decision should be favourable to the views of your
Government as regards the interpretation of the Treaty of 1818, the
principal question will be disposed of; and if the decision should be
adverse to those views, it will not preclude further discussion between
the two Governments and the adjustment of the question by diplo-
matic action. But it is clearly right, and according to practice and
precedent, that such diplomatic action should be suspended during
the completion of the judicial inquiry.
832 CORRESPONDENCE, ETC.
In the present case, however, there is every reason to desire that the
two Governments, without awaiting the result of the judicial pro-
ceedings, should allay the popular feeling which these differences
have excited in both countries, by an attempt to effect such an equi-
table revision of the Treaty as may reconcile conflicting interests.
With this view my predecessor addressed a despatch to Her
Majesty's Minister at Washington, containing a Report from the
Canadian Government on all the points involved, and instructed
him to communicate it to your Government, and to invite their
friendly observations upon that document, in the hope that such an
interchange of views might lead to some basis of negotiation.
No reply has been received by Her Majesty's Government to that
communication, but assurances have repeatedly been exchanged
between the two Governments of their desire to come to an arrange-
ment.
The hopes which were entertained at one time of a settlement
on a broad and comprehensive basis by means of a new Commercial
Treaty were unfortunately frustrated by the rejection of the pro-
posal for a Joint Commission.
It may be, however, that a more restricted basis might be acceptable
to your Government, such, for instance, as an arrangement limited
entirely to the fishery interests.
It is evident that the great desire of both Governments to arrive
at an equitable arrangement cannot be attained unless they are both
prepared to make some concessions.
The nature of the concessions which it would be in the power of
this country to make with reference to the Canadian fisheries are well
known : but Her Majesty's Government, who have naturally been in
constant communication with the Dominion Government on this
question, are quite unable to make any proposal to them of the nature
contemplated, unless they are informed to what extent the United
States Government are disposed to meet them in the way of con-
cession.
Her Majesty's Government therefore earnestly hope that the Gov-
ernment of the United States may find themselves able to view the
position in the light in which I have placed it before you, and by a
frank declaration of the nature of the benefits which they are pre-
pared to offer on their side to facilitate the efforts of Her Majestyrs
Government to take some immediate action towards the settlement
of this most important and urgent question.
I have, &c.,
IDDESLEIGH.
E. J. PHELPS, Esq.
Mr. Bayard to Sir L. West.
DEPARTMENT or STATE,
Washington, September 10, 1886.
SIR: It is my duty to ask you to bring to the attention of Her
Britannic Majesty's Government the treatment lately experienced by
an American fishing vessel, the Mottie Adams, of Gloucester, Mass.,
at the hands of the collector of customs at Port Mulgrave, in the
Strait of Canso, Nova Scotia.
PERIOD FROM 1871 TO 1905. 833
By the sworn statement of Solomon Jacobs, master of the schooner
Mollie Adams, it appears that on the 31st ultimo, whilst on his home-
ward voyage laden with fish from the fishing banks, he was compelled
to put into Port Mulgrave to obtain water, and duly made report
and entry at the custom house. The water-tank of the vessel having
been burst in his voyage by heavy weather and thus rendered useless,
he asked permission of the collector to purchase two or three barrels
to hold a supply of water for his crew on their homeward voyage of
about 500 miles.
This application was refused and his vessel threatened with seizure
if barrels were so purchased. In consequence the vessel was com-
pelled to put to sea with an insufficient supply of water, and in trying
to make some other port wherein to obtain water a severe gale was
encountered which swept away his deck-load of fish and destroyed
two seine boats.
This inhospitable, indeed inhuman, conduct on the part of the cus-
toms officer in question should be severely reprimanded, and for the
infraction of treaty rights and commercial privileges compensation
equivalent to the injuries sustained will be claimed from Her
Majesty's Government.
I have, &c., T. F. BAYARD.
Sir L. West to Mr. Bayard.
WASHINGTON, September 11, 1886.
(Received September 14.)
SIR : I have the honor to acknowledge the receipt of your note of
yesterday's date calling attention to the case of the Mollie Adams.
I have, &c.,
L. S. SACKVILLE WEST.
Mr. Phelps to Lord Iddesleigh.
LEGATION OF THE UNITED STATES,
London, September 11, 1886.
MY LORD: I have the honor 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 min-
ister 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 ex-
pressed to you orally in recent interviews.
92909°— ft. Doc. 870, 61-3, vol 3 14
834 CORRESPONDENCE, ETC.
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 pre-
sented 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 oc-
cupying 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 no^f
pending have been brought to a conclusion, Her Majesty's Govern-
ment do not feel justified in expressing an opinion upon them, either
as to facts or the legality of the action taken by the colonial author-
ities."
And your lordship remarks, in your note of September 1, " it is
clearly right, according to practice and precedent, that such diplo-
matic action should be suspended pending the completion of the
judicial inquiry."
This is a proposition to which the United States Government is
unable to acce"de.
The seizures complained of are not the acts of individuals claim-
ing private rights which can be dealt with only by judicial determi-
nation, 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 f acis
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 admin-
istered 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 com-
plaint 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 tri-
bunal on the international questions involved obtained.
PERIOD FROM 18"71 TO 1905. 835
The interpretation of a treaty when it becomes the subject of dis-
cussion 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 agree-
ment which were necessary to make it. Questions between indi-
viduals 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 insti-
tuted 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.
Still less could it consent to be made indirectly a party to the
suits by being required to await the result of such defense as the indi-
viduals whose property is implicated may be able and may think
proper to set up.
Litigation of that sort may be indefinitely prolonged. Meanwhile
fresh seizures of American vessels upon similar grounds are to be
expected, for which redress would in like manner await the decisions
of the local tribunals, whose jurisdiction the captors invoke and the
United States Government denies.
Nor need it be again pointed out, how different may be the question
involved between the Governments from that which these proceed-
ings raise in the Canadian courts. Courts in such cases do not ad-
minister treaties. They administer only the statutes that are passed
in pursuance of treaties. If a statute contravene the provisions of
a treaty, British courts are nevertheless bound by the statute. And
if, on the other hand, there is a treaty stipulation which no statute
gives the means of enforcing, the court cannot enforce it.
Although the United States Government insists that there is no
British or colonial act authorizing the seizures complained of, if the
British courts should nevertheless find such authority in any existing
statute, the question whether the statute itself or the construction
given it is warranted by the treaty would still remain. And also the
still higher question, whether if the strict technical reading of the
treaty might be thought to warrant such a result, it is one which ought
to be enforced between sovereign and friendly nations acting in the
spirit of the treaty.
The United States Government must therefore insist that, irre-
spective of the future result of the Canadian legal proceedings, the
authority and propriety of which is the subject of dispute, and with-
out waiting their conclusion, it is to Her Majesty's Government it
must look for redress and satisfaction for the transactions in question,
and for such instructions to the colonial authority as will prevent
their repetition.
While, as I have observed, Lord Rosebery declines to discuss the
question of the legality of these seizures, the able and elaborate report
on the subject from the Canadian minister of marine and fisheries.
836 CORRESPONDENCE, ETC.
which is made a part of it, attempts in very general terms to sustain
their authority. He says :
" It is claimed that the vessel (the David J. Adams] violated the
treaty of 1818, and consequently the statutes which exist for the en-
forcement of the treaty."
It is not clear from this language whether it is meant to be asserted
that if an act, otherwise lawful, is prohibited by a treaty, the com-
mission of the act becomes a violation of a statute which has no ref-
erence to it, if the statute was enacted to carry out the treaty, or
whether it is intended to say that there was in existence, prior to the
seizure of the vessel in question, some statute which did refer to the
act complained of and did authorize proceedings or provide a penalty
against American fishing vessels for purchasing bait or supplies in
a Canadian port to be used in lawful fishing.
The former proposition does not seem to require refutation. If the
latter is intended, I have respectfully to request that your lordship
will have the kindness to direct a copy of such act to be furnished to
me. I have supposed that none such existed, and neither in the re-
port of the Canadian minister, nor in the customs circulars or warn-
ings thereto appended, in which attention is called to the various legis-
lation on the subject, is any such act pointed out.
The absence of such statute provision either in the act of Parlia-
ment (59 Geo. Ill, c. 38) or in any subsequent colonial act, is not
merely a legal objection, though quite a sufficient one, to the validity
of the proceedings in question. It affords the most satisfactory
evidence that up to the time of the present controversy no such con-
struction has been given to the treaty by the British or by the colonial
parliament, as is now sought to be maintained.
No other attempt is made in the report of the Canadian minister to
justify the legality of these seizures.
It is apparent from the whole of it that he recognizes the necessity
of the proposed enactment of the act of the Canadian Parliament
already alluded to in order to sustain them.
This remark is further confirmed by the communciation from the
Marquis of Lansdowne, governor-general of Canada, to Lord Gran-
ville, in reference to that act, annexed by Lord Rosebery to his second
note to the British minister of July 23, 1886, a copy of which was
sent me by his lordship, in connection with his other note of same date
above referred to.
I do not observe upon other points of the minister's report not
bearing upon the points of note to Lord Rosebery. So far as they
relate to the communications addressed to the British minister by Mr.
Bayard, the Secretary of State will doubtless make such reply as may
seem to him to be called for.
In various other instances American vessels have been seized or
driven away by the provincial authorities when not engaged or pro-
posing to engage in any illegal employment.
Some of these cases are similar to that of the Adams, the vessels
having been taken possession of for purchasing bait or supplies to
be used in lawful fishing, or for alleged technical breach of custom-
house regulations, where no harm was either intended or committed,
and under circumstances in which for a very long time such regula-
tions have been treated as inapplicable.
PEEIOD FROM 1871 TO 1905. • 837
In other cases, an arbitrary extension of the three-mile limit fixed
by the treaty has been announced so as to include within it portions
of the high sea, such as the Bay of Fundy, the Bay of Chaleur, and
other similar waters, and American fishermen have been prevented
from fishing in those places by threats of seizure. I do not propose
at this time to discuss the question of the exact location of that line.
But only to protest against its extension in the manner attempted by
the provincial authorities.
To two recent instances of interference by Canadian officers with
American fishermen, of a somewhat different character, I am spe-
cially instructed by my Government to ask your lordship's attention,
those of the schooners Thomas F. Bayard and Mascot.
These vessels were proposing to "fish in wraters in which the right
to fish is expressly secured to Americans by the terms of the treat}'
of 1818; the former in Bonne Bay, on the northwest coast of New-
foundland, and the latter near the shores of the Magdalen Islands.
For this purpose the Bayard attempted to purchase bait in the port
of Bonne Bay, having reported at the custom-house and announced
its object. The Mascot made a similar attempt at Port Amherst in
the Magdalen Islands, and also desired to take on board a pilot.
Both vessels were refused permission by the authorities to purchase
bait, and the Mascot to take a pilot, and were notified to leave the
ports within twenty-four hours on penalty of seizure. They were
therefore compelled to depart, to break up their voyages, and to re-
turn home, to their very great loss. I append copies of the affidavits
of the masters of these vessels, stating the facts.
Your lordship will observe, upon reference to the treaty, not only
that the right to fish in these waters is conferred by it, but that the
clause prohibiting entry by American fishermen into Canadian ports,
except for certain specified purposes, which is relied on by the Cana-
dian Government in the cases of the Adams and of some other ves-
sels, has no application whatever to the ports from which the Bayard
and the Mascot were excluded. The only prohibition in the treaty
having reference to those ports is against curing and drying fish
there, without leave of the inhabitants, which the vessels excluded
had no intention of doing.
The conduct of the provincial officers toward these vessels was
therefore not merely unfriendly and injurious, but in clear and plain
violation of the terms of the treaty. And I am instructed to say
that reparation for the losses sustained by it to the owners of the
vessels will be claimed by the United States Government on their
behalf as soon as the amount can be accurately ascertained.
It will be observed that interference with American fishing vessels
by Canadian authorities is becoming more and more frequent, and
more and more flagrant in its disregard of treaty obligations and of
the principles of comity and friendly intercourse. The forbearance
and moderation of the United States Government in respect to them
appear to have been misunderstood and to have been taken advantage
of by the provincial government. The course of the United States
has been dictated, not only by an anxious desire to preserve friendly
relations, but by the full confidence that the interposition of Her
Majesty's Government would be such as to put a stop to the trans-
838 • CORRESPONDENCE, ETC.
actions complained of, and to afford reparation for what has already
taken place. The subject has become one of grave importance, and I
earnestly solicit the immediate attention of your lordship to the
question it involves, and to the views presented in my former note
and in those of the Secretary of State.
The proposal in your lordship's note that a revision of the treaty
stipulations bearing upon the subject of the fisheries should be at-
tempted by the Government, upon the basis of mutual concessions is
one that under other circumstances would merit and receive serious
consideration. Such a revision was desired by the Government of
the United States before the present disputes arose, and when there
was a reasonable prospect that it might have been carried into effect.
Various reasons not within its control now concur to make the present
time inopportune for that purpose, and greatly to diminish the hope
of a favorable result to such an effort. Not the least of them is the
irritation produced in the United States by the course of the Cana-
dian Government, and the belief thereby engendered that a new
treaty is attempted to be forced upon the United States Government.
It seems apparent that the questions now presented and the trans-
actions that are the subject of present complaint must be considered
and adjusted upon the provisions of the existing treaty, and upon the
construction that is to be given to them.
A just construction of these stipulations, and such as would consist
with the dignity, the interests, and the friendly relations of the two
countries, ought not to be difficult, and can doubtless be arrived at.
As it appears to me very important to these relations that the col-
lisions between the American fishermen and the Canadian officials
should terminate. I suggest to your lordship whether an ad interim
construction of the terms of the existing treaty cannot be reached by
mutual understanding of the Governments, to be carried out inform-
ally by instructions given on both sides, without prejudice to
ultimate claims of either, and terminable at the will of either, by
which the conduct of the business can be so regulated for the time
being as to prevent disputes and injurious proceedings until a more
permanent understanding can be had.
Should this suggestion meet with your lordship's approval, perhaps
you may be able to propose an outline for such an arrangement.
I am not prepared nor authorized to present one at this time, but
may hereafter be instructed to do so if the effort is thought advisable.
I have, &c.,
E. J. PHELPS.
Sir L. West to Mr. Bayard.
BRITISH LEGATION,
Washington, September 17, 1886.
(Received September 18.)
SIR : With reference to your note of the 30th of July last, calling
attention to alleged infractions of the convention of 1818 by the
authorities at Bonne Bay, Newfoundland, and at Port Amherst,
Magdalen Islands, I have now received instructions from Her
Majesty's secretary of state for foreign affairs to inform you of the
PERIOD FROM 1871 TO 1905. 839
steps which have been taken in the matter in consequence of the
protest of the United States Government.
On the arrival of your note in London, Her Majesty's secretary of
state for the colonies telegraphed to the officers administering the
Governments of Canada and Newfoundland calling attention to the
cases, and explaining that under the treaty of 1818 United States
fishermen have the right to fish off the coasts of the Magdalen Islands
and off certain coasts of Newfoundland, and stating that it was pre-
sumed that the customs officials in those places had not been
instructed in the same way as on other parts of the coast.
On the 25th ultimo the Governments of Canada and Newfound-
land were further instructed by dispatches from the colonial office
to make full reports on the subject of the complaints in question, and
it was recommended that special instructions should be issued to the
authorities at those places where the inshore fishery has been granted
by the convention of 1818 to the United States fishermen, calling
their attention to the provisions of that convention, and warning
them that no action contrary thereto may be taken in regard to
United States fishing vessels.
I may add that information has been received that the warning
notices referred to by you were discontinued in the beginning of
August.
I have, &c., L. S. SACKVTT.T.F. WEST.
Sir L. West to Mr. Bayard.
WASHINGTON, September 18, 1886.
(Keceived September 20.)
SIR: I have the honor to inform you that I am requested by the
Earl of Iddesleigh to state to you that immediate inquiry will be
made regarding the action of the officer of the Canadian schooner
E. F. Conrad, in the case of the United States schooner Golden Hind,
which formed the subject of your note of the 17th ultimo.
I have, &c.,
L. S. SACKVILLE WEST.
Nr. Bayard to Sir L. West.
DEPARTMENT OF STATE,
Washington, September 23, 1886.
SIR : I have the honor to bring to your attention an instance which
has been brought to my knowledge of an alleged denial of one of the
rights guaranteed by the convention of 1818, in the case of an Ameri-
can vessel.
Capt. Joseph E. Graham, of the fishing schooner A. R. Crittenden,
of Gloucester, Mass., states under oath that on or about the 21st of
July last, on a return trip from the open-sea fishing grounds to his
home port, and while passing through the Strait of Canso, he stopped
at Steep Creek for water. The customs officer at that place told him
that if he took in water his vessel would be seized; whereupon he
sailed without obtaining the needed supply, and was obliged to put
his men on short allowance of water during the passage homeward.
840 CORRESPONDENCE, ETC.
I have the honor to ask that Her Britannic Majesty's Government
cause investigation to be made of the reported action of the customs
officer at Steep Creek, and if the facts be as stated, that he be promptly
rebuked for his unlawful and inhumane conduct in denying to a vessel
of a friendly nation a general privilege, which is not only held sacred
under the maritime law of nations, but which is expressly confirmed
to the fishermen of the United States throughout the Atlantic coasts
of British North America by the first article of the convenion of 1818.
It does not appear that the A. R. Crittenden suffered other damage
by this alleged inhospitable treatment, but reserving that point the
incident affords an illustration of the vexatious spirit in which the
officers of the Dominion of Canada appear to seek to penalize and
oppress those fishing vessels of the United States, lawfully engaged in
fishing, which from any cause are brought within their reach.
I have, &c.,
T. F. BAYARD.
Sir L. West to Mr. Bayard.
BRITISH LEGATION,
Washington, September %5, 1886. (Received September 27.)
SIR: I have the honor to acknowledge the receipt of your note of
the 23d instant requesting that investigation should be made of the
reported action of the customs officer at Steep Creek, in the Straits of
Canso, in threatening the United States fishing schooner Crittenden
with seizure if she took in water, and to inform you that I have
advised Her Majesty's Government accordingly.
I have, &c.,
L. S. SACKVILLE WEST.
Lord Iddesleigh to Mr. Phelps.
FOREIGN OFFICE, October 11, 1886.
SIR : I have the honor to acknowledge the receipt of your note of
the llth ultimo, on the subject of the Canadian fisheries, and I beg
leave to acquaint you that the note is under the careful consideration
of Her Majesty's Government and that an answer will be returned as
early as possible.
I have, &c., IDDESLEIGH.
Sir L. West to Mr. Bayard.
WASHINGTON, October 12, 1886.
(Received October 13.)
SIR : With reference to your note of the 14th June relative to cer-
tain warnings alleged to have been given to United States fishing ves-
sels by the subcollector of customs at Canso, I have the honor to
inclose to you herewith by instruction from the Earl of Iddesleigh
PERIOD FROM 1871 TO 1905. 841
an extract from an approved report of the Canadian privy council
dealing with this question.
I have, &c., L. S. SACKVILLE WEST.
[Inclosure.]
Extract from a certified copy of a report of a committee of the honor-
able the privy council approved by his excellency the administrator
of the Government in council on the 16th August, 1886.
The committee of the privy council have had under consideration
a dispatch dated 15 July, 1886, from the secretary of state for the
colonies in which he asks for a report from the Canadian Government
on the subject of an inclosed note from Mr. Secretary Bayard to the
British minister at Washington relating to certain warnings alleged
to have been given to United States fishing vessels by the subcollector
of customs at Canso.
Mr. Bayard states:
First. That the masters of the four American fishing vessels of
Gloucester, Mass., Martha C. Bradley, Rattler, Eliza Boynton, and
Pioneer, have severally reported to the consul-general at Halifax,
that the subcollector of customs at Canso had warned them to keep
outside an imaginary line drawn from a point three miles outside
Canso head to a point three miles outside St. Esprit on the Cape
Breton coast.
Second. That the same masters also report that they were warned
against going inside an imaginary line drawn from a point three
miles outside North Cape, in Prince Edward Island, to a point three
miles outside East Point on the same island.
Third. That the same authority informed the masters of the vessels
referred to that they would not be permitted to enter Bay Chaleur.
The minister of marine and fisheries, to whom the dispatch and
inclosures were referred, observes that the instructions issued to col-
lectors of customs authorized them in certain cases to furnish United
States fishing vessels with a copy of the circular hereto attached, and
which constitutes the only official " warning " collectors of customs
are empowered to give. It was to be presumed that the subcollector
of customs at Canso, as all other collectors, would carefully follow
out the instructions as received, and that therefore no case such as
that alleged by Mr. Secretary Bayard would be likely to arise.
The minister states, however, so soon as the dispatch above referred
to was received he sent to the subcollector at Canso a copy of the alle-
gations, and requested an immediate reply thereto.
The subcollector, in answer, emphatically denies that he has ordered
any American vessel out of any harbor in his district or elsewhere, or
that he did anything in the way of warning, except to deliver copies
of the official circular above alluded to, and states that he boarded no
United States vessel other than the Annie Jordan and the Hereward,
and that neither the Martha C. Bradley, Rattler, or Pioneer, of Glou-
cester, have, during this season, reported at his port of entry. He,
with equal clearness, denies that he has warned any United States
fishing vessels to keep outside the line drawn from Cape North to
East Point, alluded to by Mr. Secretary Bayard, or that they would
not be permitted to enter Bay des Chaleurs.
842 CORRESPONDENCE, ETC.
The minister has every reason to believe the statements made by
the subcollector at Canso, and, taking into consideration all the cir-
cumstances of the case, is of the opinion that the information which
has reached the Secretary of State does not rest upon a trustworthy
basis.
With reference to the concluding portion of Mr. Bayard's note,
the minister observes that the occasion of the present dispatch, which
has to deal mainly with questions of fact, does not render it necessary
for him to enter upon any lengthened discussion of the question of
headland limits.
Mr. Bayard to Sir L. West.
DEPARTMENT or STATE,
"Washington, October 19, 1886.
SIR: 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 col-
lector 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, 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 com-
mon 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 analo-
gous 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 pre-
rogatives 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 territorially 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
PERIOD FROM 1871 TO 1905. 843
seas, carrying on, under shelter of the flag of the United States, legiti-
mate commerce. The Government which you so 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, guaran-
teed to them by two successive treaties between the United States and
Great Britain.
These fishermen also, I may be permitted to remind you, were en-
gaged in no nefarious trade. They pursue one of the most useful and
meritorious of industries. They gather from the seas, without detri-
ment to others, a food which is nutritious and cheap, for the use of an
immense population. They belong to a stock of men which contrib-
uted before the Revolution most essentially to British victories on the
Northeastern Atlantic, and it may not be out of place to say they have
shown since that Revolution, when serving in the Navy of the United
States, that they have lost none of their ancient valor, hardihood, and
devotion to their flag.
The indemnity which the United States has claimed, and which
Great Britain has conceded, for the visitation and search of isolated
merchantmen seized on remote African seas on unfounded suspicion
of being slavers, it cannot do otherwise now than claim, with a grav-
ity which the importance of the issue demands, for its fishermen
seized on waters in which they have as much right to traverse for
shelter as have the vessels by which they are molested. This shelter,
it is important to observe, they will as a class be debarred from if
annoyances such as I now submit to you are permitted to be inflicted
on them by minor officials of the British Provinces.
Fishermen, as you are aware, have been considered, from the use-
fulness of their occupation, from their simplicity, from the perils to
which they are exposed, and from the small quantity of provisions
and protective implements they are able to carry with them, the
wards of civilized nations; and it is one of the peculiar glories of
Great Britain that she has taken the position — a position now gen-
erally accepted — that even in time of war they are not to be the sub-
jects of capture by hostile cruisers. Yet, in defiance of this immu-
nity thus generously awarded by humanity and the laws of nations,
the very shelter which they own in these seas, and which is ratified
to them by two successive treaties, is to be denied to them, not, I am
844 CORRESPONDENCE, ETC.
confident, by the act of the wise, humane, and magnanimous Govern-
ment you represent, but by deputies of deputies permitted to pursue,
not uninfluenced by local rivalry, these methods of annoyance in
fishing waters which our fishermen have as much right to visit on
lawful errands as those officials have themselves. For let it be re-
membered that by annoyances and expulsions such as these the door
of shelter is shut to American fishermen as a class.
If a single refusal of that shelter, such as the present, is sustained,
it is a refusal of shelter to all fishermen pursuing their tasks on those
inhospitable coasts. Fishermen have not funds enough nor outfit
enough, nor, I may add, recklessness enough to put into harbors
where, perfect as is their title, they meet with such treatment as that
suffered by Captain Forbes.
To sanction such treatment, therefore, is to sanction the refusal to
the United States fishermen as a body of that shelter to which they
are entitled by ancient right, by the law of nations, and by solemn
treaty. Nor is this all. That treaty is a part of a system of mutual
concessions. As was stated by a most eminent English judge in the
case of Sutton v. Sutton (1 Myl. & R., 675), which I have already
noticed, it was the principle of the treaty of peace, and of the trea-
ties which followed between Great Britain and the United States, that
the " subjects of the two parts of the divided Empire should, not-
withstanding the separation, be protected in the mutual enjoyment "
of the rights those treaties affirmed. If, as I cannot permit myself
to believe, Great Britain should refuse to citizens of the United States
the enjoyment of the plainest and most undeniable of these rights,
the consequences would be so serious that they cannot be contem-
plated by this Government but with the gravest concern.
I have, &c.,
T. F. BAYARD.
Mr. Bayard to Sir L. West.
DEPARTMENT OF STATE,
Washington, October 20, 1886.
SIR : Permit me to ask you to draw the attention of your Govern-
ment to the case set forth in the inclosed affidavit of Murdock Kemp,
master of the American fishing vessel Pearl Nelson, of Provincetown,
Mass., which has been subjected to treatment, by the customs officials
at Arichat, Nova Scotia, inconsistent with the international law of
ordinary amity and hospitality, and also plainly violative of treaty
rights under the convention of 1818 between Great Britain and the
United States.
The vessel in question was compelled by stress of weather to seek
shelter in the harbor of Arichat, Nova Scotia, and arrived late at
night, when the custom-house was closed.
Before the custom-house was opened the next day the captain went
there, and after waiting over an hour the collector arrived, and the
usual inward report was made and permission asked to land the cloth-
ing of a sailor lost overboard, whose family resided in that vicinity.
He was then informed that his vessel was seized for allowing his
crew to go ashore the night before before reporting at the custom-
house.
PERIOD FROM 1871 TO 1905. 845
The cruel irony of this was apparent when the collector knew such
report was impossible, and that the landing of the crew was usual
and customary, and that no charge of smuggling had been suggested
or was possible under the circumstances.
To compel the payment of a fine, or " a deposit " of $200, which is
practically the same in its results, was harsh and unwarranted, and
was adding a price and a penalty to the privilege of shelter guaran-
teed to American fishermen by treaty.
This vessel was a fishing vessel, and, although seeking to exercise
no commercial privileges, was compelled to pay commercial fees, such
as are applicable to trading vessels, but at the same time was not
allowed commercial privileges.
I beg you will lose no time in representing the wrong inflicted upon
an unoffending citizen of the United States, and procure the adoption
of such orders as will restore the money so compelled to be deposited.
I am, sir, &c.,
T. F. BAYARD.
[Inclosure.]
Schooner Pearl Nelson.
UNITED STATES OF AMERICA,
District of Massachusetts:
I, Murdock Kemp, of Provincetown, in Massachusetts, a citizen of
the United States, on my oath do say that I was master and part
owner of the schooner Pearl Nelson, a vessel of the United States
duly licensed - — , 1886, for the fisheries, and holding a permit to
touch and trade during the existence of said license.
I further say that the crew of said vessel were shipped on wages at
Provincetown and Boston for a fishing voyage to the Grand Banks
and return to Provincetown for discharge. Said schooner, with
license and permit as aforesaid, sailed May 29, 1886, from Province-
town, and on her passage home touched at Arichat, Cape Breton,
driven in there by stress of weather. Sailed by the wind from Bank
Quero, and blowing fresh, a heavy sea running, and foggy, made
Point Michaux, 9 miles from Arichat. The vessel was deep; her
dories floated on deck in her lee waist, wind being about west. I con-
cluded to make a harbor and wait for better weather and wind. I
anchored the vessel in Arichat Harbor at 11 p. m., September 7, 1886.
I had lost a man on the Grand Banks, named James Sampson, who
belonged to Arichat, and I wanted to land his effects if the customs
officers would allow me to. Some of my crew belonged in that neigh-
borhood. William Babins, my cook, and nine others of the crew
took boats off the deck and went ashore without asking my permis-
sion. I saw them, but had never known there was any objection. I
had been in this and other British North American ports frequently
and witnessed the landing from my own and other vessels' crews, but
never before heard such landing was illegal or improper. These men
took nothing from the vessel with them, nor carried away anything
but the clothes they wore.
From the time I left Provincetown I had been into no port any-
where. Next morning after my arrival in Arichat, at 8| o'clock, I
went ashore to enter at the custom-house, and found it closed. I
called at 9 o'clock and it was not open. I went again at 10 o'clock
ind found the collector opening the office door. I made the regular
846 CORRESPONDENCE, ETC.
inward report to him and requested permission to land the clothes of
James Sampson, who had been lost from my vessel on the Grand
Banks. He told me he had sent a man for me. After I got there
this man came in. The officer was holding my papers and told the
man to go back and take charge of the vessel. I asked him why he
held my papers; he replied he seized her because I had allowed my
men to go ashore before reporting at the custom-house; that all he
would tell me was he said he would telegraph to Ottawa and find out
what to do with me; and he did telegraph immediately. About 5
o'clock p. m. the collector received an answer, and told me to deposit
$200 and the vessel would be released. The collector would not allow
me to land this dead man's clothes until after I had paid the $200
fine. I gave the clothes to the shopkeeper to give to Sampson's
widow or friends. I came out of Arichat about 11 a. m. on the 8th
of September, 1886, having bought there one bushel of potatoes with
the collector's permission, and arrived at Provincetown September
14, 1886. I sailed from Arichat with all my crew on board, and had
not at any time intended to leave any of my crew at that port. They
were hired men, shipped to be discharged on return at Provincetown,
and on our arrival there were all paid off and discharged.
Some of the crew that went ashore at Arichat returned aboard as
early as 7 o'clock and all were aboard about the time the vessel was
seized. I gave them no money there and had none myself. I further
say I did not enter Arichat with any intention of violating any law
of the Dominion of Canada, nor for any business, but solely because
of the stress of weather that had driven me there. It was mere kind-
ness only that prompted me to offer to land Sampson's clothes there
where his friends could get them. There was no profit to the vessel,
crew, or myself expected in so doing, or attempted to be gained in
entering the port of Arichat other than shelter from the stress of
weather we had been under from Quero Bank. If any revenue law
of Canada was violated by my vessel or by myself, the same was done
through ignorance and inadvertence and not with any intention to
defraud the revenue or offend the laws.
MURDOCK KEMP.
Personally appeared before me Murdock Kemp, at Provincetown,
State of Massachusetts, U. S. A., this 27th day of September, 1886,
who subscribed and made oath to the foregoing.
[SEAL.] JAMES GIFFORD,
Notary Public.
Sir L. West to Mr. Bayard.
WASHINGTON, October 21, 1886.
(Received October 22.)
SIR : I have the honor to acknowledge the receipt of your notes of
the 19th and 20th instant, requesting me to draw the attention of Her
Majesty's Government to the proceedings of the Canadian authorities
in the cases of the United States fishing vessels Everett Steels and
Pearl Nelson, and to inform you that I have lost no time in com-
municating copies of those documents to the Earl of Iddesleigh.
I have, &c.,
L. S. SACKVILLE WEST.
PERIOD FROM 1871 TO 1905. 847
Mr. Bayard to Sir L. West.
DEPARTMENT OF STATE,
Washington, October 27, 1886.
SIR: I inclose copies of two letters received at this Department
from George Steele, president of the American Fishery Union at
Gloucester, Mass.
The object of these letters is to obtain authentic information of the
administration of Canadian laws regulating the sale and exportation
of fresh herring from Grand Manan Island and its vicinity, a trade
which, the writer avers, has been carried on almost exclusively in
American vessels for many years.
By the statements of the letter of Mr. Steele dated October 25, it
appears that although the vessels employed in this trade are duly reg-
istered in their home port as fishing vessels, yet that so far as the pro-
posed trade is concerned, they are not manned nor equipped, nor in
any way prepared for taking fish, but their use is confined to the
carriage of fish as merchandise to ports in the United States, a com-
mercial transaction pur et simple.
May I ask the favor of an early response to the inquiries pro-
pounded by Mr. Steele?
I have, &c., T. F. BAYARD.
[Inclosure No. 1.]
Mr. Steele to Mr. Bayard.
GLOUCESTER, MASS., October 18, 1886.
(Eeceived October 20.)
SIR: The season is approaching when American vessels have been
accustomed to buy herring at the Grand Manan Island and vicinity,
and bring them to Boston, Gloucester, New York, and Philadelphia.
The present position of the Dominion Government as to that trade
concerns our interests greatly, and the fish trade desire to be informed
whether that Government now considers the purchase of herring as
open to American vessels, either when registered or licensed, with
permit to trade.
We do not wish to explore their power of seizing or detaining these
vessels, or of inflicting fines. If they object to our vessels continuing
in that business, we prefer to keep away from those shores until the
Dominion Government is better advised.
I apply to you for this information, which pur merchants need,
because I know of no other mode of obtaining it in a reliable shape.
I am, &c.,
GEO. STEELE,
President American Fishery Union.
P. S. — This trade in winter herring has been carried on in our ves-
sels almost exclusively for many years, and fifty or a hundred cargos
come in usually during the fall, winter, and spring.
They are largely consumed as food, and to some extent used as
bait in our winter 'fishing to Georges and the Banks.
It is very rare for a British vessel to bring herring to our ports,
848 CORRESPONDENCE, ETC.
flnclosure No. 2.]
Mr. Steele to Mr. Bayard.
GLOUCESTER, MASS., October %5, 1886.
(Received October 27.)
SIR : I have the pleasure to acknowledge the receipt of your letter
dated October 20.
My original inquiry referred both to vessels under license and to
those sailing under a register. Your letter satisfies the inquiry as to
those licensed for the fisheries.
We still desire to be informed as to whether vessels under registry
of the United States will be allowed to enter at Grand Manan and
other ports, and load and export herring to the United States.
Such vessels will be manned by a sailing crew, on wages, and not by
a fishing complement of sharemen, nor will they carry the fishing
gear which such vessels use when fishing under a fishing license.
The fishing interests, I assure you, appreciate the courtesy of your
offer to procure this information seasonably for them.
I remain, &c.,
GEO. STEELE,
President of the American Fishery Union.
Sir L. West to Mr. Bayard.
WASHINGTON, November 1, 1886.
(Received November 2.)
SIR : With reference to your note of the 9th of August last, respect-
ing the treatment of the United States fishing boat Rattler by the
Canadian authorities, I have the honor to inclose to you herewith, in
obedience to the instructions of the Earl of Iddesleigh, copy of a dis-
patch from the administrator of the Government of Canada together
with copy of the report of the collector of customs at Shelburne.
I have, &c.,
L. S. SACKVILLE WEST.
[Inclosure No. 1.]
HALIFAX, NOVA SCOTIA, September 21, 1886.
SIR: I have the honor to inclose herewith a certified copy of a
minute of my privy council embodying a report of the minister of
customs in relation to the alleged improper treatment of the United
States fishing schooner Rattler in being required to report to the
collector of customs at Shelburne, Nova Scotia, when seeking that
harbor for shelter.
The reply of the collector to the inquiries addressed to him in
respect to this matter is appended to the minister's report, and in it
the facts of the case as set forth in my telegram of the 14th instant,
are given.
I have communicated your dispatch No. 195 of the 1st inst. for-
warding Mr. Bayard's protest concerning this case to my ministers
and requested to be furnished with a report thereon, which I shall
forward for your information as soon as it has been received.
I have, &c.,
A. G. RUSSELL, General.
PERIOD FROM 1871 TO 1905. 849
[Inclosure No. 2.]
CUSTOM-HOUSE, Shellmm.e, September 6, 1886.
SIR: I have to acknowledge receipt of your telegram of 4th instant,
relative to schooner Rattler, and I wired an answer this morning, as
requested on the morning of the 4th ultimo. Chief officer of Terror,
accompanied by Capt. A. F. Cunningham, called at this office. Captain
Cunningham reported his vessel inwards as follows, viz: Schooner
Rattler of Gloucester, 93 tons register; 16 men from fishing bank,
with 465 barrels mackerel came in for shelter. I was afterwards
informed by the officers of cutter that they found the schooner the
evening before at anchor off Sandy Point, 5 miles down the harbor,
two men from cutter were put on board, and the master required to
report at customs in the morning. I was also informed that the
master, Captain Cunningham, made an attempt to put to sea in the
night, by hoisting sails, weighing anchor, &c., but was stopped by
officers from cutter.
I am, &c.,
W. W. ATTWOOD, Collector.
The COMMISSIONER or CUSTOMS, Ottawa,.
Mr. Bayard to Mr. Phelps.
No. 452.] DEPARTMENT OF STATE,
Washington, November 6, 1886.
SIR: On October 7, 1886, the United States fishing vessel, the
Marion Grimes, of Gloucester, Mass., Alexander Landry, a citizen of
the United States, being her captain, arrived shortly before midnight,
under stress of weather, at the outer harbor of Shelburne, Nova
Scotia. The night was stormy, with a strong head-wind against her,
and her sole object was temporary shelter. She remained at the spot
where she anchored, which was about seven miles from the port of
Shelburne, no one leaving her until 6 o'clock the next morning, when
she hoisted sail in order to put to sea. She had scarcely started, how-
ever, before she was arrested and boarded by a boat's crew from the
Canadian cruiser Terror. Captain Landry was compelled to proceed
to Shelburne, about seven miles distant, to report to the collector.
When the report was made, Captain Landry was informed that he
was fined $400 for not reporting on the previous night. He answered
that the custom-house was not open during the time that he was in
the outer harbor. He further insisted that it was obvious from the
storm that caused him to take shelter in that harbor, from the short-
ness of his stay, and from the circumstances that his equipments were
exclusively for deep-sea fishing, and that he had made no effort what-
ever to approach the shore, that his object was exclusively to find
shelter. The fine, however, being imposed principally through the
urgency of Captain Quigley, commanding the Terror, Captain Lan-
dry was informed that he was to be detained at the port of Shelburne
until a deposit to meet the fine was made. He consulted Mr. "White,
the United States consular agent at Shelburne, who at once tele-
graphed the facts to Mr. Phelan, United States consul-general at
Halifax, it being of great importance to Captain Landry, and to those
92909°— S. Doc. 870, 61-3, vol 3 15
850 CORRESPONDENCE, ETC.
interested in his venture, that he should proceed on his voyage at
once. Mr. Phelan then telegraphed to the assistant commissioner of
customs at Ottawa that it was impossible for Captain Landry to have
reported while he was in the outer harbor on the 8th instant, and
asking that the deposit required to release the vessel be reduced. He
was told in reply that the minister declined to reduce the deposit, but
that it might be made at Halifax. Mr. Phelan at once deposited at
Halifax the $400, and telegraphed to Captain Landry that he was at
liberty to go to sea. On the evening of October 11 Mr. Phelan
received a telegram from Captain Landry, who had already been kept
four days in the port, stating that " the custom-house officers and
Captain Quigley " refused to let him go to sea. Mr. Phelan the next
morning called on the collector at Halifax to ascertain if an order
had issued to release the vessel, and was informed that the order had
been given, " but that the collector and captain of the cruiser refused
to obey it, for the reason that the captain of the seized vessel hoisted
the American flag while she was in custody of Canadian officials."
Mr. Phelan at once telegraphed this state of facts to the assistant
commissioner at Ottawa, and received in reply, under date of August
12, the announcement that " collector has been instructed to release
the Grimes from customs seizure. This department has nothing to
do with other charges." On the same day a dispatch from the com-
missioner of customs at Ottawa was sent to the collector of customs at
Halifax reciting the order to release the Grimes, and saying " this
[the customs] department has nothing to do with other charges. It
is department of marine."
The facts as to the flag were as follows :
On October 11, the Marion Grimes, being then under arrest by
order of local officials for not immediately reporting at the custom-
house, hoisted the American flag. Captain Quigley, who, represent-
ing, as appeared, not the revenue, but the marine department of the
Canadian administration, was, with his " cruiser," keeping guard
over the vessel, ordered the flag to be hauled down. This order was
obeyed; but about an hour afterwards the flag was again hoisted,
•whereupon Captain Quigley boarded the vessel with an armed crew
and lowered the flag himself. The vessel was finally released under
orders of the customs department, being compelled to pay $8 costs in
addition to the deposit or $400 above specified.
The seriousness of the damage inflicted on Captain Landry and
those interested in his venture will be understood when it is con-
sidered that he had a crew of twelve men, with full supplies of bait,
which his detention spoiled.
You will at once see that the grievances I have narrated fall under
two distinct heads.
The first concerns the boarding by Captain Quigley of the Marion
Grimes on the morning of October 8th, and compelling her to go to
the town of Shelburne, there subjecting her to a fine of $400 for
visiting the port without reporting, and detaining her there arbi-
trarily four days, a portion of which time was after a deposit to meet
the fine had been made.
This particular wrong I now proceed to consider with none the less
gravity, because other outrages of the same class have been perpe-
trated by Captain Quigley. On August 18th last I had occasion, as
you will see by the annexed papers, to bring to the notice of the British
minister at this capital several instances of aggression on the part of
PERIOD FROM 18*71 TO 1905. 851
Captain Quigley on our fishing vessels. On October 19, 1886, I had
also to bring to the British minister's notice the fact that Captain
Quigley had, on September the 10th, arbitrarily arrested the Everett
Steele, a United States fishing vessel, at the outer port of Shelburne.
To these notes I have received no reply. Copies are transmitted, with
the accompanying papers, to you in connection with the present in-
struction, so that the cases, as part of a class, can be presented by
you to Her Majesty's Government.
Were there no treaty relations whatever between the United States
and Great Britain, were the United States fishermen without any
other right to visit those coasts than are possessed by the fishing craft
of any foreign country simply as such, the arrest and boarding of the
Grimes,, as above detailed, followed by forcing her into the port of
Shelburne, there subjecting her to fine for not reporting, and de-
taining her until her bait and ice were spoiled, are wrongs which I
am sure Her Majesty's Government will be prompt to redress. No
Governments have been more earnest and resolute in insisting that
vessels driven by stress of weather into foreign harbors should not
be subject to port exactions than the Governments of Great Britain
and the United States. So far has this solicitude been carried that
both Governments, from motives of humanity, as well as of interest
as leading maritime powers, have adopted many measures by which
foreigners as well as citizens or subjects arriving within their terri-
torial waters may be protected from the perils of the sea. For this
purpose not merely light-houses and light-ships are placed by us at
points of danger, but an elaborate life-saving service, well equipped
with men, boats, and appliances for relief, studs our seaboard in order
to render aid to vessels in distress, without regard to their nationality.
Other benevolent organizations are sanctioned by Government which
bestow rewards on those who hazard their lives in the protection of
life and property in vessels seeking in our waters refuge from storms.
Acting in this spirit the Government of the United States has been
zealous, not merely in opening its ports freely, without charges to
vessels seeking them in storm, but in insisting that its own vessels,
seeking foreign ports under such circumstances, and exclusively for
such shelter, are not under the law of nations subject to custom-
house exactions.
" In cases of vessels carried into British ports by violence or stress
of weather [said Mr. Webster in instructions to Mr. Everett, June 28,
1842] we insist that there shall be no interference from the land with
the relation or personal condition of those on board, according to the
laws of their own country; that vessels under such circumstances
shall enjoy the common laws of hospitality, subjected to no force,
entitled to have their immediate wants and necessities relieved, and
to pursue their voyage without molestation."
In tb incase, that of the Creole, Mr. Wheaton, in the Revue Fran-
gaise et Etrangere (IX, 345), and Mr. Legare (4 Op. At. Gen., 98),
both eminent publicists, gave opinions that a vessel carried by stress
of weather or forced into a foreign port is not subject to the law of
such port; and this was sustained by Mr. Bates, the umpire of the
commission to whom the claim was referred (Rep. Com. of 1853, 244,
245):
" The municipal law of England [so he said] cannot authorize a
magistrate to violate the law of nations by invading with an armed
852 CORRESPONDENCE, ETC.
force the vessel of a friendly nation that has committed no offense,
and forcibly dissolving the relations which, by the laws of his coun-
try, the captain is bound to preserve and enforce on board. These
rights, sanctioned by the law of nations, viz, the right to navigate the
ocean and to seek shelter in case of distress or other unavoidable cir-
cumstances, and to retain over the ship, her cargo, and passengers, the
law of her country, must be respected by all nations, for no independ-
ent nation would submit to their violation."
It is proper to state that Lord Ashburton, who conducted the con-
troversy in its diplomatic stage on the British side, did not deny as a
general rule the propositions of Mr. Webster. He merely questioned
the applicability of the rule to the case of the Creole. Nor has the
principle ever been doubted by either Her Majesty's Government or
the Government of the United States ; while, in cases of vessels driven
by storm on inhospitable coasts, both Governments have asserted it,
sometimes by extreme measures of redress, to secure indemnity for.
vessels suffering under such circumstances from port exactions, or
from injuries inflicted from the shore.
It would be hard to conceive of anything more in conflict with
the humane policy of Great Britain in this respect, as well as with the
law of nations, than was the conduct of Captain Quigley towards
the vessel in question on the morning of October 8th.
In such coasts, at early dawn, after a stormy night, it is not unusual
for boats, on errands of relief, to visit vessels which have been strug-
gling with storm during the night. But in no such errand of mercy
was Captain Quigley engaged. The Marion Grimes, having found
shelter during the night's storm, was about to depart on her voyage,
losing no time while her bait was fresh and her ice lasted, when she
was boarded by an armed crew, forced to go 7 miles out of her way to
the port, and was there under pressure of Captain Quigley, against
the opinion originally expressed of the collector, subjected to a fine of
$400 with costs, and detained there, as I shall notice hereafter, until
her voyage was substantially broken up. I am confident Her Maj-
esty's Government will concur with me in the opinion that, as a ques-
tion of international law, aside from treaty and other rights, the
arrest and detention under the circumstances of Captain Landry and
of his vessel were in violation of the law of nations as well as the law
of humanity, and that on this ground alone the fine and the costs
should be refunded and the parties suffering be indemnified for their
losses thereby incurred.
It is not irrelevant, on such an issue as the present, to inquire into
the official position of Captain Quigley, " of the Canadian cruiser
Terror" He was, as the term " Canadian cruiser " used by him ena-
bles us to conclude, not an officer in Her Majesty's distinctive service.
He was not the commander of a revenue cutter, for the head of the
customs service disavowed him. Yet he was arresting and boarding,
in defiance of law, a vessel there seeking shelter, over-influencing the
collector of the port into the imposition of a fine, hauling down with
his own hand the flag of the United States, which was displayed over
the vessel, and enforcing arbitrarily an additional period of deten-
tion after the deposit had been made, simply because the captain of
the vessel refused to obey him by executing an order insulting to the
flag which the vessel bore. If armed cruisers are employed in seiz-
ing, harassing, and humiliating storm-bound vessels of the United
PERIOD FROM 18*71 TO 1905. 853
States on Canadian coasts, breaking up their voyages and mulcting
them with fines and costs, it is important for reasons presently to be
specified that this Government should be advised of the fact.
From Her Majesty's Government redress is asked. And that re-
dress, as I shall have occasion to say hereafter, is not merely the
indemnification of the parties suffering by Captain Quigley's actions,
but his withdrawal from the waters where the outrages I represent to
you have been committed.
T have already said that the claims thus presented could be abun-
dantly sustained by the law of nations, aside from treaty and other
rights. But I am not willing to rest the case on the law of nations.
It is essential that the issue between United States fishing vessels and
the " cruiser Terror " should be examined in all its bearings, and set-
tled in regard not merely to the general law of nations, but to the
particular rights of the parties aggrieved.
It is a fact that the fishing vessel Marion Grimes had as much right
under the special relations of Great Britain and the United States to
enter the harbor of Shelburne as had the Canadian cruiser. The fact
that the Grimes was liable to penalties for the abuse of such right of
entrance does not disprove its existence. Captain Quigley is certainly
liable to penalties for his misconduct on the occasion referred to.
Captain Landry was not guilty of misconduct in entering and seek-
ing to leave that harbor, and had abused no privilege. But whether
liable or no for subsequent abuse of the rights, I maintain that the
right of free entrance into that port, to obtain shelter, and whatever
is incident thereto, belonged as much to the American fishing vessel
as to the Canadian cruiser.
The basis of this right is thus declared by an eminent jurist and
statesman, Mr. R. R. Livingston, the first Secretary of State ap-
pointed by the Continental Congress, in instructions issued on Jan-
uary 7, 1782, to Dr. Franklin, then at Paris, intrusted by the United
States with the negotiation of articles of peace with Great Britain :
" The arguments on which the people of America found their claim
to fish on the banks of Newfoundland arise, first, from their having
once formed a part of the British Empire, in which state they always
enjoyed as fully as the people of Britain themselves the right of fish-
ing on those banks. They have shared in all the wars for the exten-
sion of that right, and Britain could with no more justice have ex-
cluded them from the enjoyment of it (even supposing that one
nation could possess it to the exclusion of another) while they formed
a part of that Empire than they could exclude the people of London
or Bristol. If so, the only inquiry is, how have we lost this right?
If we were tenants in common with Great Britain while united with
her, we still continue so, unless by our own act we have relinquished
our title. Had we parted with mutual consent, we should doubtless
have made partition of pur common rights by treaty. But the op-
pressions of Great Britain forced us to a separation (which must be
admitted, or we have no right to be independent) ; and it can not
certainly be contended that those oppressions abridged our rights or
gave new ones to Britain. Our rights, then, are not invalidated by
this separation, more particularly as we have kept up our claim from
the commencement of the war, and assigned the attempt of Great
Britain to exclude us from the fisheries, as one of the causes of our
recurring to arms."
854 CORRESPONDENCE, ETC.
As I had occasion to show in my note to the British minister in the
case of the Everett Steele, of which a copy is hereto annexed, this
"tenancy in common," held by citizens of the United States in the
fisheries, they were to "continue to enjoy" under the preliminary
articles of 1782, as well as under the treaty of peace of 1783 ; and this
right, as a right of entrance in those waters, was reserved to them,
though with certain limitations in its use, by the treaty of 1818. I
might here content myself with noticing that the treaty of 1818,
herein reciting a principle of the law of nations as well as ratifying
a right previously possessed by fishermen of the United States, ex-
pressly recognizes the right of these fishermen to enter the " bays or
harbors " of Her Majesty's Canadian dominions, " for the purpose of
shelter and of repairing damages therein." The extent of other
recognitions of rights in the same clause need not here be discussed.
At present it is sufficient to say that the placing an armed cruiser at
the mouth of a harbor in which the United States fishing vessels are
accustomed and are entitled to seek shelter on their voyages, such
cruiser being authorized to arrest and board our fishing vessels seek-
ing such shelter, is an infraction not merely of the law of nations,
but of a solemn treaty stipulation. That, so far as concerns the fish-
ermen so Effected, its consequences are far-reaching and destructive, it
is not necessary here to argue. Fishing vessels only carry provisions
enough for each particular voyage. If they are detained several days
on their way to the fishing banks the venture is broken up. The
arrest and detention of one or two operates upon all. They cannot as
a class, with their limited capital and resources, afford to run risks so
ruinous. Hence, rather than subject themselves to even the chances
of suffering the wrongs inflicted by Captain Quigley, " of the Cana-
dian cruiser Terror" on some of their associates, they might prefer
to abandon their just claim to the shelter consecrated to them alike by
humanity, ancient title, the law of nations, and by treaty, and face
the gravest peril and the wildest seas in order to reach their fishing
grounds. You will therefore represent to Her Majesty's Government
that the placing Captain Quigley in the harbor of Shelburne to in-
flict wrongs and humiliation on United States fishermen there seeking
shelter is, in connection with other methods of annoyance and injury,
expelling United States fishermen from waters, access to which, of
great importance in the pursuit of their trade, is pledged to them by
Great Britain, not merely as an ancient right, but as part of a system
of international settlement.
It is impossible to consider such a state of things without grave
anxiety. You can scarcely represent this too strongly to Her
Majesty's Government.
It must be remembered, in considering this system, so imperiled,
that the preliminaries to the article of 1782, afterwards adopted as
the treaty of 1783, were negotiated at Paris by Dr. Franklin, repre-
senting the United States, and Mr. Richard Oswald, representing
Lord Shelburne, then colonial secretary, and afterwards, when the
treaty was finally agreed on, prime minister. It must be remem-
bered, also, that Lord Shelburne, while maintaining the rights of the
colonies when assailed by Great Britain, was nevertheless unwilling
that their independence should be recognized prior to the treaty of
peace, as if it were a concession wrung from Great Britain by the
PERIOD FROM 1871 TO 1905. 855
exigencies of war. His position was that this recognition should
form part of a treaty of partition, by which, as is stated by the court
in Sutton v. Sutton (1 Rus. & M., 675), already noticed by me, the
two great sections of the British Empire agreed to separate, in their
articles of separation recognizing to each other's citizens or subjects
certain territorial rights. Thus the continuance of the rights of the
United States in the fisheries was recognized and guaranteed; and it
was also declared that the navigation of the Mississippi, whose sources
were, in the imperfect condition of geographical knowledge of that
day, supposed to be in British territory, should be free and open to
British subjects and to citizens of the United States. Both powers
also agreed that there should be no further prosecutions or confisca-
tions based on the war; and in this way were secured the titles to
property held in one country by persons remaining loyal to the other.
This was afterwards put in definite shape by the following article
(Article X) of Jay's treaty :
" It is agreed that British subjects who now hold lands in the
territories of the United States, and American citizens who now hold
lands in the dominion of His Majesty, shall continue to hold them
according to the nature and tenure of their respective estates and
titles therein, and may grant, sell, or devise the same to whom they
please in like manner as if they were natives; and that neither they
nor their heirs or assigns shall, so far as may respect the said lands
and the legal remedies incident thereto, be regarded as aliens."
It was this article which the court in Sutton v. Sutton, above re-
ferred to, held to be one of the incidents of the " separation " of
1783, of perpetual obligation, unless rescinded by the parties, and
hence not abrogated by the war of 1812.
It is not, however, on the continuousness of the reciprocities,
recognized by the treaty of 1783, that I desire now to dwell. What
I am anxious you should now impress upon the British Government
is the fact that, as the fishery clause in this treaty, a clause con-
tinued in the treaty of 1818, was a part of a system of reciprocal
recognitions which are interdependent, the abrogation of this clause,
not by consent, but by acts of violence and of insult, such as those
of the Canadian cruiser Terror, would be fraught with consequences
which I am sure could not be contemplated by the Governments
of the United States and Great Britain without immediate action
being taken to avert them. To the extent of the system thus assailed
I now direct attention.
When Lord Shelburne and Dr. Franklin negotiated the treaty of
peace, the area on which its recognitions were to operate was limited.
They covered, on the one hand, the fisheries ; but the map of Canada
in those days, as studied by Lord Shelburne, gives but a very im-
perfect idea of the territory near which the fisheries lay. Halifax
was the only port of entry on the coast; the New England States
were there and the other nine were provinces, but no organized gov-
ernments to the west of them. It was on this area only, as well as
on Great Britain, that the recognitions and guarantees of the treaty
were at first to operate. Yet comparatively small as this field may
now seem, it was to the preservation over it of certain reciprocal
rights that the attention of the negotiators was mainly given. And
the chief of these rights were: (1) the fisheries, a common enjoy-
856 CORRESPONDENCE, ETC.
ment in which by both parties took nothing from the property of
either; and (2) the preservation to the citizens or subjects of each
country of title to property in the other.
Since Lord Shelburne's premiership this system of reciprocity and
mutual convenience has progressed under the treaties of 1842 and
1846, so as to give to Her Majesty's subjects, as well as to citizens of
the United States, the free use of the river Detroit or both sides of
the island Bois Blanc, and between that island and the American
and Canadian shores, and all the several channels and passages
between the various islands lying near the junction of the river
St. Clair with the lake of that name. By the treaty of 1846 the
principle of common border privileges was extended to the Pacific
Ocean. The still existing commercial articles of the treaty of 1871
further amplified those mutual benefits by embracing the use of the
inland waterways of either country, and defining enlarged privileges
of bonded transit by land and water through the United States for
the benefit of the inhabitants of the Dominion. And not only by
treaties has the development of Her Majesty's American dominion,
especially to the westward, been aided by the United States, but the
vigorous contemporaneous growth under the enterprise and energy
of citizens of the Northwestern States and Territories of the United
States has been productive of almost equal advantages to the ad-
jacent possessions of the British Crown, and the favoring legislation
by Congress has created benefits in the way of railway facilities
which under the sanction of State laws have been and are freely and
beneficially enjoyed by the inhabitants of the Dominion and their
Government.
Under this system of energetic and co-operative development the
coast of the Pacific has been reached by the transcontinental lines of
railway within the territorial limits of the respective countries, and,
as I have stated, the United States being the pioneers in this remark-
able progress, have been happily able to anticipate and incidentally to
promote the subsequent success of their neighbors in British America.
It will be scarcely necessary for you to say to Lord Iddesleigh that
the United States, in thus aiding in the promotion of the prosperity,
and in establishing the security of Her Majesty's Canadian dominions,
claims no particular credit. It was prompted, in thus opening its ter-
ritory to Canadian use, and incidentally for Canadian growth, in
large measure by the consciousness that such good offices are part of a
system of mutual convenience and advantage growing up under the
treaties of peace and assisted by the natural forces of friendly con-
tiguity. Therefore it is that we witness with surprise and painful
apprehension the United States fishermen hampered in their enjoy-
ment of their undoubted rights in the fisheries.
The hospitalities of Canadian coasts and harbors, which are ours by
ancient right, {.ad which these treaties confirm, cost Canada nothing
and are productive of advantage to her people. Yet, in defiance of
the most solemn obligations, in utter disregard of the facilities and
assistances granted by the United States, and in a way especially irri-
tating, a deliberate plan of annoyances and aggressions has been in-
stituted and plainly exhibited during the last fishing season — a plan
calculated to drive these fishermen from shores where, without injury
to others, they prosecute their own legitimate and useful industry.
PERIOD FROM 18*71 TO 1905. 857
It is impossible not to see that if the unfriendly and unjust system,
of which the cases now presented are part, is sustained by Her Maj-
esty's Government, serious results will almost necessarily ensue, great
as is the desire of this Government to maintain the relations of good
neighborhood. Unless Her Majesty's Government shall effectually
check these aggressions a general conviction on the part of the people
of the United States may naturally be apprehended that, as treaty
stipulations in behalf of our fishermen, based on their ancient rights,
cease to be respected, the maintenance of the comprehensive system
of mutual commercial accommodation between Canada and the
United States could not reasonably be expected.
In contemplation of so unhappy and undesirable a condition of
affairs I express the earnest hope that Her Majesty's Government will
take immediate measures to avert its possibility.
With no other purpose than the preservation of peace and good
will and the promotion of international amity, I ask you to represent
to the statesmen charged with the administration of Her Majesty's
Government the necessity of putting an end to the action of Canadian
officials in excluding American fishermen from the enjoyment of their
treaty rights in the harbors and waters of the maritime provinces of
British North America.
The action of Captain Quigley in hauling down the flag of the
United States from the Marion Grimes has naturally aroused much
resentment in this country, and has been made the subject of some-
what excited popular comment ; and it is wholly impossible to account
for so extraordinary and unwarranted an exhibition of hostility and
disrespect by that official. I must suppose that only his want of
knowledge of what is due to international comity and propriety and
overheated zeal as an officer of police could have permitted such
action ; but I am confident that, upon the facts being made known by
you to Her Majesty's Government, it will at once be disavowed, a
fitting rebuke be administered, and the possibility of a repetition of
Captain Quigley's offense be prevented.
It seems hardly necessary to say that it is not until after condemna-
tion by a prize court that the national flag of a vessel seized as a
prize of war is hauled down by her captor. Under the fourteenth
section of the twentieth chapter of the Navy Regulations of the
United States the rule in such cases is laid down as follows:
"A neutral vessel, seized, is to wear the flag of her own country
until she is adjudged to be a lawful prize by a competent court."
But, a fortiori, is this principle to apply in cases of customs seizures,
where fines only are imposed and where no belligerency whatever ex-
ists. In the port of New York, and other of the countless harbors of
the United States, are merchant vessels to-day flying the British flag
which from time to time are liable to penalties for violations of cus-
toms laws and regulations. But I have yet to learn that any official
assuming, directly or indirectly, to represent the Government of the
United States, would under such circumstances order down or forcibly
haul down the British flag from a vessel charged with such irregu-
larity ; and I now assert that if such act were committed, this Gov-
ernment, after being informed of it, would not wait for a complaint
from Great Britain, but would at once promptly reprimand the
parties concerned in such misconduct and would cause proper expres-
sion of regret to be made.
858 CORRESPONDENCE, ETC.
A scrupulous regard for international respect and courtesy should
mark the intercourse of the officials of these two great and friendly
nations, and anything savoring of the contrary should be unhesi-
tatingly and emphatically rebuked. I cannot doubt that these views
will find ready acquiescence from those charged with the administra-
tion of the Government of Great Britain.
You are at liberty to make Lord Iddesleigh acquainted with the
contents of this letter, and, if desired, leave with him a copy.
I am, sir, your obedient servant,
T. F. BAYARD.
EDWARD J. PHELPS, Esq., &c.
Sir L. West to Mr. Bayard.
WASHINGTON, November 9, 1886.
(Received November 10.)
SIR : With reference to your note of the 16th of July last protest-
ing against the action of Captain Kent of the Canadian cruiser
General Middleton in expelling Stephen R. Balkam from the harbor
of St. Andrews, New Brunswick, I have the honor to communicate to
you herewith, in accordance with the instructions of the Earl of
Iddesleigh, and in reply to your above-mentioned note, copy of a
certified report of the privy council for Canada upon the subject.
I have, &c.,
L. S. SACKVILLE WEST.
[Inclosure.]
Certified copy of a report of a committee of the honorable the privy
council for Canada, approved by his excellency the administrator
of the Government in council on the 21st September, 1886.
The committee of the privy council have had under their consid-
eration a dispatch dated 5th August, 1886, from the right honorable
the secretary of state for the colonies, transmitting a copy of a letter
from the foreign office with a copy of a note from Mr. Bayard, and
protesting against the action of Captain Kent, of the Dominion
cruiser General Middleton, in refusing Stephen A. Balkam permis-
sion to buy fish from Canadians.
The minister of marine and fisheries, to whom the dispatch and in-
closures were referred, submits the following rep art from the first
officer of the General Middleton :
" HALIFAX, August 25, 1886.
" I have the honor to state that when boarding several boats in St.
Andrews Bay I asked Stephen R. Balkam if the boat he was in was
American. He replied that he thought she was. I informed him that
if she was American he could not take fish from the weirs on the
English side without a permit frjm the collector of customs at St.
Andrews or West Isles.
" He asked permission to take the fish from the weirs in Kelly's
Cove without a permit. I declined to accede to his request.
"Mr. Balkam went around the point in his boat, and, after accost-
ing several others, I met him again, evidently trying to evade my in-
PERIOD FEOM 1871 TO 1905. 859
structions. I told him that he must not take the fish without permis-
sion from the customs. He left for the American shore and I
returned to the Middleton.
" Mr. Stephen R. Balkam I have known for some years. He for-
merly belonged to St. Andrews, but is now living in Eastport. His
business is to carry sardines from the English side to Eastport for
canning purposes.
The minister is of opinion, in view of the above, that in warning
Mr. Balkam that if his boat belonged to the United States he could
not take herring from the weirs without first having reported at the
custom-house, Mr. Kent acted within the scope of the law and his
instructions.
The committee respectfully advise that your excellency be moved
to transmit a copy of this minute to the right honorable the secre-
tary of state for the colonies, as requested in his dispatch of the 5th
August last.
JOHN J. McGEB,
Clerk, Privy Council, Canada.
Mr. Bayard to Sir L. West.
DEPARTMENT or STATE,
Washington, November 11, 1886.
SIR : I have the honor to inclose herewith copies of the statements
with affidavits from Capt. Medeo Rose, master of the schooner Laura
Sayward, of Gloucester, Mass., and of Capt. Joseph Tupper, master
of the schooner Jeannie Seaverns, also of Gloucester, forwarded to
me by the collector of the port of Gloucester, under date of 5th
instant.
The first impressively describes the inhospitable and inhuman con-
duct of the collector of the port of Shelburne, Nova Scotia, in re-
fusing to allow Captain Rose to buy sufficient food for himself and
crew to take them home, besides unnecessarily retaining his papers,
and thus preventing him, with a wholly inadequate supply of provi-
sions, from proceeding on his voyage.
The second complaint is of Captain Quigley, commanding the Ca-
nadian cruiser Terror, in not only preventing Captain Tupper from
landing to visit his relatives in Liverpool, Nova Scotia, but even for-
bidding his relatives from coming on board his vessel to see him, and
likewise placing a guard on board of her to insure that result.
While I need not comment further than I have already done in
previous notes on the unjust and unwarrantable acts of the Dominion
officials of late towards our fishermen, of which the instances now
presented are but repetitions, I must notice the new phase of Captain
Quigley's abuse of authority in actually making Captain Tupper a
prisoner on board of his own vessel, and in preventing his relatives,
whom he states he had not seen for many years, from meeting him.
Such conduct, apart from all its legal and international aspects, is
wholly unworthy of any one intrusted with the execution of a public
duty and inconsistent with the national reputation for humanity and
courtesy of an officer in Her Majesty's service.
I have, &c., T. F. BAYARD.
860 CORRESPONDENCE, ETC.
[Inclosure No. 1.]
Mr. Presson to Mr. Bayard.
GLOUCESTER, MASS.,
Collector's Office, November 5, 1886.
SIR : I transmit herewith, by request, affidavits of Capt. Medeo Rose,
of schooner Laura Sayward, and Capt. Joseph Tupper, of schooner
Jeannie Seavems, in relation to their treatment by Canadian officials.
I am, &c.,
D. S. PRESSON, Collector.
[Sub-inclosure 1.]
Affidavit of Captain Rose, of the schooner Laura Sayward.
I, Medeo Rose, master of schooner Laura Sayward, of Gloucester,
being duly sworn, do depose and say : That on Saturday, October 2d,
being then on Western Bank on a fishing trip, and being short of
provisions, we hove up our anchor and started for home. The wind
was blowing almost a gale from the northwest, and being almost
dead-ahead we made slow progress on our voyage home. On Tues-
day, October 5th, we made Shelburne, Nova Scotia, and arrived in
that harbor about 8 p. m. on that day, short of provisions, water, and
oil to burn. On Wednesday I sailed for the inner harbor of Shel-
burne. Arriving at the town about 4 p. m., on going ashore I found
the custom-house closed, and hunted up the collector and entered my
vessel, and asked permission from him to buy 7 pounds sugar, 3
pounds coffee, one-half to 1 bushel potatoes, and 2 pounds of butter,
or lard or pork, and oil enough to last us home, and was refused. I
stated to him my situation, short of provisions, and a voyage of 250
miles before me and plead with him for this slight privilege, but it
was of no avail. I then visited the American consul and asked his
assistance and found him powerless to aid me in this matter. The
collector of customs held my papers until the next morning, although
I asked for them as soon as I found I could not buy any provisions,
say about an hour and a half after I entered, but he refused to give
them to me until the next morning. Immediately on receiving my
fapers on Thursday morning, I started for home, arriving on Sunday,
think the treatment I received harsh and cruel, driving myself and
crew to sea with a scant supply of provisions, we having but little
flour and water and liable to be buffeled about for days before reach-
ing home.
MEDEO ROSE.
MASSACHUSETTS, Essex, ss:
OCTOBER 13, 1886.
Personally appeared Medeo Rose, and made oath to the truth of
the above statement.
Before me.
[SEAL.] AARON PARSONS, N. P.
PERIOD FROM 1871 TO 1905. 861
[Sub-inclosure 2.J
Affidavit of Captain Tupper, of the schooner Jeannie Seavems.
I, Joseph Tupper, master of schooner Jeannie Seaverns, of Glou-
cester, Mass., being duly sworn, do depose and say: That on Thurs-
day, October 28, while on my passage home from a fishing trip, the
wind blowing a gale from southeast, and a heavy sea running, I was
obliged to enter the harbor of Liverpool, Nova Scotia, for shelter.
Immediately on coming to anchor was boarded by Captain Quigley,
of Canadian cruiser Terror, who ordered me to go on shore at once
and enter at the custom-house, to which I replied that such was my
intention. He gave me permission to take two men in the boat with
me, but they must remain in the boat and not step on shore. I asked
Captain Quigley if I could, after entering, visit some of my relatives
who resided in Liverpool, and whom I had not seen for many years.
This privilege he denied me. After entering, having returned to
my vessel, some of my relatives came off to see me. When Captain
Quigley saw their boat alongside of my vessel he sent an officer and
boat's crew, who ordered them away, and at sundown he placed an
armed guard on board our vessel, who remained on board all night,
and was taken off just before we sailed in the morning.
I complied with the Canadian laws, and had no intention or desire
to violate them in any way ; but to be made a prisoner on board my
own vessel, and treated like a suspicious character, grates harshly
upon the feelings of an American seaman, and I protest against such
treatment, and respectfully ask from my own Government protection
from such unjust, unfriendly, and arbitrary treatment.
JOSEPH TUPPER.
MASSACHUSETTS, Essex, ss :
NOVEMBER 4, 1886.
Personally appeared Joseph Tupper, and made oath to the truth of
the above statement.
Before me.
[SEAL.] AARON PARSONS, A7. P.
Sir L. West to Mr. Bayard.
BRITISH LEGATION,
Washington, November 12, 1886. (Received November 12.)
SIR : I have the honor to acknowledge the receipt of your note of
yesterday's date, together with certain statements in which complaint
is made of the conduct of the collector of customs at Shelburne, Nova
Scotia, and the conduct of Captain Quigley, of the Canadian cruiser
Terror, in their dealings with certain American fishing vessels, and to
inform you that I have forwarded the same to Her Majesty's Govern-
ment.
I have, &c., L. S. SACKVILLE WEST.
862 CORRESPONDENCE, ETC.
Sir L. West to Mr. Bayard.
BRITISH LEGATION,
Washington, November 15, 1886. (Received November 16.)
SIR: With reference to your notes of the 19th and 20th ultimo, I
have the honor to inform you that I am requested by the Earl of
Iddesleigh to state to you that the Dominion Government have been
asked to furnish immediate reports upon the action of their authori-
ties in the cases of the American fishing vessels Everett Steele and
Pearl Nelson.
I have, &c., L. S. SACKVELLE WEST.
Mr. Bayard to Mr. Phelps.
No. 459.] DEPARTMENT OF STATE,
Washington, November 15, 1886.
SIR : The season for taking mackerel has now closed, and I under-
stand the marine police force of the territorial waters in British
North America has been withdrawn, so that no further occasion for
the administration of a strained and vexatious construction of the
convention of 1818, between the United States and Great Britain, is
likely for several months at least.
During this period of comparative serenity, I earnestly hope that
such measures will be adopted by those charged with the administra-
tion of the respective Governments as will prevent the renewal of the
proceedings witnessed during the past fishing season in the ports and
harbors or Nova Scotia, and at other points in the maritime provinces
of the Dominion, by which citizens of the United States engaged in
open-sea fishing were subjected to much unjust and unfriendly treat-
ment by the local authorities in those regions, and thereby not only
suffered serious loss in their legitimate pursuit, but, by the fear of an-
noyance, which was conveyed to others likewise employed, the general
business of open-sea fishing by citizens of the United States was im-
portantly in]ured.
My instructions to you during the period of these occurrences have
from time to time set forth their regrettable character, and they have
also been brought promptly to the notice of the representative of Her
Majesty's Government at this capital.
These representations, candidly and fully made, have not produced
those results of checking the unwarranted interference (frequently
accompanied by rudeness and an unneccessary demonstration of
force) with the rights of our fishermen guarantied by express treaty
stipulations, and secured to them — as I confidently believe — by the
public commercial laws and regulations of the two countries, and
which are demanded by the laws of hospitality to which all friendly
civilized nations owe allegiance. Again I beg that you will invite
Her Majesty's counselors gravely to consider the necessity of prevent-
ing the repetition of conduct on the part of the Canadian officials
which may endanger the peace of two kindred and friendly nations.
To this end, and to insure to the inhabitants of the Dominion the
efficient protection of the exclusive rights to their inshore fisheries, as
PEKIOD FROM 1871 TO 1905. 863
provided by the convention of 1818, as well as to prevent any abuse of
the privileges reserved and guarantied by that instrument forever to
the citizens of the United States engaged in fishing, and responding
to the suggestion made to you by the Earl of Iddesleigh, in the month
of September last, that a modus vivendi should be agreed upon be-
tween the two countries to prevent encroachment by American fisher-
men upon the Canadian inshore fisheries, and equally to secure them
from all molestation when exercising only their just and ancient
rights, I now inclose the draft of a memorandum which you may pro-
pose to Lord Iddesleigh, and which, I trust, will be found to contain
a satisfactory basis for the solution of existing difficulties, and assist
in securing an assured, just, honorable, and, therefore, mutually sat-
isfactory settlement of the long- vexed question of the North Atlantic
fisheries.
I am encouraged in the expectation that the propositions embodied
in the memorandum referred to will be acceptable to Her Majesty's
Government, because, in the month of April, 1866, Mr. Seward, then
Secretary of State, sent forward to Mr. Adams, at that time United
States minister in London, the draft of a protocol which in substance
coincides with the first article of the proposal now sent to you, as you
will see by reference to Vol. 1 of the U. S. Diplomatic Correspon-
dence for 1866, p. 98 et seq.
I find that, in a published instruction to Sir F. Bruce, then Her
Majesty's minister in the United States, under date of May 11, 1866,
the Earl of Clarendon, at that time Her Majesty's secretary of state
for foreign affairs, approved them, but declined to accept the final
proposition of Mr. Seward's protocol, which is not contained in the
memorandum now forwarded.
Your attention is drawn to the great value of these three proposi-
tions, as containing a well-defined and practical interpretation of
Article 1 of the convention of 1818, the enforcement of which co-
operatively by the two Governments, it may reasonably be hoped, will
efficiently remove those causes of irritation of which variant construc-
tions hitherto have been so unhappily fruitful.
In proposing the adoption of a width of ten miles at the mouth as a
proper definition of the bays in which, except on certain specified
coasts, the fishermen of the United States are not to take fish, I have
followed the example furnished by France and Great Britain in their
convention signed at Paris, on the 2d of August, 1839. This defini-
tion was referred to and approved by Mr. Bates, the umpire of the
commission under the treaty of 1853, in the case of the United States
fishing schooner Washington, and has since been notably approved
and adopted in the convention signed at The Hague, in 1882, and
subsequently ratified, in relation to fishing in the North Sea, between
Germany, Belgium, Denmark, France, Great Britain, and the Neth-
erlands.
The present memorandum also contains provisions for the usual
commercial facilities allowed everywhere for the promotion of legiti-
mate trade, and nowhere more fully than in British ports and under
the commercial policies of that nation. Such facilities can not with
any show of reason be denied to American fishing- vessels when plying
their vocations in deep-sea fishing grounds in the localities open to
them equally with other nationalities. The convention of 1818 inhib-
its the "taking, drying, or curing fish" by American fishermen in
864 CORRESPONDENCE, ETC.
certain waters and on certain coasts, and when these objects are
effected, the inhibitory features are exhausted. Everything that may
presumably guard against an infraction of these provisions will be
recognized and obeyed by the Government of the United States,
but should not be pressed beyond its natural force.
By its very terms and necessary intendment, the same treaty rec-
ognizes the continuance permanently of the accustomed rights of
American fishermen, in those places not embraced in the renunciation
of the treaty, to prosecute the business as freely as did their fore-
fathers.
No construction of the convention of 1818 that strikes at or impedes
the open-sea fishing by citizens of the United States can be accepted,
nor should a treaty of friendship be tortured into a means of such
offense, nor should such an end be accomplished by indirection.
Therefore, by causing the same port regulations and commercial
rights to be applied to vessels engaged therein as are enforced rela-
tive to other trading craft, we propose to prevent a ban from being
put upon the lawful and regular business of open-sea fishing.
Arrangements now exist between the Governments of Great Britain
and France, and Great Britain and Germany, for the submission in
the first instance of all cases of seizure to the joint examination and
decision of two discreet and able commanding officers of the navy of
the respective countries, whose vessels are to be sent on duty to cruise
in the waters to be guarded against encroachment. Copies of these
agreements are herewith inclosed for reference. The additional fea-
ture of an umpire in case of a difference of opinion is borrowed from
the terms of Article 1 of the treaty of June 5, 1854, between the
United States and Great Britain.
This same treaty of 1854 contains in its first article provision for a
joint commission for marking the fishing limits, and is therefore a
precedent for the present proposition.
The season of 1886 for inshore fishing on the Canadian coasts has
come to an end, and assuredly no lack of vigilance or promptitude in
making seizures can be ascribed to the vessels or the marine police of
the Dominion. The record of their operations discloses but a single
American vessel found violating the inhibitions of the convention of
1818, by fishing within three marine miles of the coast. The numerous
seizures made have been of vessels quietly at anchor in established
ports of entry, under charges which, up to this day, have not been par-
ticularized sufficiently to allow of an intelligent defense. Not one has
been condemned after trial and hearing, but many have been fined
without hearing or judgment, for technical violations of alleged com-
mercial regulations, although all commercial privileges have been
simultaneously denied to them. In no instance has any resistance
been offered to Canadian authority, even when exercised with useless
and irritating provocation.
It is trusted that the agreement now proposed may be readily
accepted by Her Majesty's ministry.
Should the Earl of Iddesleigh express a desire to possess the text
of this dispatch, in view of its intimate relation to the subject-matter
of the memorandum and as evidencing the sincere and cordial dispo-
sition which prompts this proposal, you will give his lordship a copy.
I am, sir, your obedient servant,
T. F. BAYARD.
PERIOD FROM 1871 TO 1905. 865
[Inclosure No. 1 ]
Proposals for settlement of all questions in dispute in relation to the
fisheries on the northeastern coasts of British North America.
Whereas in the first article of the convention between the United
States and Great Britain, concluded and signed in London on the
20th of October, 1818, it was agreed between the high contracting
parties " that the inhabitants of the said United States shall have
forever, in common with the subjects of His Britannic Majesty, the
liberty to take fish of every kind on that part of the southern coast
of Newfoundland which extends from Cape Ray to the Rameau
Islands, on the western and northern coast of Newfoundland, from
the said Cape Ray to the Quirpon Islands, on the shores of the Mag-
dalen Islands, and also on the coasts, bays, harbors, and creeks, from
Mount Joly on the southern coast of Labrador to and through the
Straits of Belleisle; and thence northwardly indefinitely along the
coast, without prejudice, however, to any of the exclusive rights of
the Hudson's Bay Company; and that the American fishermen shall
also have liberty forever to dry and cure fish in any of the unsettled
bays, harbors, and creeks of the southern part of the coast of New-
foundland, here above described, and of the coast of Labrador; but
so soon as the same, or any portion thereof, shall be settled, it shall
not be lawful for the said fishermen to dry or cure fish at such por-
tion so settled without previous agreement for such purpose with the
inhabitants, proprietors, or possessors of the ground; " and was de-
clared that " the United States hereby renounce forever any liberty
heretofore enjoyed or claimed by the inhabitants thereof to take, dry,
or cure fish on or within 3 marine miles of any of the coasts, bays,
creeks, or harbors of His Britannic Majesty's dominions in America
not included within the above-mentioned limits: Provided, however,
That the American fishermen shall be admitted to enter such bays
or harbors for the purpose of shelter, and of repairing damages
therein, of purchasing wood, and obtaining water, and for no other
purpose whatever. But they shall be under such restriction as may
be necessary to prevent their taking, drying, or curing fish therein,
or in any other manner whatever abusing the privileges hereby re-
served to them;" and whereas differences have arisen in regard to
the extent of the above-mentioned renunciation, the Government of
the United States and Her Majesty the Queen of Great Britain, being
equally desirous of avoiding further misunderstanding, agree to
appoint a mixed commission for the following purposes, namely:
(1) To agree upon and establish by a series of lines the limits
which shall separate the exclusive from the common right of fishing
on the coasts and in the adjacent waters of the British North Amer-
ican colonies, in conformity with the first article of the convention
of 1818, except that the bays and harbors from which American
fishermen are in the future to be excluded, save for the purposes
for which entrance into bays and harbors is permitted by said article,
are hereby agreed to be taken to be such bays and hnrbors as are 10
or less than 10 miles in width, and the distance of 3 marine miles
from such bays or harbors shall be measured from a straight
line drawn across the bay or hnrbor, in the part neirest the entrance,
at the first point where the width does not exceed 10 miles; the said
6. Doc «7u, bi-o, v 1 3 — 16
866 CORRESPONDENCE, ETC.
lines to be regularly numbered, duly described, and also clearly
marked on charts prepared in duplicate for the purpose.
(2) To agree upon and establish such regulations as may be neces-
sary and proper to secure to the fishermen of the United States the
privilege of entering bays and harbors for the purpose of shelter
and of repairing damages therein, of purchasing wood, and of ob-
taining water, and to agree upon and establish such restrictions as
may be necessary to prevent the abuse of the privilege reserved by
said convention to the fishermen of the United States.
(3) To agree upon and recommend the penalties to be adjudged,
and such proceedings and jurisdiction as may be necessary to secure
a speedy trial and judgment with as little expense as possible, for the
violators of rights and the transgressors of the limits and restrictions
which may be hereby adopted :
Provided, however, that the limits, restrictions, and regulations
which may be agreed upon by the said commission shall not be final,
nor have any effect until so jointly confirmed and declared by the
United States and Her Majesty the Queen of Great Britain, either by
treaty or by laws mutually acknowledged.
ARTICLE II.
Pending a definite arrangement on the subject, Her Britannic
Majesty's Government agree to instruct the proper colonial and other
British officers to abstain from seizing or molesting fishing vessels of
the United States unless they are found within three marine miles ol
any of the coasts, bays, creeks, and harbors of Her Britannic Majes-
ty's dominions in America, there fishing, or to have been fishing, or
preparing to fish within those limits, not included within the limits
within which, under the treaty of 1818, the fishermen of the United
States continue to retain a common right of fishery with Her Britan-
nic Majesty's subjects.
AKTICLE III.
For the purpose of executing Article I of the convention of 1818,
the Government of the United States and the Government of Her
Britannic Majesty hereby agree to send each to the Gulf of St. Law-
rence a national vessel, and also one each to cruise during the fishing
season on the southern coasts of Nova Scotia. Whenever a fishing
vessel of the United States shall be seized for violating the provisions
of the aforesaid convention by fishing or preparing to fish within
three marine miles of any of the coasts, bays, creeks, and harbors of
Her Britannic Majesty's dominions included within the limits within
which fishing is by the terms of the said convention renounced, such
vessel shall forthwith be reported to the officer in command of one of
the said national vessels, who, in conjunction with the officer in com-
mand of another of said vessels of the different nationality, shall hear
and examine into the facts of the case. Should the said commanding
officers be of opinion that the charge is not sustained, the vessel shall
be released. But if they should be of opinion that the vessel should
be subjected to a judicial examination, she shall forthwith be sent
for trial before the vice-admiralty court at Halifax. If, however, the
said commanding officers should differ in opinion, they shall name
PERIOD FROM 1871 TO 1905. 867
some third person to act as umpire between them, and should they be
unable to agree upon the name of such third person, they shall each
name a person, and it shall be determined by lot which of the two
persons so named shall be the umpire.
ARTICLE IV.
The fishing vessels of the United States shall have in the estab-
lished ports of entry of Her Britannic Majesty's dominions in
America the same commercial privileges as other vessels of the
United States, including the purchase of bait and other supplies;
and such privileges shall be exercised subject to the same rules and
regulations and payment of the same port charges as are prescribed
for other vessels of the United States.
The Government of Her Britannic Majesty agree to release all
United States fishing vessels now under seizure for failing to report
at custom-houses when seeking shelter, repairs, or supplies, and to
refund all fines exacted for such failure to report. And the high con-
tracting parties agree to appoint a joint commission to ascertain the
amount of damage caused to American fishermen during the year
1886 by seizure and detention in violation of the treaty of 1818, said
commission to make awards therefor to the parties injured.
ARTICLE VT.
The Government of the United States and the Government of Her
Britannic Majesty agree to give concurrent notification and warning
of Canadian customs regulations, and the United States agrees to
admonish its fishermen to comply with them, and cooperate in secur-
ing their enforcement.
[Inclosure No. 2. — Translation.]
Arrangement between France and Great Britain concerning the
Newfoundland fisheries, November 14, 1885. (See ante, p. 69.)
Mr. Bayard to Mr. PJielps.
No. 462.] DEPARTMENT OF STATE,
Washington, November W, 1886.
SIR: On the 6th of the present month I wrote you concerning the
treatment of the United States fishing schooner Marion Grimes, of
Gloucester, Mass., on October 7, 1886, in the outer harbor of Shel-
burne, Nova Scotia, by Captain Quigley, of the Canadian cruiser
Terror.
I received yesterday and now inclose a copy of the statement made
under oath by Captain Landry of the Marion Grimes, and present it
as supplementary and confirmatory of my former communication on
the subject.
I am, &c., T. F. BAYARD.
868 CORRESPONDENCE, ETC.
[Inclosure.]
"I, Alexander Landry, master of schooner Marion Grimes, of
Gloucester, being duly sworn, do depose and say :
" That on Monday, October 4, 1886, I sailed from Gloucester on a
fishing trip to Western Bank. On the night of Thursday, October 7,
the wind blowing almost a gale from the southeast and a heavy sea
running, we came to anchor in the entrance of Shelburne Harbor
about midnight for shelter. We were then fully 10 miles from the
custom-house at Shelburne. At 4.30 a. m. of the next day we hove up
our anchor to continue our voyage, the wind having died away almost
to a calm. Just as we had got our anchor on the bow an officer
and boat's crew from Canadian cruiser Terror (which laid off Sand
Point some 3 miles above us) came on board and told me we must
come to anchor at once and go to the custom-house at Shelburne and
enter and clear. I at once anchored the vessel and taking my boat
and two of my crew started for the custom-house. When we reached
the Terror, Captain Quigley ordered me to come on board his vessel,
leave my boat and men, and go with him in his boat to Shelburne. I
arrived at the custom-house at about 8.30 a. m., and waited until 9
a. m., when Collector Attwood arrived. I then entered and cleared
my vessel and was about to pay the charges and depart, when Cap-
tain Quigley entered the office and told the collector he ought not to
clear my vessel as I had attempted to leave the harbor without re-
porting, and that the case should be laid before the authorities at
Ottawa. Collector Attwood then withheld my papers until a de-
cision should be received from Ottawa. I then tried to find the
American consul, calling at his office three times during the day, and
was unable to find him. But in the afternoon found a Mr. Blatch-
ford in the consul's office, who informed me that my vessel had been
fined $400, and I wired my owners accordingly. At 4 p. m. returned
with Captain Quigley on board the Terror, and when on board he
informed me that my vessel was fined $400.
" He then sent a boat's crew on board my schooner, telling me to go
with them, but detaining my boat and two men, and ordered me to
take my schooner up to Shelburne at once. We started and got as
far as Sand Point, and came to anchor for want of wind at about 10
o'clock p. m., and alongside the Terror. At 3 o'clock a. m. on Satur-
day, October 9, accompanied by the Terror, we started again for
Shelburne inner harbor, arriving there about 7 o'clock a. m., and then
the boat's crew left us and my two men came on board in my boat. I
then went on shore and found the American consul, who informed me
he could not give me any assistance. During Saturday, Sunday, and
Monday I awaited dispatches from my owner in regard to the pay-
ment of the fine. On Monday mornincr, it being the anniversary of
my birthday, I hoisted the American flag to the mast-head, and im-
mediately Captain Quigley (speaking from the deck of his vessel)
ordered me to haul it down, which I did; but after thinking the
matter over, I concluded that as no regular seizure of my vessel had
been made, no broad arrow put upon my mast, but my vessel only
detained until a deposit of the fine had been made, Captain Quigley
had acted beyond his authority, and acting on this conclusion I again
set my flag at the mast-head. Captain Quigley again ordered me to
haul down the flag, which I refused to do; upon which he came on
PERIOD FROM 1871 TO 1905. 869
board my vessel with eight men, and asked who gave the authority to
hoist that flag. I replied that I took the authority myself. He then
said, ' Well, I'll haul it down myself,' which I forbid him to do; but
without heeding me he immediately hauled down the flag, unbent it,
unrove the halliards, and passed the flag to me. I passed it back to
him, telling him as he had hauled it down he better take charge of it
himself. He then ordered his men to haul the vessel into the wharf,
which they did, and Collector Attwood came on board and put a
broad arrow ( t ) on the mainmast and placed two watchmen on the
wharf to watch the vessel. On Tuesday, October 12, at 10 a. m.,
Collector Attwood informed me that the vessel was released, but I
must pay the bill for watching, amounting to $8, and to save further
delay I did so. On Tuesday evening, October 12, sailed for the
Western Bank in continuation of my voyage.
"ALEXANDER (his x mark) LANDRY,
" Master.
" Witness :
"J. WARREN WONSON.
" MASSACHUSETTS, ESSEX, ss:
"NOVEMBER 13, 1886.
"Personally appeared Alexander Landry and made oath to the
truth of the above statement before me.
"[SEAL.] AARON PARSONS,
"Notary Public."
Mr. Phelps to Lord Iddesleigh.
LEGATION or THE UNITED STATES,
London, November 87, 1886.
MY LORD: I have the honor to transmit herewith a copy of an
instruction, under date of November 6, 1886, received by me from the
Secretary of State of the United States, relative to the case of the
United States fishing vessel the Marion Grimes.
The subject is so fully presented in this document, a copy of which
I am authorized by the Secretary to place in the hands of your lord-
ship, that I can add nothing to what is therein set forth, except to
request your lordship's early attention to the case, which appears to
be a very flagrant violation of the rights secured to American fisher-
men under the treaty of 1818.
I have, etc., E. J. PHELPS.
The Earl of Iddesleigh to Mr. Phelps.
FOREIGN OFFICE, November 30, 1886.
SIR : I have given my careful consideration to the contents of the
note of the llth September last, which you were good enough to ad-
dress to me in reply to mine of the 1st of the same month, on the
subject of the North American fisheries.
The question, as you are aware, has for some time past engaged
the serious attention of Her Majesty's Government and the notes
870 COBBESPONDENCE, ETC.
which have been addressed to you in relation to it, both by my prede-
cessor and by myself, have amply evinced the earnest desire of Her
Majesty's Government to arrive at some equitable settlement of the
controversy. It is, therefore, with feelings of disappointment that
they do not find in your note under reply any indication of a wish
on the part of your Government to enter upon negotiations based on
the principle of mutual concessions, but rather a suggestion that some
ad interim construction of the terms of the existing treaty should, if
possible, be reached, which might for the present remove the chance
of disputes; in fact, that Her Majesty's Government, in order to allay
the differences which have arisen, should temporarily abandon the
exercise of the treaty rights which they claim and which they con-
ceive to be indisputable. For Her Majesty's Government are unable
to perceive any ambiguity in the terms of Article 1 of the convention
of 1818, nor have they as yet been informed in what respects the
construction placed upon that instrument by the Government of the
United States differs from their own. They would, therefore, be
flad to learn in the first place whether the Government of the United
tates contest that by Article 1 of the convention United States
fishermen are prohibited from entering British North American bay£
or harbors on those parts of the coast referred to in the second part
of the article in question for any purposes save those of shelter,
repairing damages, purchasing wood, and obtaining water.
Before proceeding to make some observations upon the other points
dealt with in your note, I have the honor to state that I do not pro-
pose in the present communication to refer to the cases of the
schooners Thomas F. Bayard and j\l <-ot, to which you allude.
The privileges manifestly secured to United States fishermen by
the convention of 1818 in Newfoundland, Labrador, and the Mag-
dalen Islands are not contested by Her Majesty's Government, who,
whilst determined to uphold the rights of Her Majesty's North Amer-
ican subjects, as defined in the convention, are no less anxious and re-
solved to maintain in their full integrity the facilities for prosecuting
the fishing industry on certain limited portions of the coast which
are expressly granted to citizens of the United States. The com-
munications on the subject of these two schooners, which I have re-
quested Her Majesty's minister at Washington to address to Mr.
Bayard, can not, I think, have failed to afford to your Government
satisfactory assurances in this respect.
Eeverting now to your note under reply, I beg to offer the follow-
ing observations on its contents:
In the first place, you take exception to my predecessor having de-
clined to discuss the case of the David J. Adams, on the ground that
it was still sub judice, and you state that your Government are unable
to accede to the proposition contained in my note of the 1st of Sep-
tember last, to the effect that " it is clearly right, according to prac-
tice and precedent, that such diplomatic action should be suspended
pending the completion of the judicial inquiry."
In regard to this point, it is to be remembered that there are three
questions calling for investigation in the case of the David J. Adams:
(1) What were the acts committed which led to the seizure of the
vessel ?
PERIOD PROM 1871 TO 1906. 871
(2) Was her seizure for such acts warranted by any existing laws?
(3) If so, are those laws in derogation of the treaty rights of the
United States?
It is evident that the first two questions must be the subject of
inquiry before the third can be profitably discussed, and that those
two questions can only be satisfactorily disposed of by a judicial in-
quiry. Far from claiming that the United States Government would
be bound by the construction which British tribunals might place on
the treaty, I stated in my note of the 1st September that if that deci-
sion should be adverse to the views of your Government, it would
not preclude further discussion between the two Governments and
the adjustment of the question by diplomatic action.
I may further remark that the very proposition advanced in my
note of the 1st of September last, and to which exception is taken in
your reply, has on a previous occasion been distinctly asserted by the
Government of the United States under precisely similar circum-
stances, that is to say, in 1870, in relation to the seizure of American
fishing vessels in Canadian waters for alleged violation of the conven-
tion of 1818.
In a dispatch of the 29th of October, 1870, to Mr. W. A. Dart,
United States consul-general at Montreal (which is printed at page
431 of the volume for that year of the Foreign Relations of the
United States, and which formed part of the correspondence referred
to by Mr. Bayard in his note to Sir L. West of the 20th of May last) ,
Mr. Fish expressed himself as follows :
" It is the duty of the owners of the vessels to defend their interests
before the courts at their own expense, and without special assistance
from the Government at this stage of affairs. It is for those tribunals
to construe the statutes under which they act. If the construction
they adopt shall appear to be in contravention of our treaties with
Great Britain, or to be (which can not be anticipated) plainly
erroneous in a case admitting of no reasonable doubt, it will then be-
come the duty of the Government — a duty which it will not be slow
to discharge — to avail itself of all necessary means for obtaining
redress."
Her Majesty's Government, therefore, still adhere to their view that
any diplomatic discussion as to the legality of the seizure of the
David J. Adams would be premature until the case has been judicially
decided.
It is further stated in your note that "the absence of any statute
authorizing proceedings or providing a penalty against American
fishing vessels for purchasing bait or supplies in a Canadian port to
be used in lawful fishing" affords "the most satisfactory evidence
that up to the time of the present controversy no such construction
has been given to the treaty by the British or by the colonial parlia-
ment as is now sought to be maintained."
Her Majesty's Government are quite unable to accede to this view,
and I must express my regret that no reply has yet been received
from your Government to the arguments on this and all the other
points in controversy, which are contained in the able and elaborate
report (as you courteously describe it) of the Canadian minister of
marine and fisheries, of which my predecessor communicated to you
a copy.
872 CORRESPONDENCE, ETC.
In that report reference is made to the argument of Mr. Bayard,
drawn from the fact that the proposal of the British negotiators of
the convention of 1818, to the effect that American fishing vessels
should carry no merchandise, was rejected by the American negotia-
tors; and it is shown that the above proposal had no application to
American vessels resorting to the Canadian coasts, but only to those
exercising the right of inshore fishing and of landing for the drying
and curing of fish on parts of the coasts of Newfoundland and
Labrador.
The report, on the other hand, shows that the United States nego-
tiators proposed that the right of " procuring bait " should be added
to the enumeration of the four objects for which the United States
fishing vessels might be allowed to enter Canadian waters; and that
such proposal was rejected by the British negotiators, thus showing
that there could be no doubt in the minds of either party at the
time that the " procuring of bait " was prohibited by the terms of the
article. The report, moreover, recalls the important fact that the
United States Government admitted, in the case submitted by them
before the Halifax Commission in 1877, that neither the conven-
tion of 1818 nor the treaty of Washington conferred any right or
privilege of trading on American fishermen; that the "various inci-
dental and reciprocal advantages of the treaty, such as the privileges
of traffic, purchasing bait and other supplies, are not the subject of
compensation, because the treaty of Washington confers 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."
This view was confirmed by the ruling of the commissioners.
Whilst I have felt myself bound to place the preceding observations
before you in reply to the arguments contained in your note, I beg
leave to say that Her Majesty's Government would willingly have left
such points of technical detail and construction for the consideration
of a commission properly constituted to examine them, as well as to
suggest a means for either modifying their application or substituting
for them some new arrangement of a mutually satisfactory nature.
I gather, however, from your note that, in the opinion of your
Government, although a revision of treaty stipulations on the basis of
mutual concessions was desired by the United States before the
present disputes arose, yet the present time is inopportune for various
reasons, among which you mention the irritation created in the
United States by the belief that the action of the Canadian Govern-
ment has had for its object to force a new treaty on your Government.
Her Majesty's Government learn with much regret that such an im-
pression should prevail, for every effort has been made by the Cana-
dian Government to promote a friendly negotiation and to obviate the
differences which have now arisen. Indeed, it is hardly necessary
to remind you that, for six months following the denunciation by
your Government or the fishery articles of the treaty of Washington,
the North American fisheries were thrown open to citizens of the
United States without any equivalent, in the expectation that the
American Government would show their willingness to treat the
question in a similar spirit of amity and good will.
Her Majesty's Government can not but express a hope that the
whole correspondence may be laid immediately before Congress, as
they believe that its perusal would influence public opinion in the
PERIOD FEOM 1871 TO 1905. 873
United States in favor of negotiating, before the commencement of
the next fi.-;hing season, an arrangement based on mutual concessions,
and which would therefore (to use the language of your note) "con-
sist with the dignity, the interests, and the friendly relations of the
two countries."
Her Majesty's Government can not conceive that negotiations
commenced with such an object and in such a spirit could fail to be
successful; and they trust, therefore, that your Government will
endeavor to obtain from Congress, which is about to assemble, the
necessary powers to enable them to make to Her Majesty's Govern-
ment some definite proposals for the negotiation of a mutually advan-
tageous arrangement.
I have, etc., IDDESLEIGH.
Mr. Bayard to Sir L. West.
DEPARTMENT or STATE,
Washington, December 1, 1886.
SIR : As possessing additional and very disagreeable bearing upon
the general subject of the harsh treatment of American fishing vessels
during the late season by the local authorities of the maritime prov-
inces of Her Majesty's Dominion of Canada, I have the honor to send
you herewith a copy of a letter addressed to me, under date of the
12th ultimo, by Capt. Solomon Jacobs, master of the American fishing
schooner Molly Adams, of Gloucester, Mass. You will share, I doubt
not, the regret I feel at such churlish and inhospitable treatment of a
vessel which had freely, and with great loss and inconvenience, ren-
dered such essential service to the suffering and imperiled crew of a
Nova Scotian vessel. But for his generous act Captain Jacobs would
have had no occasion to put into Malpeque, or, subsequently, when
short of provisions, into Port Medway. As his narrative shows, the
local authorities at Malpeque treated him with coldness and rudeness,
making no provision to receive the Nova Scotian crew he had saved
from such imminent danger, even causing him to incur a pecuniary
burden in completion of his humane rescue, and even treating the
landing of the property so saved from the wreck of the Nova Scotian
vessel, on her own shores, as not lawful for an American fishing ves-
sel " within the three-mile limit."
The treatment of Captain Jacobs at Port Medway is a fitting sequel
to that received by him at Malpeque. Having undergone fourteen
days detention in the latter port, and having shared his purse and
slender stock of provisions with the men he had rescued, he put to
sea, when, his supplies falling short by reason of his charitable action,
he asked leave to purchase at Port Medway " half a barrel of flour, or
enough provisions to take his vessel and crew home." With full
knowledge of the cause of Captain Jacobs's dearth of provisions, even
this the collector at Port Medway absolutely refused, and threatened
Captain Jacobs with the seizure of his vessel " if he bought anything
whatever." The urgent need of supplies in which Captain Jacobs
stood, is shown by the fact that although the run with favorable
weather from Port Medway to his home port, Gloucester, Mass., only
occupied three days, his crew were on half rations for two days, and
without food for one day of that time. It is painful to conjecture
874 CORRESPONDENCE, ETC.
what might have been their distress had the Molly Adams encoun-
tered storms or head winds.
I am confident that Her Majesty's Government, than which none
has more generously fulfilled the obligations of the unwritten code
of seafaring humanity, will hasten to rebuke the treatment of Cap-
tain Jacobs at the hands of the local authorities of Nova Scotia, by
exhibiting gratitude for his act in saving seventeen of their own peo-
ple from death, and tendering him compensation for the delays and
expenses he has undergone through the breaking up of his legitimate
fishing venture.
The closing part of Captain Jacobs's letter may serve to show the
irresponsible and different treatment he was subjected to in the several
ports he visited, where the only common feature seems to have been a
surly hostility. At Port Hood, for instance, Captain Jacobs being
sick, his brother landed and reported in his stead, and, after paying
the regular fee, was told that his report was a nullity, and that the
vessel would be liable to penalty for unauthorized landing of her
crew unless her captain reported in person, which, although ill, he was
compelled to do, and the fee was thereupon levied a second time.
This is a small matter measured by the amount of the fee, but it is
surely discreditable and has a tendency which cannot be too much
deplored.
In my late correspondence I have treated of the necessary and
logical results of permitting so irritating and unfriendly a course of
action, and I will not therefore now enlarge on this subject.
I have, &c.,
T. F. BAYARD.
[Inclosure.]
Captain Jacobs to Mr. Bayard.
GLOUCESTER, November 1%, 1886.
The Hon. SECRETARY OF STATE.
SIR: I would most respectfully ask your attention to the following
facts as showing the spirit and manner of the application of law on
the part of the officials of the Dominion of Canada.
Oh or about the 26th of September, when off Malpeque, Prince Ed-
ward Island, I fell in with the British schooner Neskilita, of Locke-
port, Nova Scotia, which had run on Malpeque bar in making the
harbor. It was blowing very heavy; sea running high. The crew
was taken off by my vessel about 12 o'clock at night. There were
seventeen men in all. We took care of them, and fed them for three
days. The Neskilita became a total wreck. We saved some of the
material.
The cutter Critic, Captain McClennan, one of the Canadian cruis-
ers, was lying in the harbor of Malpeque. The captain boarded my
vessel, and I reported to him the facts of the wreck and the condition
of the men. They had saved a portion of their clothing. He neither
offered to care for the wrecked crew, to feed them, nor to give them
or myself any assistance whatever. Having some of the wrecked ma-
terial on board, I asked the captain of the cutter for permission to
land it. He referred me to the local collector. I went to the col-
lector, and he referred me back to the captain of the cutter. As the
PERIOD FROM 1871 TO 1905. 875
cutter had gone out, the captain of the Neskilita assumed the responsi-
bility and took the things ashore. The captain of the cutter told me
that I could put the saved material on board a Nova Scotia vessel if
I went outside of the three-mile limit to do it. I endeavored to get
some of the people on shore to take the wrecked crew, but no one
would do it unless I would be responsible for their board. Finally,
I gave the crew $60, enough to pay their passage home on the cars,
and also gave them provisions to last during their journey.
Malpeque is a barred harbor, and it is only in smooth water that it
is safe to go out over the bar, and my vessel drawing fourteen feet of
water, and there was only fourteen feet of water on the bar, it was
impossible for me to go out. By being detained in port in disposing
of this wrecked crew I lost over ten days of valuable time before I
could get out to fish, and during that time the fleet took large quanti-
ties of mackerel. Having to feed so many on my vessel left me short
of provisions, and in a short time afterwards I put into Port Medway,
and stated the circumstances, and asked permission to buy half a
barrel of flour or enough provisions, to take my vessel and crew home.
This was absolutely refused, and the collector threatened me that if I
bought anything whatever he would seize my vessel. I was obliged
to leave without obtaining anything and came home in three days, on
short rations, a distance of 300 miles. The wind and weather being
favorable, we had a good passage, but yet we were without provisions
for one day before we arrived home. I wish to state most emphatic-
ally that the officials differ in their construction of our rights. Fees
are different in every port, and as there is no standard of right fixed
by our own Government, the fishermen are at the mercy of a class of
officials hostile to them and their business, and with but little knowl-
edge of law or its application.
For instance, at Souris, Prince Edward Island, 15 cents is charged.
For reporting at Port Mulgrave, Nova Scotia, 50 cents is charged.
At Port Hood, I being sick, my brother went to the custom-house to
report. The official charged him 25 cents, and told him that unless
the captain reported in person the report was invalid; that men from
the vessel would not be allowed ashore unless the captain reported.
In the afternoon of the same day I was able to go to the office, and
was charged 25 cents for my report, making 50 cents. In the matter
of anchorage fees, at Port Mulgrave, Nova Scotia, I paid $1.50; at
Malpeque, $1; at Sydney, $1.17. At some ports we have to pay
anchorage fees every time we go in, as at Halifax ; at others twice for
the season.
Now, I would most respectfully state that the official service through-
out is actuated apparently from a principle of annoyance wherever
and whenever it can be so applied; that there is only harmony of
action in this regard alone, and that local laws and regulations are
enforced against us without regard to any rights we may have under
treaty; that the effect of this enforcement is not to promote but to
interfere and to limit by unjust pains, fees, and penalties the right of
shelter, obtaining wood and water, and maldng of repairs guaranteed
by treaty of 1818; that instead of the restriction contemplated the
local laws make a technical obligation that is without their province
or power, and enforce penalties that should never be admitted or
allowed by our Government.
876 CORBESPONDENCE, ETC.
And I would pray that in the case recited, and many others that can
be shown if required, we may be protected from local laws and their
enforcement that abridge our rights and have never received the sanc-
tion of the two great contracting powers in the construction and
agreement of the treaty of 1818.
I have &c. SOLOMON JACOBS.
$1.17.] NOETH SYDNEY, C. B., October IS, 1886.
Molly Adams, 117 tons.— Captain Jacobs to harbor commissioners.
M. J. PHUEEN.
To amount of harbor dues
Received payment.
No. 100.
$1.00.] Dominion of Canada.— Harbor dues.
MALPEQUE, P. E. I., 1886.
Received from Solomon Jacobs, master of the schooner Molly Adams, from
118 tons register, the sum of $1, being harbor dues at this port.
EDWARD LARKINS,
Harbor Master.
No.—.
Dominion of Canada. — Harbor dues.
PORT MULGRAVE, N. S., August SO, 1886.
Received from Solomon Jacobs, master of the schooner Mollie Adams, from
North Bay, 117 tons register, the sum of $1.50, being harbor dues at this port.
[SEAL.] DUNCAN C. GILLIES,
Harbor Master.
Mr. Phelps to Lord Iddesleigh.
LEGATION OF THE UNITED STATES,
London, December #, 1886.
MY LORD: Referring to the conversation I had the honor to hold
with your lordship on the 30th November, relative to the request of
my Government that the owners of the David J. Adams may be fur-
nished with a copy of the original reports, stating the charges on
which that vessel was seized by the Canadian authorities, I desire
now to place before you in writing the grounds upon which this
request is preferred.
It will be in the recollection of your lordship, from the previous
correspondence relative to the case of the Adams, that the vessel was
first taken possession of for the alleged offense of having purchased
a small quantity of bait within the port of Digby, in Nova Scotia, to
be used in lawful fishing. That later on a further charge was made
against the vessel of a violation of some custom-house regulation,
which it is not claimed, so far as I can learn, was ever before insisted
on in a similar case. I think I have made it clear in my note of the
2d of June last, addressed to Lord Rosebery, then foreign secretary,
that no act of the English or of the Canadian Parliament existed at
the time of this seizure which legally justified it on the ground of the
purchase of bait, even if such an act would have been authorized by
PERIOD FROM 1871 TO 1905. 877
the treaty of 1818. And it is a natural and strong inference, as I
have in that communication pointed out, that the charge of violation
of custom-house regulations was an afterthought, brought forward
in order to sustain proceedings commenced on a different charge and
found untenable.
In the suit that is now going on in the admiralty court at Halifax,
for the purpose of condemning the vessel, still further charges have
been added. And the Government of Canada seek to avail them-
selves of a clause in the act of the Canadian Parliament of May 22,
1868, which is in these words : " In case a dispute arises as to whether
any seizure has or has not been legally made or as to whether the per-
son seizing was or was not authorized to seize under this act * * *
the burden of proving the illegality of the seizure shall be on the
owner or claimant."
I can not quote this provision without saying that it is, in my judg-
ment, in violation of the principles of natural justice, as well as of
those of the common law. That a man should be charged by police
or executive officers with the commission of an offense and then be
condemned upon trial unless he can prove himself to be innocent is a
proposition that is incompatible with the fundamental ideas upon
which the administration of justice proceeds. But it is sought in the
present case to carry the proposition much further, and to hold that
the party inculpated must not only prove himself innocent of the of-
fense on which his vessel was seized, but also of all other charges upon
which it might have been seized that may be afterward brought for-
ward and set up at the trial.
Conceiving that if the clause I have quoted from the act of 1868 can
have effect (if allowed any effect at all) only upon the charge on
which the vessel was originally seized, and that seizure for one offense
can not be regarded as prima facie evidence of guilt of another,
the counsel for the owners of the vessel have applied to the prose-
cuting officers to be furnished with a copj of the reports made to the
Government of Canada in connection with the seizure of the vessel,
either by Captain Scott, the seizing officer, or by the collector of cus-
toms at Digby, in order that it might be known to the defendant and
be shown on trial what the charges are on which the seizure was
grounded, and which the defendant is required to disprove. This
most reasonable request has been refused by the prosecuting officers.
Under these circumstances I am instructed by my Government to
request of Her Majesty's Government that the solicitors for the own-
ers of the David J. Adams in the suit pending in Halifax may be fur-
nished, for the purposes of the trial thereof, with copies of the reports
above mentioned. And I beg to remind your lordship that there is
no time to be lost in giving the proper direction if it is to be in season
lor the trial, which, as I am informed, is being pressed.
I have, etc.,
E. J. PHELPS.
Mr. P helps to Lord Iddesleigh.
LEGATION or THE UNITED STATES,
London, December 3, 1886.
MY LORD: I have the honor to acknowledge the receipt of your
note of the 30th November, on the subject of the Canadian fisheries,
878 CORRESPONDENCE, ETC.
and to say that I shall at an early day submit to your lordship some
considerations in reply.
Meanwhile, I have the honor to transmit, in pursuance of the desire
expressed by your lordship in conversation on November 30, a copy
of an outline for a proposed ad interim arrangement between the two
governments on this subject which has been proposed by the Secre-
tary of State of the United States.
And I likewise transmit, in connection with it, a copy of the in-
struction from the Secretary of State which accompanied it, and
which I am authorized to submit to your lordship.
I have, etc.,
E. J. PHELPS.
Sir L. West to Mr. Bayard. .
BRITISH LEGATION,
Washington, December 6, 1886.
(Received December 7.)
SIR : With reference to your note of the 27th of October last, I have
the honor to inclose herewith a certified copy of a report of a com-
mittee of the privy council of Canada, together with copy of the cus-
toms laws,0 which documents contain the information required re-
specting the sale and exportation of fresh herring from Grand Manan
Island.
I have, &c.,
L. S. SACKVTLLE WEST.
[Enclosure.]
Certified copy of a report of a committee of the honorable the privy
council of Canada, approved by his excellency the governor-gen-
eral^ in council, on the 24th day of November, 1886.
The committee of the privy council having had their attention
called bv a telegram, dated 18th November instant, from Her Maj-
esty's minister at Washington, to his former dispatch of the 28th
October ultimo, inclosing a copy of a note from the honorable Mr.
Bayard, and the inclosures, asking for authentic information respect-
ing the Canadian laws regulating the sale and exportation of fresh
herring from the Grand Manan Island.
The minister of marine and fisheries, to whom said dispatch was
referred for early report, states that any foreign vessel " not manned
nor equipped, nor in any way prepared for taking fish," has full
liberty of commercial intercourse in Canadian ports upon the same
conditions as are applicable to regularly registered foreign merchant
vessels; nor is any restriction imposed upon any foreign vessel deal-
ing in fish of any kind different from those imposed upon foreign
merchant vessels dealing in other commercial commodities.
0 (1) 47 Viet, cap. 29, "An act to amend the customs act, 1883." (Assented
to April 19, 1884.) (2) 46 Viet, cap. 12, "An act to amend and consolidate the
acts respecting the customs." (Assented to May 25, 1883.)
PERIOD FROM 1871 TO 1905. 879
That the regulations under which foreign vessels may trade at
Canadian ports are contained in the customs laws of Canada (a copy
of which is herewith), and which render it necessary, among other
things, that upon arrival at any Canadian port a vessel must at once
enter inward at the custom-house, and upon the completion of her
loading clear outwards for her port of destination.
The committee recommend that your excellency be moved to trans-
mit a copy of this minute, together with a copy of the customs laws,
as containing authentic information respecting Canadian laws regu-
lating the sale and exportation of fresh herring, to Her Majesty's
minister at Washington, for the information of the honorable Mr.
Bayard, Secretary of State for the United States.
JOHN J. McGEE,
Clerk, Privy Council.
Mr. Bayard to Mr. Phelps.
No. 466.] DEPARTMENT OF STATE,
Washington, December 7, 1880.
SIR: I inclose herewith, for your information, a copy of my note
of the 1st instant to Sir Lionel West, Her Britannic Majesty's minis-
ter at this capital, concerning the treatment by the Canadian authori-
ties of the American fishing schooner Molly Adams, of Gloucester,
Mass.
I am, etc., T. F. BAYARD.
Sir L. West to Mr. Bayard.
WASHINGTON, December 7, 1886.
SIR: With reference to your note of the 30th of July last, I am in-
structed by the Earl of Iddesleigh to communicate to you the inclosed
copy of a dispatch, with its inclosures, from the officer administering
the Government of Canada, respecting the action of the customs
officer at Magdalen Islands, in the case of the United States fishing
vessel Mascotte.
I have, &c., L. S. SACKVILLE WEST.
[Inclosure.]
Acting Governor Lord A. G. Russell to Mr. Stanhope.
HALIFAX, NOVA SCOTIA, October «?/?, 1886.
SIR: With reference to your telegraphic message of the 22d Au-
gust, and to your dispatch of the 25th of August, marked Secret,
transmitting copy of a dispatch from Her Majesty's charge d'affaires
at Washington, with a note from Mr. Bayard, complaining of the
action of the customs officer at Magdalen Islands with reference to
the American fishery schooner Mascotte. I have the honor to for-
ward herewith a copy of an approved minute of the privy council of
Canada, embodying a report of the minister of marine and fisheries
on the subject.
I have, &c., A. G. RUSSELL, General.
880 CORRESPONDENCE, ETC.
[Sub-lnclosure l.J
Report of a committee of the honorable the privy council, approved
by Ms excellency the administrator of the Government in council
for Canada on the 30th day of October, 1886.
The committee of the privy council have had under consideration a
telegram of the 22d August and a dispatch of the 25th August last,
from the right honorable the secretary of state for the colonies, trans-
mitting copy of a letter from Her Majesty's minister at Washington,
inclosing a note from Mr. Secretary Bayard, complaining of the
action of the customs officer at Magdalen Islands, with reference to
the American fishing schooner Mascotte.
The minister of marine and fisheries, to whom the correspondence
was referred, observes that Mr. Bayard, in his note to the British
minister at Washington, says :
" I am also in possession of the affidavit of Alex. T. Vachem, mas-
ter of the American fishing schooner Mascotte, who entered Port
Amherst, Magdalen Islands, and was there threatened by the cus-
toms official with seizure of his vessel if he attempted to obtain bait
for fishing or take a pilot."
And from a report of the customs officer at Magdalen Islands, a
copy of which, so far as it relates to the case in point, is hereto an-
nexed, it appears that no grounds exist for the complaint made by
the master of the Mascotte.
The minister states that Captain Vachem [McEachern] was served
with a printed copy of the " warning," and was, in addition, informed
by the collector that under the treaty of 1818 he had no right to buy
bait or to ship men. He was not forbidden to take fish, but, on the
contrary, the collector pointed out to him on the chart the places in
which, by the convention of 1818, he, as a United States fisherman,
had the right to inshore fishing, and one of the places so pointed out
to him was the Magdalen Islands.
Notwithstanding the " warning " and the personal explanation of
the collector, it appears that Captain Vachem [McEachern | did go
up the country and attempt to hire men, and upon his return in-
formed the collector that he could not get any. For this, clearly
an illegal act, he was not interfered with by the collector.
The minister further observes that the convention of 1818, while
it grants to United States fishermen the right of fishing in common
with British subjects on the shores of the Magdalen Islands, does not
confer upon them privileges of trading or of shipping men, and it
was against possible acts of the latter kind, and not against fishing
inshore, or seeking the rights of hospitality guaranteed under the
treaty, that Captain Vachem [McEachern] "was warned by the col-
lector.
With reference to the remarks of the colonial secretary that " Her
Majesty's Government would recommend that special ' instructions
should be issued to the authorities at the places where the inshore
fisheries has been granted by the convention of 1818 to the United
States fishermen, calling their attention to the provisions of that con-
vention, and warning them that no action contrary thereto may be
taken in regard to United States fishing vessels," the minister states
that the circular instructions issued to collectors of customs recite the
PERIOD FROM 1871 TO 1905. 881
articles of the convention of 1818, which grant to United States fish-
ermen the right to take fish upon the shore of the Magdalen Islands,
and of certain parts of the coasts of Labrador and Newfoundland,
which instructions the collector in question had received, and the im-
port of which his report shows him to be familiar with.
In addition to this, the commander of the fishery protection steamer
La Ganadienne was ordered to visit Magdalen Islands, and explain
fully to collectors there the extent of their powers.
The minister, in view of these instructions, printed and oral, does
not deem it necessary to send further special orders.
The committee, concurring in the foregoing report, advise that your
excellency be moved to transmit a copy hereof, if approved, to the
right honorable the secretary of state for the colonies.
All which is respectfully submitted for your excellency's approval.
JOHN J. McGEE,
Clerk, Privy Council.
[Sub-lnclosure 2.]
Mr. Poinchaud to the Minister of Marine and Fisheries.
CUSTOM-HOUSE, MAGDALEN ISLANDS,
August 28, 1886.
SIR: I beg to acknowledge the receipt of your telegram respecting
captain of the schooner Mascotte's report in reference to my having
threatened him with seizure.
I replied, on receipt : " Mascotte information incorrect. Particu-
lars per mail Tuesday."
Particulars : On arrival of the captain I served him a " warning "
personally ; informed him he could not buy [ ( ? ) bait] or ship men.
I say this to all American fishermen. He tried, however, to hire;
went up the country to hire, but could not hire a man.
I saw him and men go up, and on his return he told me he could
not hire. I did not oppose him. He attended halibutting at Seven
Islands, Dominion. I found this out since. I deny having said I
would seize him if he obtained bait, himself or crew. I did not use
the term, but it suits the captain or owners to use it, as it serves their
meaning to make the report good.
I particularly showed him where, on the chart, he had the right to
fish inshore, to wit, at the Magdalen Islands, Cape Ray, &c., as per
treaty in my hands then.
I think I was very lenient with him and all American fishermen
calling here, knowing their privileges.
I treated them so gentlemanly that I am surprised to hear he made
the above inaccurate report to you.
Yours, &c., J. B. F. POINCHAUD,
Collector of Customs.
Sir L. West to Mr. Bayard.
WASHINGTON, December 7, 1886.
SIR : With reference to your notes of the 9th and 18th of August
last, I am instructed by the Earl of Iddesleigh to communicate to you
the inclosed copy of a dispatch from the governor -general of Canada,
92909°— 8. Doc. 870, 61-3, vol 3 17
882 CORRESPONDENCE, ETC.
with its inclosures, relative to the causes of complaint alleged by the
masters of the United States fishing vessels Rattler, Shiloh, and Julia
Ellen against Captain Quigley, of the Canadian cruiser Terror.
I have, &c.,
L. S. SACKVILLE WEST.
[Inclosure No. 1.]
'Acting Governor Lord A. G. Russell to Mr. Stanhope.
HALIFAX, NOVA SCOTIA, October 29, 1886.
SIR: I have the honor to forward herewith a copy of an approved
minute of the privy council of Canada, furnishing the report asked
for in your dispatch of the 1st September last, respecting the alleged
unfriendly treatment of the United States fishing schooner Rattler
in being required to report to the collector of customs at Shelburne,
Nova Scotia, when seeking that harbor for shelter.
I beg also to draw your attention to the statement of the captain
of the Terror, appended to the above order in council, which gives
the facts concerning the cases of the Shiloh and Julia Ellen, a report
as to which was requested in your dispatch of the 9th ultimo.
I have, &c.,
A. G. RUSSELL,
General.
[Sub-lnclosure.]
Report of a committee of the honorable the privy council for Canada,
approved by his excellency the administrator of the Government
in council on the 28th day of October, 1886.
The committee of the privy council have had their attention called
by a cablegram from the right honorable Mr. Stanhope as to when he
may expect answer to dispatch Rattler^ The honorable Mr. Bowell,
for the minister of marine and fisheries, to whom the papers were
referred, submits, for the information of his excellency in council,
that having considered the statements, copies of which are annexed,
of Captain Quigley, of the Government cutter Terror, and of the
collector of customs at Shelburne, with reference to the subject-matter
of the dispatch, he is of opinion that these officers only performed
their respective duties in the case of the Rattler, and that no just
grounds exist for the complaint put forward in Mr. Bayard's dis-
patch of a violation of that hospitality which all civilized nations
prescribe, or of a gross infraction of treaty stipulations.
The minister states that it does not appear at all certain, from the
statements submitted, that this vessel put into Shelburne for a harbor
in consequence of stress of weather. It does, however, appear that
immediately upon the Rattler coming into port, Captain Quigley
sent his chief officer to inform the captain of the Rattler that before
sailing he must report his vessel at the custom-house, and left on
board the Rattler a guard of two men to see that no supplies were
landed or taken on board or men allowed to leave the vessel during
her stay in Shelburne Harbor. That at midnight the guard fired a
shot as a signal to the cruiser, and the first officer at once again pro-
ceeded to the Rattler, and found the sails being hoisted and the
PEEIOD FROM 1871 TO 1905. 883
anchor weighed preparatory to leaving port. The captain being
informed he must comply with the customs regulations and report
his vessel, headed her up the harbor. That on the way up she became
becalmed, when the first officer of the Terror took the captain of the
Rattler in his boat and rowed him to the town, where the collector of
customs received his report at the unusual hour of 6 a. m. rather than
detain him, and the captain with his vessel proceeded to sea.
The minister observes that under section 25 of the customs act
every vessel entering a port in Canada is required to immediately
report at the customs, and the strict enforcement of this regulation
as regards the United States fishing vessels has become a necessity
in view of the illegal trade transactions carried on by the United
States fishing vessels when entering Canadian ports under pretext of
their treaty privileges.
That under these circumstances, a compliance with the customs act,
involving only the report of a vessel, cannot be held to be a hardship
or an unfriendly proceeding.
The minister submits, in view of the repeated groundless com-
plaints of being harshly treated that have been made during the
present season by captains of United States fishing vessels, and in
almost every instance traceable to a refusal or neglect to observe the
customs regulations, which, it is proper to state, are enforced upon
other vessels as well as those of the United States, herewith a letter
written by Captain Blake, of the United States fishing schooner
Andrew Bumkam,, which appeared in the Boston (Massachusetts)
Herald of the Tth instant, and also the editorial comments thereon
made in a subsequent issue of the paper referred to.
The minister believes that the statements made by Captain Blake
are strictly accurate, and as applied to other vessels are substantiated
by the weekly boarding reports, received by the fishery department
from the different captains engaged in the fisheries protection service.
He, the minister, therefore respectfully submits that the reflections
of Mr. Secretary Bayard, characterizing the treatment extended to
the captain of the Rattler as unwarrantable and unfriendly, is not
merited, in view of the facts as stated by Captain Quigley and Col-
lector Attwood.
The committee concur in the report of the acting minister of marine
and fisheries and advise that your excellency be moved to transmit
a copy of tliis minute, if approved, to the right honorable Her Maj-
esty's principal secretary of state for the colonies.
All which is respectfully submitted for your excellency's approval.
JOHN J. McGEE,
Clerk, Privy Council.
[Inclosure No. 2.]
•
[Extract from thp Boston Herald of October 9. 1R86.]
A Fishing Captairfs Experience. — The letter of Capt. Nathan F.
Blake, of the fishing schooner Andrew Bnrnham* of this city, which
we published on Wednesday, would apparently indicate that the
Canadian officials have not been disposed to push the requirements
of their law quite as vigorously as some of our fishermen have main-
tained. Captain Blake says he has experienced not the least trouble
in his intercourse with the Canadian officials, but that as he treated
884 COBRESPONDENCE, ETC.
them courteously, they, on their side, have reciprocated in like terms.
There is, undoubtedly, a great deal of bitterness felt on both sides,
and probably this bitterness has led both parties to be ungracious in
their own conduct, and to exaggerate the wrongs they have endured,
hardships frequently due to an unwillingness to observe the require-
ments of the law as these are now laid down. If all American fish-
ing captains exhibited the same courtesy and moderation that Captain
Blake has shown, we imagine that there would be very little trouble
in arriving at an equitable and pleasing understanding with Canada.
[Inclosure No. 3.]
Captain Quigley to Major Silton.
SHELBURNE, September 30, 1886.
SIR: I beg to acknowledge the receipt of your letter of the 27th
instant, requesting the circumstances connected with the boarding of
the vessels Rattler, Julia and Ellen, and Shiloh.
In the case of the Rattler, she came into Shelburne Harbor on the
evening of the 4th August at 6 o'clock. She being at some distance
from where I was anchored, and it being too rough to send my boat
so far, I fired a musket signal for her to round-to, which she did, and
came to an anchor alongside of my vessel.
I then sent the chief officer to board her; he reported she put in for
shelter. The captain was then told by the chief officer to report his
vessel before he sailed, and that he must not let his men on shore,
and that he would leave two men, who are always armed, on board
to see that he did not otherwise break the law.
About midnight the captain hoisted his sails to leave port, thereby
evading the customs law requiring him to report (for which I refer
you to section 25 of the customs act), and disregarding my instruc-
tions.
The watchman fired a signal, calling my attention to his act, when
I sent the chief officer to tell him he must lower his sails and report
his vessel in the morning, otherwise he would likely have his vessel
detained. He did so and sailed up in company with the chief officer
at 4 o'clock a. m. On the way it fell calm, and the vessel anchored.
The chief officer with my boat's crew rowed him up to the custom-
house, where he reported at 6 a. m. ; and returned, passing out to sea
at 8 a. m. The captain was only asked to report his vessel as all others
do, but was not disposed to do so.
In the case of the Julia and Ellen, she came into the harbor of
Liverpool on the 9th of August, about 5 p. m. Being some distance
from me, I fired a blank musket shot to round her to. When she
anchored I boarded her, and the captain reported that he came in for
water. I told him to report his vessel in the morning, as it was then
after customs hours, and that he must not let his men ashore, and that
I would leave two men on his vessel to see that my instructions were
carried out, and to see that he did not otherwise break the law.
In the morning, at 8 o'clock, I called for the captain to go to the
custom-house and told him his men could go on and take water while
he was reporting, so that he would be all ready to sail when he
returned, which they did, and he sailed at noon.
PERIOD PROM 1871 TO 1905. 885
In the case of the ShMoh, she came into the harbor about 6 p. m. on
the 9th of August, at Liverpool, and a signal was fired in her case the
same as the others.
When she anchored I boarded her, arid the captain reported she was
in for water. I told him it was then too late to report at the customs
till morning, and that he must not allow his crew on shore ; also that
I would leave two men on board to see that he did not otherwise break
the law, and that my instructions were carried out.
In the morning I called for the captain, when taking the Julia and
Ellen's captain ashore. When there I told him, as I did the other,
that his men could go on taking water while he was reporting, so
that he could sail when he returned, and not be delayed. This they
did not do.
I have reason to know that it was not water this vessel came in for,
as several of the crew lived there, and it was for the purpose of letting
his men ashore, and not for taking water, that he put in. He after-
wards emptied six barrels of water, stating that they were sour, and
fooled all day filling them, delaying the time, that he might get his
crew on shore. I refused to allow his crew on shore for any other
purpose than to take water, after completing which, the weather being
fine, I ordered him to sea in the evening.
The signals that were fired were not intended to make them come-to
quickly, but as a signal for them to either round-to or show their
ensign.
After the Shiloh sailed the harbor master informed me that she
landed two men at the mouth of the harbor, 1 miles down, before she
reported, and the evening she sailed she called after dark and picked
them up.
In many cases it is an understood thing between the captains and
crews to let the men ashore and then make out they have deserted.
In all cases where a vessel puts in for shelter the captain reports, and
the rest of his crew are not allowed ashore, as the vessel only put in
for the privilege of shelter and for no other purpose.
When she puts in for water, after reporting, the captain is allowed
to take his boats and the men he requires to procure water, and the
rest remain on board, after which he is ordered to sea. When in for
repairs he is allowed all the privileges he requires after reporting, and
when ready is ordered to sea. In all cases, except when in for repairs,
I place men on board to see that the law is not violated, as many of
those vessels put into the harbor and make taking water and seeking
shelter an excuse either to get men or land them, or to allow them a
chance to see their friends, or to get goods ashore if the vessel is on
her way from American ports to the fishing grounds, and have landed
men here and at other ports on this coast in my absence.
In one case in this port, a vessel, finding I was in the harbor, let
men take a boat and land, she going on her way home to the States.
That is why I put men on these vessels, to keep them from breaking
the law under cover of night. I might remark here that the collector
of customs at Liverpool informed me that the Shiloh on her previous
voyage remained in port five days after being ordered out, delaying
for the purpose of letting the men be with their friends.
Now that they are not allowed all the privileges they once enjoyed,
it is an outrage on my part.
886 CORRESPONDENCE, ETC.
These are the facts connected with those vessels which I reported to
Captain Scott while in Halifax some time ago. I treat all courte-
ously, but firmly, and find no trouble with any but a few who wish to
evade the law.
I am, etc., THOMAS QUIGLEY.
Government Cruiser Terror.
[Inclosure No. 4.]
Mr. Attwood to the Commissioner of Customs, Ottawa.
CUSTOM-HOUSE, SHELBURNE, September 6, 1886.
SIR : I have to acknowledge the receipt of your telegram of the 4th
instant relative to schooner Rattler, and I wired an answer this morn-
ing as requested.
On the morning of the 4th ultimo chief officer of Terror, accom-
panied by Capt. A. F. Cunnigham, called at this office. Captain
Cunningham reported his vessel inwards as follows, viz: Schooner
Rattler^ of Gloucester, 93 tons register, 16 men, from fishing banks,
with 465 barrels mackerel, came in for shelter.
I was afterwards informed by the officer of cutter that they found
the schooner the evening before at anchor off Sandy Point, 5 miles
down the harbor. Two men from cutter were put on board, and the
master required to report at customs in the morning. I was also
informed that the master, Captain Cunningham, made an attempt to
put to sea in the night by hoisting sails, weighing anchor, &c., but
was stopped by officer from cutter.
I am, &c., W. H. ATTWOOD,
Collector.
Sir L. West to Mr. Bayard.
WASHINGTON, December 7, 1886.
SIR : I am instructed by the Earl of Iddesleigh to communicate to
you the inclosed copy of a dispatch, with its inclosures, from the
officer administering the Government of Canada, expressing the re-
gret of the Dominion Government at the action of the captain of the
anadian cutter Terror in lowering the United States flag from the
United States fishing schooner Marion Grimes, of Gloucester, Mass.,
while that vessel was under detention at Shelburne, Nova Scotia.
I have, &c.,
L. S. SACKVILLE WEST.
[Inclosure No. 1.]
Acting Governor Lord A. G. Russell to Mr. Stanhope.
HALIFAX, NOVA SCOTIA, October 27, 1886.
SIR : I have the honor to transmit herewith a copy of an approved
minute of the privy council of Canada, expressing the regret of my
Government at the action of the captain of the Canadian cutter
Terror in lowering the United States flag from the United States
fishing schooner Marion Grimes, of Gloucester, Mass., while that
PERIOD FROM 1871 TO 1905. 887
vessel was under detention at Shelburne, Nova Scotia, by the collector
of customs at that port for an infraction of the customs regulations.
I have communicated a copy of this order in council to Her
Majesty's minister at Washington.
I have, &c., A. G. KUSSELL,
General.
[Sub-inclosure 1.]
Report of a committee of the honorable the privy council for Canada,
approved by his excellency the administrator of the Government
in council on the 26th October, 1886.
On a report, dated the 14th October, 1886, from the Hon. Mac-
kenzie Bowell, for the minister of marine and fisheries, stating that
on Monday, the llth October instant, the United States fishing
schooner Marion Grimes, of Gloucester, Mass., was under detention
at Shelburne, Nova Scotia, by the collector of customs at that port
for an infraction of the customs regulations ; that while so detained,
and under the surveillance of the Canadian Government cutter
Terror, the captain of the Marion Grimes hoisted the United States
flag.
The minister further states that it appears that Captain Quigley,
of the Terror, considered such act as an intimation that there was an
intention to rescue the vessel, and requested Captain Landry to take
the flag down. This request was complied with. An hour later,
however, the flag was again hoisted, and on Captain Landry being
asked if his vessel had been released, and replying that she had not,
Captain Quigley again requested that the flag be lowered. This was
refused, when Captain Quigley himself lowered the flag, acting under
the belief that while the Marion Grimes was in possession of the
customs authorities, and until her case had been adjudicated upon,
the vessel had no right to fly the United States flag.
The minister regrets that he should have acted with undue zeal,
although Captain Quigley may have been technically within his right
while the vessel was in the custody of the law.
The committee advise that your excellency be moved to forward a
copy of this minute, if approved, to the right honorable the secretary
of state for the colonies, and to Her Majesty's minister at Washing-
ton, expressing the regret of the Canadian Government at the oc-
currence.
All of which is respectfully submitted for your excellency's ap-
proval.
JOHN J. McGEE,
Clerk, Privy Council.
Mr. Bayard to Mr. Phelps.
No. 470.] DEPARTMENT OF STATE,
Washington, December 8, 1886.
SIR : With reference to instruction No. 466, of the 7th instant, con-
cerning the case of the American fishing schooner Molly Adams, I
888 COBEESPONDENCB, ETC,
now transmit to you herewith, for your further information, a copy
of the letter of Mr. Solomon Jacobs, of the 12th ultimo, in which
the matter was brought to the attention of the Department.
I am, etc..
T. F. BAYARD.
Mr. Bayard to Sir L. S. Sackmlle West.
DEPARTMENT or STATE,
Washington, December 11, 1886.
SIR : I have the honor to acknowledge your note of the 7th instant,
with which you communicate, by the direction of the Earl of Iddes-
leigh, a copy of the report of a committee of the privy council of
Canada, approved October 26 last, wherein the regret of the Cana-
dian Government is expressed for the action of Captain Quigley,
of the Canadian Government cruiser Terror, in lowering the flag of
the United States fishing schooner Marion Grimes whilst under de-
tention by the customs authorities, in the harbor of Shelburne, Nova
Scotia, on October 11 last.
Before receiving this communication I had instructed the United
States minister at London to make representation of this regrettable
occurrence to Her Majesty's minister for foreign affairs, and desire
now to express my satisfaction at the voluntary action of the Cana-
dian authorities, which, it seems, was taken in October last, but of
which I had no intimation until your note of the 7th instant was
received.
I have, etc., T. F. BAYARD.
Mr. Bayard to Mr. Phelps.
No. 471.] DEPARTMENT OF STATE,
Washington, December 13, 1886.
SIR: On the 8th instant I received from the British minister at
this capital a communication dated the 7th of this month, accom-
panied by a copy of the minutes of the honorable privy council of
Canada, in relation to the action of Captain Quigley, of the Canadian
cutter Terror, in lowering the flag of the United States fishing
schooner Marion Grimes whilst under detention by the customs
authorities in Shelburne Harbor, on the llth of October last.
As this occurrence had been made the subject of an instruction to
you by me, on the 6th ultimo, whereby you were requested to bring the
incident to the attention of Her Majesty's Government, I hasten to
inform you of the voluntary action of the Canadian Government and
of their expression of regret for the action, of the officer referred to.
The copy of the correspondence and proceedings of the Canadian
authorities discloses the dates of their action in the premises, of
which, however, my earliest information was on the 8th instant, in
the note of Sir Lionel West, a copy of which is herewith sent to you.
I am, etc.,
T. F. BAYARD.
PERIOD FROM 1871 TO 1905. 889
Lord Iddesleigh to Mr. Phelps.
FOREIGN OFFICE, December 16, 1886.
SIR: I have the honor to acknowledge the receipt of your note of
the 27th ultimo relative to the case of the Marion Grimes, stated to
have been fined and detained at Shelburne, Nova Scotia, in October
last.
As other cases besides that of the Marion Grimes are alluded to in
the documents forwarded in your note, it will be desirable to take each
case separately, and inform you shortly of the steps which Her
Majesty's Government have taken in regard to them.
In respect to the case of the Marion Grimes, I have already re-
ceived, through Her Majesty's secretary of state for the colonies, a
copy of a dispatch from the Dominion Government, in which they
express their regret at the action taken by Captain Quigley in hauling
down the United States flag. I have transmitted a copy of this dis-
patch to Her Majesty's minister at Washington, with instructions to
communicate it to Mr. Bayard, and I beg leave to now inclose a copy
of it for your information.
Her Majesty's Government cannot doubt that, as respects the inci-
dent of the flag, the apology thus spontaneously tendered by the
Canadian Government will be accepted by the United States Govern-
ment in the friendly and conciliatory disposition in which it is
offered, whilst as regards the other statements concerning Captain
Quigley's conduct, Her Majesty's Government do not at present feel
themselves in a position to express any opinion. •
The Dominion Government have been requested to furnish a full
report on the various circumstances alleged, and when this is received
I shall have the honor to address a further communication to you
upon the subject.
As concerns the case of the Julia Ellen and Shiloh, it will probably
suffice to communicate to you the inclosed copies of reports from the
Canadian Government relative to these two vessels. These reports
have already been sent to Her Majesty's minister at Washington for
communication to Mr. Bayard.
The protests made by the United States Government in the case of
the Everett Steele was not received in this country until the 1st
ultimo ; and although the Canadian Government have been requested
by telegraph to furnish a report upon the circumstances alleged, suffi-
cient time has not yet elapsed to enable Her Majesty's Government
to be in possession of the facts as reported by the Dominion Govern-
ment.
Her Majesty's Government greatly regret that incidents of the
description alluded to should occur, and they can only renew the
assurance conveyed to you in my note of the 30th ultimo, that whilst
firmly resolved to uphold the undoubted treaty rightfc of Her
Majesty's North American subjects in regard to the fisheries, they will
also equally maintain the undoubted rights of United States fisher-
men to obtain shelter in Canadian ports, under such restrictions as
may be necessary to prevent their abusing the privileges reserved to
them by treaty.
I notice that in Mr. Bayard's note to you of the 6th ultimo, con-
cerning the case of the Marion Grimes, and also in his note to Sir L.
890 CORRESPONDENCE, ETC.
West of the 19th October last, relative to the case of the Everett Steele,
an old discussion is revived which Her Majesty's Government had
hoped was finally disposed of by the correspondence which took place
on the subject in 1815 and 1816.
I allude to the argument that a right to the common enjoyment of
the fisheries by Great Britain and the United States, after the separa-
tion of the latter from the mother country, was recognized by the
treaty of 1783, although the exercise of that right was made subject to
certain restrictions. I refer to this point merely to observe that the
views of Her Majesty's Government in relation to it have not been
modified in any way since the date of Lord Bathurst's note of the
30th of October, 1815, to Mr. John Quincy Adams.
I have, etc. IDDESLEIGH.
Sir L. S. Sackville West to Mr. Bayard.
WASHINGTON, December &4i 1886.
(Received December 27.)
SIR: With reference to your note of the llth ultimo, I have the
honor to inform you that I am requested by the Earl of Iddesleigh to
acquaint you that Her Majesty's Government have desired the Cana-
dian Government to furnish them with a report on the circumstances
attending the alleged inhospitable treatment of United States fishing
schooners Laura Sayward and Jennie Seavers by the Canadian
authorities.
I have, etc., L. S. SACKVILLE WEST.
Sir L. S. Sackville West to Mr. Bayard.
WASHINGTON, January 6, 1887.
(Received January 7.)
SIR: With reference to your letters of the 19th and 20th October, I
have the honor to transmit to you herewith reports from the Govern-
ment of Canada relative to the cases of the United States fishing ves-
sels Pearl Nelson and Everett Steele, which I have been instructed by
the Earl of Iddlesleigh to communicate to the United States Gov-
ernment.
I have, etc., L. S. SACKVILLE WEST.
[Inclosure No. 1.]
The Marquis of Lansdowne to Mr. Stanhope.
GOVERNMENT HOUSE,
Ottawa, November %9, 1886.
SIR: I have the honor to transmit herewith a copy of an approved
minute of the privy council of Canada, furnishing the report asked
for in your telegraphic message of the 6th November, with reference
to the detention of the American schooner Everett Steele, at Shel-
burne, Nova Scotia, for an infraction of the customs regulations of
the Dominion.
I have, etc., LANSDOWNE.
PERIOD FKOM 1871 TO 1905. 891
[Sub-lnclosure.]
Report of a committee of the honorable the privy council for Canada,
approved by his excellency the governor-general in council, on the
18th November, 1886.
The committee of the privy council are in receipt of a telegram
from the right honorable the secretary of state for the colonies, in
the words:
" United States Government protest against proceedings of Cana-
dian authorities in the case of Pearl Nelson and Everett Steele, said
to have put into Arichat and Shelburne, respectively, for purposes
sanctioned by convention. Particulars by post. Send report soon as
possible."
The minister of marine and fisheries, to whom the telegram was
referred, submits that the schooner Everett Steele appears from the
report of the collector of customs at Shelburne to have been at that
port on the 25th March last, and sailed without reporting. On her
return to Shelburne in September she was detained by the collector
of customs for an infraction of the customs law.
The captain having assured the collector that he had been misled
by the deputy harbor-master, who informed him his vessel could re-
main in port for twenty-four hours without entering, and that he
had no intention of violating the customs regulations, this statement
was reported to the minister of customs at Ottawa, when the vessel
was at once allowed to proceed to sea, and that no evidence is given
of any desire or intention of denying to the captain of the Everett
Steele any treaty privileges he. was entitled to enjoy.
The committee, concurring in the above, respectfully recommend
fchat your excellency be moved to transmit a copy of this minute, if
approved, to the right honorable the secretary of state for the colonies.
All of which is respectfully submitted for your excellency's ap-
proval.
JOHN J. McGflE,
Clerk Privy Council.
[Inclosure No. 2.]
The Marquis of Lansdowne to Mr. Stanhope.
GOVERNMENT HOUSE,
Ottawa, November 29, 1886.
SIR : With reference to your telegraphic message of the 6th instant,
asking to be furnished with a report in the case of the Pearl Nelson
and Everett Steele, I have the honor to transmit herewith a copy of
an approved minute of the privy council of Canada, embodying a
report of my minister of marine and fisheries, to which is appended
a copy of the correspondence which has passed between the commis-
sioner of customs for Canada and the United States consul-general
at Halifax relating to the case of the American schooner Pearl Nelson.
I have, etc.,
LANSDOWNE.
892 CORRESPONDENCE, ETC.
[Sub-lnclosure.]
Report of a committee of the honorable the privy council for Canada,
approved ~by his excellency the governor-general in council, on the
18th November, 1886.
The committee of the privy council are in receipt of a telegram
from the right honorable the secretary of state for the colonies, in
the words:
" United States Government protest against proceedings of Cana-
dian authorities in case of Pearl Nelson and Everett Steele, said to
have put into Arichat and Shelburne, respectively, for purposes sanc-
tioned by convention. Particulars by post. Send report soon as
possible."
The minister of marine and fisheries, to whom the telegram was
referred, submits a copy of a letter addressed by the commissioner of
customs for Canada to the consul-general of the United States at
Halifax, and also a copy of Mr. Phelan's reply thereto.
The minister submits that it is clear, from Captain Kempt's affi-
davit, that he was guilty of an infraction of the customs regulations
in allowing men to land from his vessel before she had been reported,
and the minister of customs having favorably considered Captain
Kempt's representations as to his ignorance of the customs regula-
tions requiring that vessels should be reported before landing either
men or cargo therefrom, has remitted the fine of $200 which had been
imposed in the case of the American schooner Pearl Nelson.
The minister further submits that it would appear from the col-
lector of customs' report that his remark that " he would seize the
vessel " had reference solely to her violation of the customs law, and
that no evidence is given of any desire or intention of denying to the
captain of the Pearl Nelson any treaty privileges he was entitled to
enjoy.
The committee, concurring in the above, respectfully recommend
that your excellency be moved to transmit a copy of this minute, if
approved, to the right honorable the secretary of state for the col-
onies.
All which is respectfully submitted for your excellency's approval.
JOHN J. McGEE,
Clerk Privy Council, Canada.
[Inclosure No. 3.]
Mr. Parmelee to Mr. Phelan.
OTTAWA, October 88, 1886.
SIR : I have the honor to acknowledge the receipt of your letter of
the llth instant, re seizure of the American schooner Pearl Nelson
for an infraction of the customs laws, etc.
The commissioner of customs' report in connection with this mat-
ter, which has been approved by the minister of customs, reads as
follows :
" The undersigned, having examined this case, has come to the con-
clusion that the captain of the vessel did violate the provisions of
sections 25 and 180 of ' the customs act, 1883,' by landing a number of
PERIOD FROM 1871 TO 1905. 893
his crew before going to the custom-house to report ; that his plea of-
having come into port solely from stress of weather is inconsistent
with the circumstances, and is denied by the collector of customs, who
reports that ' the night was one of the finest and most moderate expe-
rienced there this summer,' and that ' his crew were landed only in
the morning.' That even if the ' stress of weather ' plea was sus-
tained by facts it would not exempt him from the legal requirement
of reporting his vessel before ' breaking bulk ' or landing his crew,
and it is evident that there was nothing to hinder his reporting, as
the crew appear to have had no difficulty in handling the vessel's
boats; that it was very easy for the crew or any of them to have taken
valuable contraband goods ashore on their persons in the absence of
any customs officer at the landing-place. Inasmuch, however, as
there is no charge of actual smuggling preferred against the vessel,
the undersigned respectfully recommends that the deposit of $200 be
refunded, deducting therefrom any expenses incurred.
" J. JOHNSON."
I trust the above may be considered a satisfactory answer to your
letter referred to.
I have, etc., W. G. PARMELEE,
Assistant Commissioner.
[Inclosurc No. 4.]
Mr. Phelan to Mr. Parmelee.
HALIFAX, November 0, 1886.
SIR: I have the honor to acknowledge the receipt of your commu-
nication of the 22d ultimo, concerning the action of the customs de-
partment of Canada in the case of the American schooner Pearl Nel-
son, and to say I was much pleased at the decision arrived at in that
case. I have informed the Government of the United States that the
fine in the case referred to was ordered to be refunded.
I have also to say that the Department of State, in acknowledging
the receipt of a dispatch from me setting forth that you had placed
all the papers in the cases of the American schooners Cnttenden and
Ilolbroolt, in my hands for perusal, said : " The attention of Mr. Par-
melee in referring the matter to you is appreciated. It shows a
proper spirit."
I trust the department of customs will pass on the other cases as
soon as possible.
I have, etc., M. H. PHELAN,
Consul- General.
Lord Iddesleigh to Mr. P helps.
FOREIGN OFFICE, January 11, 1887.
SIR: Her Majesty's Government have considered the request con-
tained in your note of the 2d ultimo, to the effect that the owners of
the David J. Adams may be funished with copies of the original
reports stating the charges on which that vessel was seized by the
Canadian authorities ; and I have now the honor to state to you that
894 CORRESPONDENCE, ETC.
if the owners of this vessel are legally entitled to be furnished with
those reports they can obtain them by the process of the courts; and
there seems no ground for the interference of Her Majesty's Govern-
ment with the ordinary course of justice.
As regards the means of obtaining information for the purposes
of the defense, I would point out that in the report of the Canadian
minister of marine and fishery, of which a copy was communicated to
you on the 23d July last, it is stated that from a date immediately
after the seizure " there was not the slightest difficulty in the United
States consul-general, and those interested in the vessel, obtaining
the fullest information," and that " apart from the general knowledge
of the offenses which it was claimed the master had committed, and
which was furnished at the time of the seizure, the most technical and
precise details were readily obtainable at the registry of the court, and
from the solicitors of the Crown."
With respect to the statement in your note that a clause in the
Canadian act of May 22, 18G8, to the effect that, " In case a dispute
arises as to whether any seizure has or has not been legally made, or
as to whether the person seized was or was not authorized to seize
under this act, the burden of proving the illegality of the seizure
shall be on the oAvner or claimant," is in violation of the principles
of national justice, as well as of those of the common law, I have to
observe that the statute referred to is cap. 61 of 1868, which provides
for the issue of licenses to foreign fishing vessels, and for the for-
feiture of such vessels fishing without a license; and that the provi-
sions of Article 10, to which you take exception, are commonly found
in laws against smuggling, and are based on the rule of law that a
man who pleads that he holds a license or other similar document
shall be put to the proof of his plea and required to produce the
document.
I beg leave to add that the provisions of that statute, so far as they
relate to the issue of licenses, has been in operation since the year 1870.
I have, etc.,
IDDESLEIGH.
Sir J. Pauncefote to Mr. Phelps.
FOREIGN OFFICE, January H, 1887.
SIR : With reference to my predecessor's note of the 30th of Novem-
ber last, I have the honor to transmit to you a copy of a report from
the Canadian minister of justice upon the seizure of the American
fishing vessel David J. Adams.
I have forwarded a copy of this report to Her Majesty's minister
at Washington for communication to the United States Government.
I have the honor, etc.,
J. PAUNCEFOTE,
(For the Secretary of State.)
PERIOD FROM 1871 TO 1905. 895
Sir L. S. Sackville West to Mr. Bayard.
BRITISH LEGATION,
Washington, January 19, 1887. (Received January 21.)
SIR : With reference to your note of the 23d of September last, I
have the honor to inclose to you herewith a copy of a dispatch from
the governor-general of Canada to Her Majesty's secretary of state
for the colonies, inclosing a report from his Government on the case
of the United States fishing vessel Crittenden.
I have, etc.,
L. S. SACKVILLE WEST.
[Inclosure No. l.J
Lord Lansdowne to Mr. Stanhope.
CANADA, GOVERNMENT HOUSE,
Ottawa, December 4, 1886.
SIR : In reply to your dispatch of the 12th of October last, trans-
mitting a copy of a letter with its inclosure from the foreign office,
requesting to be furnished with a report in the case of the United
States fishing vessel Crittenden, I have the honor to forward here-
with a copy of an approved minute of the privy council of Canada
embodying a report of my minister of marine and fisheries, to which
is appended a statement of the customs officer at Steep. Creek on the
subject.
I have, etc., LANSDOWNE.
[Sub-inclosure.]
Certified copy of a report of a committee of the honorable the privy
council, appro ved by his excellency the governor-general in council,
on the 16th November, 1886.
The committee of the privy council have had under consideration
a dispatch, dated 12th October, 188C, from the secretary of state for
the colonies, transmitting a copy of a letter from Mr. Bayard, United
States Secretary of State, to the British minister at Washington, call-
ing attention to an alleged denial of the rights guaranteed by the con-
vention of 1818 in the case of the American fishing schooner Critten-
den by the customs officer at Steep Creek, in the Straits of Canso,
Nova Scotia.
The minister of marine and fisheries, to whom the dispatch and in-
closure were referred, submits a statement of the customs officer at
Steep Creek, and observes that the captain of the Crittenden violated
the customs laws by neglecting to enter his vessel, as requested by
the customs officer, and landing and shipping a man clearly exceeded
any freaty provision he was entitled to avail himself of.
It would appear that the remark made by the customs officer " that
he would seize the vessel " had reference solely to the captain's viola-
tion of the customs regulations, and, the minister submits, cannot be
construed into a denial of any treaty privileges the master was entitled
to enjoy.
The committee, concurring in the above, respectfully recommended
that your excellency be moved to inform the right honorable the
896 CORRESPONDENCE, ETC.
secretary of state for the colonies in the sense of the report of the
ministr}^ of marine and fisheries.
All which is respectfully submitted for your excellency's approval.
JOHN J. McGEE,
Clerk Privy Council.
[Inclesure No. 2.]
"Mr. Carr to the Minister of Marine and Fisheries.
STEEP CREEK, November 1, 1886.
SIR: Yours of the 28th of October came to hand to-day, and, in
reply, can state to you that part of the crew of the schooner Gritten-
den came on shore at Steep Creek and landed their barrels and filled
them with water. I went direct to the men who were filling the bar-
rels, and told them to come and enter before taking wood and water.
They said they would not enter or make any report. I told them that
I would seize the schooner Crittenden for violating the customs laws.
They said they would risk that, as the schooner was now put of the
way about 3 miles from my station down the straits, and it was im-
possible for me to board the vessel. They also landed a man the same
day with his effects, and on their return from Gloucester to the Bay
St. Lawrence they shipped a man. Was looking out for the vessel,
but could not catch her. I reported the case to the collector of cus-
toms at Port Hawkesbury, and on the schooner Crittenden's return
from the Bay St. Lawrence she was seized, and Collector Bourinot
got the affidavits of the captain of the said schooner and also of some
of the crew, which he stated to the department. I was in the office
at the time when Collector Bourinot received a telegram from the de-
partment to release the schooner Crittenden on the deposit of $400.
I remain, etc.,
JAMES H. CARR, Pro Collector.
Mr. Phelps to the Marquis of Salisbury.
LEGATION or THE UNITED STATES,
London, January 26, 1887.
MY LORD : Various circumstances have rendered inconvenient an
earlier reply to Lord Iddesleigh's note of November 12, on the subject
of the North American fisheries, and the termination of the fishing
season has postponed the more immediate necessity of the discussion ;
but it seems now very important that before the commencement of
another season a distinct understanding should be reached between
the United States Government and that of Her Majesty relative to
the course to be pursued by the Canadian authorities towards Amer-
ican vessels.
It is not without surprise that I have read Lord Iddesleigh's re-
mark, in the note above mentioned, referring to the treaty of 1818,
that Her Majesty's Government " have not as yet been informed in
what respect the construction placed upon that instrument by the
Government of the United States differs from their own."
PERIOD FEOM 1811 TO 1905. 897
Had his lordship perused more attentively my note to his prede-
cessor in office, Lord Rosebery, under date of June 2, 1886, to which
reference was made in my note to Lord Iddesleigh of September 11,
1886, I think he could not have failed to apprehend distinctly the
construction of that treaty for which the United States Government
contends and the reasons and arguments upon which it is founded.
I have again respectfully to refer your lordship to my note to Lord
Rosebery of June 2, 1886, for a very full and, I hope, clear exposi-
tion of the ground taken by the United States Government on that
point. It is unnecessary to repeat it, and I am unable to add to it.
In reply to the observations in my note to Lord Iddesleigh of Sep-
tember 11, 1886, on the point whether such discussion should be sus-
pended in these cases until the result of the judicial proceedings in
respect to them should be made known, a proposition to which, as I
stated in that note, the United States Government is unable to accede,
his lordship cites in support of it some language of Mr. Fish, when
Secretary of State of the United States, addressed to the United
States consul-general at Montreal in May, 1870. From the view then
expressed by Mr. Fish the United States Government has neither dis-
position nor occasion to dissent. But it can not regard it as in any
way applicable to the present case.
It is true beyond question that when a private vessel is seized for an
alleged infraction of the laws of the country in which the seizure
takes place, and the fact of the infraction, or the exact legal construc-
tion of the local statute claimed to be transgressed, is in dispute, and
is in process of determination by the proper tribunal, the Government
to which the vessel belongs will not usually interfere in advance of
such determination and before acquiring the information on which
it depends. And especially when it is not yet informed whether the
conduct of the officer making the seizure will not be repudiated by
the Government under which he acts, so that interference will be un-
necessary. This is all, in effect, that was said by Mr. Fish on that
occasion. In language immediately following that quoted by Lord
Iddesleigh he remarks as follows (italics being mine) :
" The present embarrassment is that while we have reports of sev-
eral seizures upon grounds as stated by the interested parties, which
seem to be in contravention of international law and special treaties
relating to the fisheries, these alleged causes of seizure are regarded
as pretensions of over zealous officers of the British navy and the colo-
nial vessels which will, as we hope and are bound in courtesy to ex-
pect, be repudiated by the courts, before which our vessels are to be
brought for adjudication."
But in the present case the facts constituting the alleged infraction
by the vessel seized are not in dispute, except some circumstances
of alleged aggravation not material to the validity of the seizure.
The original ground of the seizure was the purchase by the master of
the vessel of a small quantity of bait from an inhabitant of Nova
Scotia, to be used in lawful fishing. This purchase is not denied by
the owners of the vessel, and the United States Government insists,
first, that such an act is not in violation of the treaty of 1818, and
second, that no then existing statute in Great Britain or Canada
authorized any proceedings against the vessel for such an act, even if
92909°— S. L>oc. 870, 61-3, voi 3 18
898 CORRESPONDENCE, ETC.
it could be regarded as in violation of the terms of the treaty, and no
such statute has been as yet produced.
In respect to the charge subsequently brought against the Adams,
and upon which many other vessels have been seized, that of a tech-
nical violation of the customs act, in omitting to report at the custom-
house, though having no business at the port (and in some instances
where the vessel seized was not within several miles of the land-
ing), the United States Government claim, while not admitting that
the omission to report was even a technical transgression of the act,
that even if it were, no harm having been done or intended, the pro-
ceedings against the vessels for an inadvertence of that sort were in a
high degree harsh, unreasonable, and unfriendly, especially as for
many years no such effect has been given to the act in respect to the
fishing vessels, and no previous notice of a change in its construction
has been promulgated.
It seems apparent, therefore, that the cases in question, as they are
to be considered between the two Governments, present no points
upon which the decision of the courts of Nova Scotia need be awaited
or would be material.
Nor is it any longer open to the United States Government to an-
ticipate that the acts complained of will (as said by Mr. Fish in the
dispatch above quoted) be repudiated as the " pretensions of over-
zealous officers of the * * * colonial vessels," because they have
been so many times repeated as to constitute a regular system of pro-
cedure, have been directed and approved by the Canadian Govern-
ment, and have been in no wise disapproved or restrained by Her
Majesty's Government, though repeatedly and earnestly protested
against on the part of the United States.
It is therefore to Her Majesty's Government alone that the United
States Government can look for consideration and redress. It can
not consent to become, directly or indirectly, a party to the proceed-
ings complained of, nor to await their termination before the ques-
tions involved between the two Governments shall be dealt with.
Those questions appear to the United States Government to stand
upon higher grounds, and to be determined, in large part, at least,
upon very different considerations from those upon which the courts
of Nova Scotia must proceed in the pending litigation.
Lord Iddesleigh, in the note above referred to, proceeds to express
regret that no reply has yet been received from the United States
Government to the arguments on all the points in controversy con-
tained in the report of the Canadian minister of marine and fisheries,
of which Lord Rosebery had sent me a copy.
Inasmuch as Lord Iddesleigh and his predecessor, Lord Rosebery.
have declined altogether, on the part of Her Majesty's Government,
to discuss these questions until the cases in which they arise shall
have been judicially decided, and as the very elaborate arguments
on the subject previously submitted by the United States Govern-
ment, remain, therefore without reply, it is not easy to perceive why
further discussion of it on the part of the United States should be
expected. So soon as Her Majesty's Government consent to enter
upon the consideration of the points involved, any suggestions it
may advance will receive immediate and respectful attention on the
PERIOD FROM 1871 TO 1905. 899
part of the United States. Till then further argument on that side
would seem to be neither consistent nor proper.
Still less can the United States Government consent to be drawn, at
any time, into a discussion of the subject with the colonial Govern-
ment of Canada. The treaty in question, and all the international
relations arising out of it, exist only between the Governments of
the United States and of Great Britain, and between those Govern-
ments only can the}7 be dealt with. If, in entering upon that consid-
eration of the subject which the United States have insisted upon,
the arguments contained in the report of the Canadian minister
should be advanced by Her Majesty's Government, I do not conceive
that they will be found difficult to answer.
Two suggestions contained in that report are, however, specially
noticed by Lord Iddesleigh, as being " in reply " to the arguments
contained in my note. In quoting the substance of the contentions
of the Canadian minister on the particular points referred to, I do
not understand his lordship to depart from the conclusion of Her
Majesty's Government he had previously announced, declining to
enter upon the discussion of the cases in which the questions arise.
He presents the observations of the report only as those of the Cana-
dian minister made in the argument of points upon which Her
Majesty's Government decline at present to enter.
I do not, therefore, feel called upon to make any answer to these
suggestions; and more especially as it seems obvious that the subject
can not usefully be discussed upon one or two suggestions appertain-
ing to it, and considered by themselves alone. While those men-
tioned by Lord Iddesleigh have undoubtedly their place in the gen-
eral argument, it will be seen that they leave quite untouched most
of the propositions and reasoning set forth in my note to Lord Rose-
bery above mentioned. It appears to me that the question can not
be satisfactorily treated aside from the cases in which they arise,
and that when discussed the whole subject must be gone into in
its entirety.
The United States Government is not able to concur in the favor-
able view taken by Lord Iddesleigh of the efforts of the Canadian
Government " to promote a friendly negotiation." That the conduct
of that Government has been directed to obtaining a revision of the
existing treaty is not to be doubted ; but its efforts have been of such
a character as to preclude the prospect of a successful negotiation so
long as they continue, and seriously to endanger the friendly rela-
tions between the United States and Great Britain.
Aside from the question as to the right of American vessels to
purchase bait in Canadian ports, such a construction has been given
to the treaty between the United States and Great Britain as amounts
virtually to a declaration of almost complete non-intercourse with
American vessels. The usual qomity between friendly nations has
been refused in their case, and in one instance, at least, the ordinary
offices of humanity. The treaty of friendship and amity which, in
return for very important concessions by the United States to Great
Britain, reserved to the American vessels certain specified privileges
has been construed to exclude them from all other intercourse com-
mon to civilized life and to universal maritime usage among nations
900 CORRESPONDENCE, ETC.
not at war, as well as from the right to touch and trade accorded
to all other vessels.
And quite aside from any question arising upon construction of the
treaty, the provisions of the custom-house acts and regulations have
been systematically enforced against American ships for alleged petty
and technical violations of legal requirements in a manner so unrea-
sonable, unfriendly, and unjust as to render the privileges accorded
by the treaty practically nugatory.
It is not for a moment contended by the United States Govern-
ment that American vessels should be exempt frpm those reasonable
port of custom-house regulations which are in force in countries
which such vessels have occasion to visit. If they choose to violate
such requirements, their Government will not attempt to screen them
from the just legal consequences.
But what the United States Government complain of in these cases
is that existing regulations have been construed with a technical
strictness, and enforced with a severity, in cases of inadvertent and
accidental violation where no harm was done, which is both unusual
and unnecessary, whereby the voyages of vessels have been broken
up and heavy penalties incurred. That the liberal and reasonable
construction of these laws that had prevailed for many years, and to
which the fishermen had become accustomed, was changed without
any notice given. And that every opportunity of unnecessary inter-
ference with the American fishing vessels, to the prejudice and de-
struction of their business, has been availed of. Whether in any of
these cases, a technical violation of some requirement of law had,
upon close and severe construction, taken place, it is not easy to deter-
mine. But if such rules were generally enforced in such a manner in
the ports of the world, no vessel could sail in safety without carrying
a solicitor versed in the intricacies of revenue and port regulations.
It is unnecessary to specify the various cases referred to, as the
facts in many of them have been already laid before Her Majesty's
Government.
Since the receipt of Lord Iddesleigh's note the United States Gov-
ernment has learned with grave regret that Her Majesty's assent has
been given to the act of the Parliament of Canada, passed at its late
session, entitled "An act further to amend the act respecting fishing
by foreign vessels," which has been the subject of observation in the
previous correspondence on the subject between the Governments of
the United States and of Great Britain.
By the provisions of this act any foreign ship, vessel, or boat
(whether engaged in fishing or not) found within any harbor in
Canada, or within 3 marine miles of " any of the coasts, bays, or
creeks of Canada," may be brought into port by any of the officers or
persons mentioned in the act, her cargo searched, and her master
examined upon oath touching the cargo and voyage under a heavy
penalty if the questions asked are not truly answered; and if such
ship has entered such waters "for any purpose not permitted by
treaty or convention or by law of the United Kingdom or of Canada,
for the time being in force, such ship, vessel, or boat and the tackle,
rigging, apparel, furniture, stores, and cargo thereof shall be for-
feited."
PERIOD FROM 1871 TO 1905. 901
It has been pointed out in my note to Lord Iddesleigh, above men-
tioned, that the 3-mile limit referred to in this act is claimed by the
Canadian Government to include considerable portions of the high
seas, such as the Bay of Fundy, the Bay of Chaleur, and similar
waters, by drawing the line from headland to headland, and that
American fishermen had been excluded from those waters accordingly.
It has been seen also that the term " any purpose not permitted by
treaty " is held by that Government to comprehend every possible
act of human intercourse, except only the four purposes named in
the treaty — shelter, repairs, wood, and water.
Under the provisions of the recent act, therefore, and the Canadian
interpretation of the treaty, any American fishing vessel that may
venture into a Canadian harbor, or may have occasion to pass through
the very extensive waters thus comprehended, may be seized at the
discretion of any one of numerous subordinate officers, carried into
port, subjected to search and the examination of her master upon
oath, her voyage broken up, and the vessel and cargo confiscated, if it
shall be determined by the local authorities that she has ever even
posted or received a letter or landed a passenger in any part of Her
Majesty's dominions in America.
And it is publicly announced in Canada that a larger fleet of
cruisers is being prepared by the authorities, and that greater vigi-
lance will be exerted on their part in the next fishing season than in
the last.
It is in the act to which the one above referred to is an amendment
that is found the provision to which I drew attention in a note to
Lord Iddesleigh of December 2, 1886, by which it is enacted that in
case a dispute arises as to whether any seizure has or has not been
legally made, the burden of proving the illegality of the seizure shall
be upon the owner or claimant.
In his reply to that note of January 11, 1887, his lordship intimates
that this provision is intended only to impose upon a person claiming
a license the burden of proving it. But a reference to the act shows
that such is by no means the restriction of the enactment. It refers
in the broadest and clearest terms to any seizure that is made under
the provisions of the act, which covers the whole subject of protection
against illegal fishing; and it applies not only to the proof of a
license to fish, but to all questions of fact whatever, necessary to a
determination as to the legality of a seizure or the authority of the
person making it.
It is quite unnecessary to point out what grave embarrassments
may arise in the relations between the United States and Great
Britain under such administration as is reasonably to be expected
of the extraordinary provisions of this act and its amendment, upon
which it is not important at this time further to comment.
It will be for Her Majesty's Government to determine how far its
sanction and support will be given to further proceedings, such as the
United States Government have now repeatedly complained of and
have just ground to apprehend may be continued by the Canadian
authorities.
It was with the earnest desire of obviating the impending difficulty,
and of preventing collisions and dispute until such time as a perma-
nent understanding between the two Governments could be reached,
902 CORRESPONDENCE, ETC.
that I suggested, on the part of the United States, in my note to Lord
Iddesleigh of September 11, 1886, that an ad interim construction of
the terms of the treaty might be agreed on, to be carried out by in-
structions to be given on both sides without prejudice to the ultimate
claims of either, and terminable at the pleasure of either. In an
interview I had the honor to have with his lordship, in which this
suggestion was discussed, I derived the impression that he regarded
it with favor. An outline of such an arrangement was therefore sub-
sequently prepared by the United States Government, which, at the
request of Lord Iddesleigh, was submitted to him.
But I observe, with some surprise, that in his note of November
30, last, his lordship refers to that proposal made in my note of llth
September, as a proposition that Her Majesty's Government " should
temporarily abandon the exercise of the treaty rights which they
claim and which they conceive to be indisputable."
In view of the very grave questions that exist as to the extent of
those rights, in respect to which the views of the United States Gov-
ernment differ so widely from those insisted upon by Her Majesty's
Government, it does not seem to me an unreasonable proposal that
the two Governments, by a temporary and mutual concession, without
prejudice, should endeavor to reach some middle ground of ad interim
construction, by which existing friendly relations might be pre-
served, until some permanent treaty arrangements could be made.
The reasons why a revision of the treaty of 1818 can not now, in
the opinion of the United States Government, be hopefully under-
taken, and which are set forth in my note to Lord Iddesleigh of Sep-
tember 11, have increased in force since that note was written.
I again respectfully commend the proposal above mentioned to the
consideration of Her Majesty's Government.
I have, etc.,
E. J. PHELPS.
Mr. Bayard to Mr. Phelps.
[Extract]
No. 520.] DEPARTMENT OF STATE,
Washington, January 27, 1887.
SIR: Your dispatch No. 416, of the 12th instant, transmitting a
copy of the note, dated the llth, received by you from the late Lord
Iddesleigh, in response to your note of December 2, 1886, requesting
copies of the papers in the case of the David J. Adams, has been re-
ceived.
The concluding part of Lord Iddesleigh's note seems to demand at-
tention, inasmuch as the argument employed to justify the provisions
of Article 10 of the Canadian Statutes, cap. 61 of 1868, which throw
on the claimant the burden of proving the illegality of a seizure,
appears to rest upon the continued operation of Article 1 of that
statute, relative to the issue of licenses to foreign fishing vessels. The
note in question states "that the provisions of that statute, so far as
they relate to the issue of licenses, has [have?] been in operation since
the year 1870."
PERIOD FROM 1871 TO 1905. 903
It appears from the correspondence exchanged in 1870 between
this Department and Her Majesty's minister in Washington (see the
volume of Foreign Relations, 1870, pp. 407-411) that on the 8th of
January, 1870, an order in council of the Canadian Government de-
creed " that the system of granting fishing license to foreign vessels
under the act 31 Vic., cap. 61, be discontinued, and that henceforth
all foreign fishermen be prevented from fishing in the waters of
Canada."
During the continuance of the fishery articles of the treaty of
Washington Canadian fishing licenses were not required for fisher-
men of the United States, and since the termination of those articles,
July 1, 1885, this Department has not been advised of the resumption
of the licensing system under the statute aforesaid.
The faulty construction of the last paragraph of Lord Iddesleigh's
note, as transmitted with your No. 416, suggests the possibility of a
clerical error in the preparation or transcription of that note, and
that it may have been intended to state that the licensing provisions
of the statute, cap. 61, 1868, " have not been in operation since 1870,"
but in that case it is not easy to apply the argument advanced.
I am, etc.,
T. F. BAYARD.
Mr. Bayard to Sir L. S. Sackville West.
DEPARTMENT OF STATE,
Washington, January 87, 1887.
SIR : I have the honor to inclose a copy of an affidavit of the cap-
tain and two members of the crew of the schooner Sarah H. Prior,
of Boston, stating the refusal of the captain of the Canadian revenue
cutter Critic to permit the restoration to the former vessel, in the port
of Malpeque, Prince Edward Island, of her large seine, which she
had lost at sea^ and which had been found by the captain of a Cana-
dian vessel, who offered to return the seine to the Prior, but was pre-
vented from doing so by the captain of the Critic.
This act of prevention, the reason for which is not disclosed, prac-
tically disabled the Prior, and she was compelled to return home with-
out having completed her voyage, and in debt.
I have the honor to ask that Her Majesty's Government cause in-
vestigation of this case to be made.
I have, etc., T. F. BAYARD.
[Inclosure No. 1.]
Mr. Prior to Mr. Bayard.
BOSTON, December 88, 1886.
DEAR SIR : I wrote to Senator W. P. Frye, setting forth in my let-
ter the facts contained in the affidavit inclosed. He wrote me to have
it sworn to and to send it to you, which I have done. Will you please
let me know what course is best to pursue in regard to it, whether to
enter a claim or not? I think it is a clear, strong case, and the claim
would be a just one, and will be pleased to receive your advice in
the matter.
Yours, very truly, P. H. PRIOR.
904 CORRESPONDENCE, ETC.
[Sub-inclosure.]
Affidavit of the captain and crew of the schooner Sarah H. Prior.
On this 28th day of December, A. D. 1886, personally appeared be-
fore me Captain Thomas McLaughlin, master, and George F. Little
and Charles Finnegan, two of the crew of the schooner Sarah H.
Prior, of Boston, and being duly sworn, signed and made oath to thr
following statement of facts:
On September 10, 1886, the schooner Sarah H. Prior, while run-
ning for Malpeque, Prince Edward Island, and about seven miles
from that port, lost her large seine. Four days afterwards the
schooner John Ingalls, of Halifax, N. S., Captain Wolfe, came into
Malpeque and had the seine on board, which she had picked up at
sea. Captain Wolfe offered to deliver the seine to Captain Mc-
Laughlin in consideration of twenty-five dollars, which offer the
latter accepted and paid him the money. The Canadian revenue
cutter Critic, Captain McLearn, was lying at Malpeque at the time,
and Captain McLaughlin went to see him, to ascertain if there would
be any trouble in delivering the seine. Captain McLearn would not
allow the captain of the John Ingalls to give up the seine, so the lat-
ter returned the twenty-five dollars to Captain McLaughlin.
The schooner Sarah H. Prior had two seines, one large and one
small size. It was the large one which she lost and the schooner John
Ingalls picked up. She had to leave Malpeque without it, and con-
sequently came home with a broken voyage and in debt.
THOS. MCLAUGHLIN.
GEORGE F. LITTLE.
CHARLES FINNEGAN.
SUFFOLK:, ss:
BOSTON, December 88, 1886.
Personally appeared before me Thomas McLaughlin, George F.
Little, and Charles Finnegan, who signed and made* oath that the
foregoing statement was true.
[SEAL.] CHARLES W. HALLSTRAIN,
Notary Public.
Sir L. S. Sackville West to Mr. Bayard.
WASHINGTON, January 28, 1887.
(Received January 29.)
SIR: I have the honor to acknowledge the receipt of your note of
yesterday's date, and to inform you that I have submitted the case of
the American schooner Sarah H. Prior to Her Majesty's Government
for investigation, as requested by you.
I have, etc.,
L. S. SACKVILLE WEST.
PERIOD FROM 1871 TO 1905. 905
Sir L. S. Sackville West to Mr. Bayard.
WASHINGTON, January 28, 1887.
(Received January 29.)
SIR : With reference to your notes of the 19th and 20th of October
last, I have the honor to transmit to you herewith copy of a dispatch
from the governor-general of Canada to Her Majesty's secretary of
state for the colonies relative to the cases of the American fishing ves-
sels Pearl Nelson and Everett Steele, which I am instructed by Her
Majesty's principal secretary of state for foreign affairs to communi-
cate to the United States Government.
I have, etc.,
L. S. SACKVILLE WEST.
[Inclosure.]
The Marquis of Lansdowne to Mr. Stanhope.
GOVERNMENT HOUSE, December W, 1886.
SIR: I had the honor of receiving your dispatch of the 22d of
November in regard to the case of the Everett Steele and Pearl Nel-
son, recently detained at Shelburne and Arichat, Nova Scotia, for
non-compliance with the customs regulations of the Dominion.
The circumstances under which the conduct of these vessels at-
tracted the attention of the customs authorities were set out in the
privy council orders of the 18th of November, certified copies of
which were forwarded to you under cover of my dispatches of the
29th November.
The information contained in these documents was obtained in
order to comply with the request for a report on these two cases which
you had addressed to me by telegram on a previous date. I have
now carefully examined the fuller statements made by Mr. Bayard,
both as to the facts and as to the considerations by which the conduct
of the local officials should in his opinion have been governed. You
will I think find, on reference to the privy council orders already
before you, that the arguments advanced by Mr. Bayard have been
sufficiently met by the observations of my minister of marine and fish-
eries, whose reports are embodied in those orders.
It is not disputed that the Everett Steele was in Shelburne Harbor
on the 25th March and sailed thence without reporting. In con-
sequence of this omission on the master's part his vessel was, on her
return to Shelburne, in September, detained by the collector. The
master having 'explained that his presence in the harbor had been
occasioned by stress of weather, and that his failure to report was
inadvertent, and this explanation having been telegraphed to the
minister of marine at Ottawa, the vessel was at once allowed to pro-
ceed to sea ; her release took place at noon on the day following that
of her detention.
In the case of the Pearl Nelson it is not denied that nine of her
crew were landed in Arichat Harbor at a late hour in the evening of
her arrival and before the master had reported to the custom-house.
It is obvious that if men were to be allowed to go on shore, under
such circumstances, without notification to the authorities, great
facilities would be offered for landing contraband goods, and there
906 CORRESPONDENCE, ETC.
can be no question that the master, by permitting his men to land,
was guilty of a violation of sections 25 and 180 of the customs act.
There seems to be reason to doubt his statement that he was driven
into Arichat by stress of weather; but, be this as it may, the fact of
his having entered the harbor for a lawful purpose would not carry
with it a right to evade the law to which all vessels frequenting
Canadian ports are amenable. In this case, as in that of the Everett
Steele, already referred to, the statement of the master that his offense
was due to inadvertence was accepted, and the fine imposed at once
remitted.
I observe that in his dispatch relating to the first of these cases
Mr. Bayard insists with much earnestness upon the fact that certain
" prerogatives " of access to the territorial waters of the Dominion
were specially reserved under the convention of 1818 to the fishermen
of the United States, and that a vessel entering a Canadian harbor
for any purpose coming within the terms of Article 1 of that conven-
tion has as much right to be in that harbor as she would have to be
upon the high seas, and he proceeds to institute a comparison between
the detention of the Everett Steele and the wrongful seizure of a
vessel on the high seas upon the suspicion of being engaged in the
slave trade. Mr. Bayard further calls attention to the special con-
sideration to which, from the circumstances of their profession, the
fishermen of the United States are, in his opinion, entitled, and he
dwells upon the extent of injury which would result to them if they
were debarred from the exercise of any of the rights assured to them
by treaty or convention.
I observe that in Sir Julian Pauncefote's letter inclosed in your
dispatch it is stated that the secretary of state for foreign affairs
wishes to urge upon the Dominion Government the great importance
of issuing stringent instructions to its officials not to interfere with
any of the privileges expressly reserved to United States fishermen
under Article 1 of the convention of 1818.
I trust that the explanations which I have already been able to give
in regard to the cases of these vessels will have satisfied you that the
facts disclosed do not show any necessity for the issuing of instruc-
tions other than those already circulated to the local officials intrusted
with the execution of the customs as fishery law.
There is certainly no desire on the part of my Government (nor,
I believe, does the conduct of the local officials justify the assumption
that such a desire exists) to curtail in any respect the privileges
enjoyed by United States fishermen in Canadian waters. It can not
on the other hand be contended that because these privileges exist,
and are admitted by the Government of the Dominion, those who
enjoy them are to be allowed immunity from the regulations to which
all vessels resorting to Canadian waters are without exception sub-
jected under the customs act of 1883 and the different statutes relating
to the fisheries of the Dominion.
In both of the cases under consideration there was a clear and un-
doubted violation of the law, and the local officials would have been
culpable if they had omitted to notice it. That there was no animus
on their part or on that of the Canadian Government is, I think,
clearly proved by the promptitude with which the circumstances were
investigated and the readiness shown to overlook the offense, and to
remit the penalty incurred, as soon as proof was forthcoming that the
PERIOD FROM 1871 TO 1905. 907
offense had been unintentionally committed. In support of this vievf
I would draw your attention to the letter (see inclosure to my dis-
patch of 29th November) of Mr. Phelan, the consul-general of the
United States at Halifax, who has expressed his own satisfaction at
the action of the authorities in the case of the Pearl Nelson and who
also refers to a communication received by him from the Department
of State, in which it is stated that the conduct of the assistant com-
missioner of customs in dealing with two other cases of a somewhat
similar complexion " shows a proper spirit."
I have, etc., LANSDOWNE.
Mr. Bayard to Mr. Phelps.
No. 528.] DEPARTMENT OF STATE,
Washington, February 1, 1887.
SIR : I received on the 29th ultimo a reply from the British minis-
ter at this capital to my notes to him on the 19th and 20th of October
last, relative to the cases of the American fishing vessels Pearl Nelson
and Everett Steele.
The note of Sir Lionel West serves only to inclose the communica-
tion of the Marquis of Lansdowne to Mr. Stanhope. Whilst the letter
of Lord Lansdowne proceeds upon the assumption of grounds never
accepted by this Government as the basis of discussion of the rights
of our fishermen, and fails to admit the obvious and essential right
of American fishermen to resort for purposes not abusive of the an-
cient privileges guaranteed by the treaty of 1818, in the Canadian
bays and harbors, yet I am glad to see that the tone of his discussion
indicates the growth of a disposition to consider the case of the Amer-
ican fishermen in a more friendly light than heretofore in the discus-
sions of the past season.
The letters will be communicated to Congress as supplementary to
the information heretofore laid before them by the President.
I am, etc.,
T. F. BAYARD.
Mr. Bayard to Mr. Phelps.
No. 536.] DEPARTMENT OF STATE,
Washington, February 8, 1887.
SIR : I have to acknowledge your dispatch of the 27th ultimo, No.
423, which was accompanied by a copy of the note to you of the late
Lord Iddesleigh, under date of December 16, 1886, and also one from
Sir Julian Pauncefote, dated January 14, 1887, and also a copy of
your note to the Marquis of Salisbury under date of January 26
ultimo.
I desire to express my entire satisfaction with the position correctly
assumed and admirably and logically sustained by you in this relation.
Your telegrams of the 5th instant and of yesterday, with reference
to the same question, have been received.
908 CORRESPONDENCE, ETC.
As part of the general case, and as bearing with unusual clearness
upon the Canadian claims of construction of the convention of 1818, 1
transmit herewith copies of a note from Sir Lionel West, dated the
28th ultimo, inclosing a dispatch from Lord Lansdowne, governor-
general of Canada, to Mr. Stanhope, dated November 9, 1886, which is
accompanied by reports of the committee of the privy council for
Canada, and or Mr. Thompson, the minister of Justice at Ottawa.
It may be noted that this reply of the British minister at this capital
to my note to him of May 20, 1886, is dated on the 28th ultimo, giving
some eight months for the completion of the circuit of correspondence.
At page 15 of the printed inclosure and in the last paragraph will
be found the explicit avowal of claim by the Canadian Government to
employ the convention of 1818 as an instrument of interference with
the exercise of open-sea fishing by citizens of the United States, and to
give it such a construction as will enable the fishermen of the prov-
inces better to compete at less " disadvantage in the markets of the
United States " in the pursuit of the deep-sea fisheries.
At the outset of this discussion, in my note to Sir Lionel West, of
May 10, 1886, I said :
" The question, therefore, arises whether such a construction is
admissible as would convert the treaty of 1818 from being an instru-
mentality for the protection of the inshore fisheries along the de-
scribed parts of the British American coasts 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
treaty whatever, has grown up and now exists under the concur-
rent and friendly laws and mercantile regulations of the respective
countries."
When I wrote this I hardly expected that the motives I suggested,
rather than imputed, would be admitted by the authorities of the
provinces, and was entirely unprepared for a distinct avowal thereof,
not only as regards the obstruction of deep-sea fishing operations by
our fishermen, but also in respect of their independent commercial
intercourse, yet it will be seen that the Canadian minister of justice
avers that it is " most prejudicial " to the interests of the provinces
" that United States fishermen should be permitted to come into their
harbors on any pretext."
The correspondence now sent to you, together with others relating
to the same subject that has taken place since the President's message
of December 8, communicating the same to Congress, will be laid
before Congress without delay, and will assist the two houses mate-
rially in the legislation proposed for the security of the rights of
American fishing vessels under treaty and international law and
comity.
" I am, etc., T. F. BAYARD.
The Marquis of Salisbury to Mr. White.
FOREIGN OFFICE, March %4, 1887.
SIR: In a note of the 3d December last, addressed to my prede-
cessor, Mr. Phelps was good enough to transmit a copy of a dispatch
from Mr. Bayard, dated the 15th of the preceding month, together
PERIOD FROM 1871 TO 1905. 909
with an outline of a proposed ad interim arrangement " for the settle-
ment of all questions in dispute in relation to the fisheries on the
northeastern coasts of British North America."
Her Majesty's Government have given their most careful con-
sideration to that communication, and it has also received the fullest
examination at the hands of the Canadian Government, who entirely
share the satisfaction felt by Her Majesty's Government at any
indication on the part of that of the United States of a disposition to
make arrangements which might tend to put the affairs of the two
countries on a basis more free from controversy and misunderstand-
ing than unfortunately exists at present. The Canadian Govern-
ment, however, deprecate several passages in Mr. Bayard's dispatch
which attribute unfriendly motives to their proceedings, and in
which the character and scope of the measures they have taken to
enforce the terms of the convention of 1818 are, as they believe,
entirely misapprehended.
They insist that nothing has been done on the part of the Cana-
dian authorities since the termination of the Treaty of Washington
in any such spirit as that which Mr. Bayard condemns, and that all
that has been done with a view to the protection of the Canadian
fisheries has been simply for the purpose of guarding the rights
guaranteed to the people of Canada by the convention of 1818, and
of enforcing the statutes of Great Britain and of Canada in relation
to the fisheries. They maintain that such statutes are clearly within
the powers of the respective Parliaments by which they were passed,
and are in conformity with the convention of 1818, especially in view
of the passage of the convention which provides that the American
fishermen shall be under such restrictions as shall be necessary to
prevent them from abusing the privileges thereby reserved to them.
There is a passage in Mr. Bayard's dispatch to which they have
particularly called the attention of Her Majesty's Government. It
is the following :
" The numerous seizures made have been of vessels quietly at
anchor in established ports of entry, under charges which up to this
day have not been particularized sufficiently to allow of intelligent
defense; not one has been condemned after trial and hearing, but
many have been fined, without hearing or judgment, for technical
violation of alleged commercial regulations, although all commercial
privileges have been simultaneously denied to them."
In relation to this paragraph the Canadian Government observes
that the seizures of which Mr. Bayard complains have been made
upon grounds which have been distinctly and unequivocally stated
in every case; that, although the nature of the charges has be^n
invariably specified and duly announced, those charges have not in
any case been answered; that ample opportunity has in every case
been afforded for a defense to be submitted to the executive author-
ities, but that no defense has been offered beyond the mere denial of
the right of the Canadian Government; that the courts of the various
provinces have been open to the parties said to have been aggrieved,
but that not one of them has resorted to those courts for redress. To
this it is added that the illegal acts which are characterized by Mr.
Bayard as " technical violations of alleged commercial regulations,"
involved breaches, in most of the cases not denied by the persons wha
had committed them, of established commercial regulations which.
910 CORRESPONDENCE, ETC.
far from being especially directed or enforced against citizens of the
United States, are obligatory upon all vessels (including those of
Canada herself) which resort to the harbors of the British North
American coast.
I have thought it right, in justice to the Canadian Government,
to embody in this note almost in their own terms their refutation of
the charges brought against them by Mr. Bayard; but I would
prefer not to dwell on this part of the controversy, but to proceed at
once to the consideration of the six articles of Mr. Bayard's memo-
randum in which the proposals of your Government are embodied.
Mr. Bayard states that he is " encouraged in the expectation that
the propositions embodied in the memorandum will be acceptable to
Her Majesty's Government, because, in the month of April, 1866,
Mr. Seward, then Secretary of State, sent forward to Mr. Adams,
at that time United States minister in London, the draft of a protocol
which, in substance, coincides with the first article of the proposal
now submitted."
Article 1 of the memorandum no doubt to some extent resembles
the draft protocol submitted in 1866 by Mr. Adams to Lord Clarendon
(of which I inclose a copy for convenience of reference), but it con-
tains some important departures from its terms.
Nevertheless, the article comprises the elements of a possible accord,
and if it stood alone I have little doubt that it might be so modeled,
with the concurrence of your Government, as to present an acceptable
basis of negotiation to both parties. But, unfortunately, it is fol-
lowed by other articles which, in the view of Her Majesty's Govern-
ment and that of Canada, would give rise to endless and unprofitable
discussion, and which, if retained, would be fatal to the prospect of
any satisfactory arrangement, inasmuch as they appear as a whole
to be based on the assumption that upon the most important points
in the controversy the views entertained by Pier Majesty's Govern-
ment and that of Canada are wrong, and those of the United States
Government are right, and to imply an admission by Her Majesty's
Government and that of Canada that such assumption is well
founded.
I should extend the present note to an undue length were I to
attempt to discuss in it each of the articles of Mr. Bayard's memo-
randum, and to explain the grounds on which Her Majesty's Govern-
ment feel compelled to take exception to them. I have therefore
thought it more convenient to do so in the form of a counter-memo-
randum, which I have the honor to inclose, and in which will be
found, in parallel columns, the articles of Mr. Bayard's memorandum,
and the observations of Her Majesty's Government thereon.
Although, as you will perceive on a perusal of those observations,
the proposal of your Government as it now stands is not one which
could be accepted by Her Majesty's Government, still Her Majesty's
Government are glad to think that the fact of such a proposal having
been made affords an opportunity which, up to the present time, had
not been offered for an amicable comparison of the views entertained
by the respective Governments.
The main principle of that proposal is that a mixed commission
should be appointed for the purpose of determining the limits of those
territorial waters within which, subject to the stipulations of the con-
PERIOD FROM 1871 TO 1905. 911
vention of 1818, the exclusive right of fishing belongs to Great
Britain.
Her Majesty's Government cordially agree with your Government
in believing that a determination of these limits would, whatever may
be the future commercial relations between Canada and the United
States, either in respect of the fishing industry or in regard to the
interchange of other commodities, be extremely desirable, and they
will be found ready to co-operate with your Government in effecting
such a settlement.
They are of opinion that Mr. Bayard was justified in reverting to
the precedent afforded by the negotiations which took place upon this
subject between Great Britain and the United States after the
expiration of the reciprocity treaty of 1854, and they concur with him
in believing that the draft protocol communicated by Mr. Adams in
1866 to the Earl of Clarendon affords a valuable indication of the
lines upon which a negotiation directed to the same points might now
be allowed to proceed.
Mr. Bayard has himself pointed out that its concluding paragraph,
to which Lord Clarendon emphatically objected, is not contained in
the first article of the memorandum now forwarded by him; but he
appears to have lost sight of the fact that the remaining articles of
that memorandum contain stipulations not less open to objection, and
calculated to affect even more disadvantageously the permanent inter-
ests of the Dominion in the fisheries adjacent to its coasts.
There can be no objection on the part of Her Majesty's Government
to the appointment of a mixed commission, whose duty it would be to
consider and report upon the matters referred to in the three first
articles of the draft protocol communicated to the Earl of Clarendon
by Mr. Adams in 1866.
Should a commission instructed to deal with these subjects be ap-
pointed at an early date, the result of its investigations might be
reported to the Governments affected without much loss of time.
Pending the termination of the questions which it would discuss, it
would be indispensable that United States fishing vessels entering
Canadian bays and harbors should govern themselves not only accord-
ing to the terms of the convention of 1818, but by the regulations to
which they, in common with other vessels, are subject while within
such waters.
Her Majesty's Government, however, have no doubt that every
effort will be made to enforce those regulations in such a manner as
to cause the smallest amount of inconvenience to fishing vessels enter-
ing Canadian ports under stress of weather, or for any other legiti-
mate purpose.
But there is another course which Her Majesty's Government are
inclined to propose, and which, in their opinion, would afford a tem-
porary solution of the controversy equally creditable to both parties.
Her Majesty's Government have never been informed of the reasons
which induced the Government of the United States to denounce the
fishery articles of the treaty of Washington, but they have understood
that the adoption of that course was in a great degree the result of a
feeling of disappointment at the Halifax award, under which the
United States were called upon to pay the sum of 1.100,0002., being
the estimated value of the benefits which would accrue to them, in
912
CORRESPONDENCE, ETC.
excess of those which would be derived by Canada and Newfoundland
from the operation of the fishery articles of the treaty.
Her Majesty's Government and the Government of Canada, in
proof of their earnest desire to treat the question in a spirit of lib-
erality and friendship, are now willing to revert for the coming
fishing season, and, if necessary, for a further term, to the condition
of things existing under the treaty of Washington, without any sug-
gestion of pecuniary indemnity.
This .is a proposal which, I trust, will commend itself to your
Government as being based on that spirit of generosity and good will
which should animate two great and kindred nations, whose common
origin, language, and institutions constitute as many bonds of amity
and concord.
I have, etc.,
SALISBURY.
[Inolosnrr No. 1.]
Draft protocol communicated by Mr. Adams to the Earl of Claren-
don in 1866.
[Inclosure No. 2.]
Ad interim arrangement proposed by the United States Government.
ARTICLE I.
Whereas, in the first article of
the convention between the
United States and Great Britain,
concluded and signed in London
on the 20th October, 1818, it was
agreed between the high contract-
ing parties " that the inhabitants
of the said United States shall
have forever, in common with the
subjects of His Britannic Majesty,
the liberty to take fish of every
kind on that part of the southern
coast of Newfoundland which
extends from Cape Ray to the
Rameau Islands, on the western
and northern coast of Newfound-
land, from the said Cape Ray to
the Quirpon Islands, on the
shores of the Magdalen Islands,
and also on the coasts, bays, har-
bors, and creeks, from Mount
Joly on the southern coast of
Labrador, to and through the
Straits of Belleisle, and thence
northwardly indefinitely along
toe coast, without prejudice, how-
ever, to any of the exclusive
rights of the Hudson's Bay Com-
Observations on Mr. Bayard's
memorandum.
The most important departure
in this article from the Protocol
of 1866 is the interpolation of the
stipulation, " that the bays and
harbors from which American
vessels are in future to be ex-
cluded, save for the purposes for
which entrance into bays and har-
bors is permitted by said article,
are hereby agreed to be taken to
be such harbors as are 10, or less
than 10, miles in width, and the
distance of 3 marine miles from
such bays and harbors shall be
measured from a straight line
drawn across the bay or harbor
in the part nearest the entrance
at the first point where the width
does not exceed 10 miles."
This provision would iiwolve a
surrender of fishing rights which
have always been regarded as the
exclusive property of Canada, and
would make common fishing-
grounds of territorial waters
which, by the law of nations, have
been invariably regarded both in
Great Britain and the United
PERIOD FKOM 1871 TO 1905.
913
Eany; and that the American
shermen shall also have liberty
forever to dry and cure fish in
any of the unsettled bays, har-
bors, and creeks of the southern
part of the coast of Newfound-
land, here above described, and
of the coast of Labrador; but so
soon as the same, or any portion
thereof, shall be settled, it shall
not be lawful for the said fisher-
men to dry or cure fish at such
portion so settled without previ-
ous agreement for such purpose
with the inhabitants, proprietors,
or possessors of the ground ; " and
was declared that " the United
States hereby renounce forever
any liberty heretofore enjoyed or
claimed by the inhabitants thereof
to take, dry, or cure fish on or
within 3 marine miles of any of
the coasts, bays, creeks, or harbors
of His Britannic Majesty's do-
minions in America not included
within the above-mentioned
limits: Provided, however, That
the American fishermen shall be
admitted to enter such bays or
harbors for the purpose of shel-
ter, and of repairing damages
therein, of purchasing wood, and
obtaining water, and for no other
purpose whatever. But they shall
be under such restrictions as may
be necessary to prevent their tak-
ing, drying, or curing fish therein,
or in any other manner whatever
abusing the privileges hereby re-
served to them ; " and whereas
differences have arisen in regard
to the extent of the above-men-
tioned renunciation, the Govern-
ment of the United States and Her
Majesty the Queen of Great Brit-
ain, being equally desirous of
avoiding further misunderstand-
ing, agree to appoint a mixed
commission for the following
purposes, namely:
(1) To agree upon and estab-
lish by a series of lines the limits
which shall separate the exclu-
sive from the common right of
States as belonging to the adja-
cent country. In the case, for
instance, of the Baie des Chaleurs,
a peculiarly well-marked and al-
most landlocked indentation of
the Canadian coast, the 10-mile
line would be drawn from points
in the heart of Canadian terri-
tory, and almost 70 miles distance
from the natural entrance or
mouth of the bay. This would
be done in spite of the fact that,
both by Imperial legislation and
by judicial interpretation, this
bay has been declared to form a
part of the territory of Canada.
(See Imperial Statute 14 and 15
Viet., cap. 63; and Mouat v.
McPhee, 5 Sup. Court of Canada
Reports, p. 66.)
The convention with France in
1839, and similar conventions
with other European Powers,
form no precedents for the adop-
tion of a 10-mile limit. Those
conventions were doubtless passed
with a view to the geographical
peculiarities of the coast to which
they related. They had for their
object the definition of boundary-
lines which, owing to the con-
figuration of the coast, perhaps
could not readily be settled by
reference to the law of nations,
and involve other conditions
which are inapplicable to the
territorial waters of Canada.
This is shown by the fact that
in the French convention the
whole of the oyster-beds in Gran-
ville Bay, otherwise called the
Bay of Cancale, the entrance of
which exceeds 10 miles in width,
were regarded as French, and the
enjoyment of them is reserved to
the local fishermen.
A reference to the action of the
United States Government, and
to the admission made by their
statesmen in regard to bays on
92909°— S. Doc. 870, 61-3, vol 3 19
914
CORRESPONDENCE, ETC.
fishing on the coast and in the
adjacent waters of the British
North American Colonies, in con-
formity with the first article of
the convention of 1818, except
that the bays and harbors from
which American fishermen are in
the future to be excluded, save
for the purposes for which en-
trance into bays and harbors is
permitted by said article, are
hereby agreed to be taken to be
such bays and harbors as are 10
or less than 10 miles in width,
and the distance of 3 marine
miles from such bays and harbors
shall be measured from a straight
line drawn across the bay or har-
bor, in the part nearest the en-
trance, at the first point where
the width does not exceed 10
miles, the said lines to be regu-
larly numbered, duly described,
and also clearly marked on charts
prepared in duplicate for the
purpose.
(2) To agree upon and estab-
lish such regulations as may be
necessary and proper to secure
to the fishermen of the United
States the privilege of entering
bays and harbors for the purpose
of shelter and of repairing dam-
ages therein, of purchasing wood,
and of obtaining water, and to
agree upon and establish such re-
strictions as may be necessary to
prevent the abuse of the privi-
lege reserved by said convention
to the fishermen of the United
States.
(3) To agree upon and recom-
mend the penalties to be ad-
judged, and such proceedings and
jurisdiction as may be necessary
to secure a speedy trial and judg-
ment, with as little expense as
possible, for the violators of
rights and the transgressors of
the limits and restrictions which
may be hereby adopted :
the American coasts, strengthens
this view; and the case of the
English ship Grange shows that
the Government of the United
States in 1793 claimed Delaware
Bay as being within territorial
waters.
Mr. Bayard contends that the
rule which he asks to have set up
was adopted by the umpire of
the commission appointed under
the convention of 1853 in the
case of the United States fishing
schooner Washington that it was
by him applied to the Bay of
Fundy, and that it is for this
reason applicable to other Cana-
dian bays.
It is submitted, however, that
as one of the headlands of the
Bay of Fundy is in the territory
of the United States any rules of
international law applicable to
that bay are not therefore equally
applicable to other bays the head-
lands of which are both within
the territory of the same power.
The second paragraph of the
first article does not incorporate
the exact language of the conven-
tion of 1818. For instance, the
words, " and for no other pur-
pose whatever," should be insert-
ed after the mention of the pur-
poses for which vessels may enter
Canadian waters, and after the
words, " as may be necessary to
prevent," should be inserted,
" their taking, drying, or curing
fish therein, or in any other man-
ner abusing the privileges re-
served," etc.
To make the language conform
correctly to the convention of
1818, several other verbal altera-
tions, which need not be enumer-
ated here, would be necessary.
PEKIOD FROM 1871 TO 1905.
915
Provided, however, That the
limits, restrictions, and regula-
tions which may be agreed upon
by the said commission shall not
be final, nor have any effect, until
so jointly confirmed and declared
by the United States and Her
Majesty the Queen of Great Brit-
ain, either by treaty or by laws
mutually acknowledged.
ARTICLE II.
Pending a definitive arrange-
ment on the subject, Her Britan-
nic Majesty's Government agree
to instruct the proper colonial
and other British officers to ab-
stain from seizing or molesting
fishing vessels of the United
States unless they are found
within 3 marine miles of any of
the coasts, bays, creeks, and har-
bors of Her Britannic Majesty's
dominions in America, there fish-
ing, or to have been fishing or
preparing to fish within those
limits, not included within the
limits within which, under the
treaty of 1818 the fishermen of
the United States continue to re-
tain a common right of fishery
with Her Britannic Majesty's
subjects.
ARTICLE III.
For the purpose of executing
Article I of the convention of
1818, the Government of the
United States and the Govern-
ment of Her Britannic Majesty
hereby agree to send each to the
Gulf of St. Lawrence a national
vessel, and also one each to cruise
during the fishing season on the
southern coasts of Nova Scotia.
This article would suspend the
operation of the statutes of Great
Britain and of Canada, and of
the provinces now constituting
Canada, not only as to the vari-
ous offenses connected with fish-
ing, but as to customs, harbors,
and shipping, and would give to
the fishing vessels of the United
States privileges in Canadian
ports which are not enjoyed by
vessels of any other class or of
any other nation. Such vessels
would, for example, be free from
the duty of reporting at the cus-
toms on entering a Canadian har-
bor, and no safeguard could be
adopted to prevent infraction of
the customs laws by any vessel
asserting the character of a fish-
ing vessel of the United States.
Instead of allowing to such ves-
sels merely the restricted privi-
leges reserved by the convention
of 1818, it would give them
greater privileges than are en-
joyed at the present time by any
vessels in any part of the world.
This article would deprive the
courts in Canada of their juris-
diction, and would vest that
jurisdiction in a tribunal not
bound by legal principles, but
clothed with supreme authority
to decide on most important
rights of the Canadian people.
It would submit such rights to
the adjudication of two naval offi-
916
CORRESPONDENCE, ETC.
Whenever a fishing vessel of the
United States shall be seized for
violating the provisions of the
aforesaid convention by fishing or
preparing to fish within 3 marine
miles of any of the coasts, bays,
creeks, and harbors of Her Bri-
tannic Majesty's dominions in-
cluded within the limits within
which fishing is by the terms of
the said convention renounced,
such vessel shall forthwith be re-
ported to the officer in command
of one of the said national vessels,
who, in conjunction with the offi-
cer in command of another of said
vessels of different nationality,
shall hear and examine into the
facts of the case. Should the said
commanding officers be of opinion
that the charge is not sustained,
the vessel shall be released. But
if they should be of opinion that
the vessel should be subjected to
a judicial examination, she shall
forthwith be sent for trial before
the vice-admiralty court at Hali-
fax. If, however, the said com-
manding officers should differ in
opinion, they shall name some
third person to act as umpire be-
tween them, and should they be
unable to agree upon the name of
such third person, they shall each
name a person, and it shall be de-
termined by lot which of the two
persons so named shall be the um-
pire.
ARTICLE IV.
The fishing vessels of the United
States shall have in the estab-
lished ports of entry of Her Bri-
tannic Majesty's dominions in
America the same commercial
privileges as other vessels of the
United States, including the pur-
chase of bait and other supplies;
and such privileges shall be exer-
cers, one of them belonging to a
foreign country, who, if they
should disagree and be unable to
choose an umpire, must refer the
final decision of the great inter-
ests which might be at stake to
some person chosen by lot.
If a vessel charged with infrac-
tion of Canadian fishing rights
should be thought worthy of
being subjected to a " judicial ex-
amination," she would be sent to
the vice-admiralty court at Hali-
fax, but there would be no redress,
no appeal, and no reference to
any tribunal if the naval officers
should think proper to release her.
It should, however, be observed
that the limitation in the second
sentence of this article of the vio-
lations of the convention which
are to render a vessel liable to
seizure could not be accepted by
Her Majesty's Government.
For these reasons, the article
in the form proposed is inadmis-
sible, but Her Majesty's Govern-
ment are not indisposed to agree
to the principle of a joint inquiry
by the naval officers of the two
countries in the first instance, the
vessel to be sent for trial at Hali-
fax if the naval officers do not
agree that she should be released.
They fear, however, that there
would be serious practical diffi-
culties in giving effect to this ar-
rangement, owing to the great
length of coast and the delays
which must in consequence be fre-
quent in securing the presence at
the same time and place of the
naval officers of both Powers.
This article is also open to grave
objection. It proposes to give the
United States fishing vessels the
same commercial privileges as
those to which other vessels of the
United States are entitled, al-
though such privileges are ex-
pressly renounced by the conven-
tion of 1818 on behalf of fishing
PERIOD FROM 1871 TO 1905.
917
cised subject to the same rules and
regulations and payment of the
same port charges as are pre-
scribed for other vessels of the
United States.
ARTICLE V.
The Government of Her Bri-
tannic Majesty agree to release all
United States fishing vessels now
under seizure for failing to re-
port at custom-houses when seek-
ing shelter, repairs, or supplies,
and to refund all fines exacted for
such failure to report. And the
high contracting parties agree to
appoint a joint commission to as-
certain the amount of damage
caused to American fishermen
during the year 1886 by seizure
and detention in violation of the
treaty of 1818, said commission
to make awards therefor to the
parties injured.
ARTICLE VI.
The Government of the United
States and the Government of
Her Britannic Majesty agree to
give concurrent notification and
warning of Canadian customs reg-
ulations, and the United States
agree to admonish its fishermen
to comply with them and co-oper-
ate in securing their enforcement.
vessels, which were thereafter to
be denied the right of access to
Canadian waters for any purpose
whatever, except those of shelter,
repairs, and the purchase of wood
and water. It has frequently
been pointed out that an attempt
was made, during the negotia-
tions which preceded the conven-
tion of 1818, to obtain for the
fishermen of the United States
the right of obtaining bait in
Canadian waters, and that this
attempt was successfully resisted.
In spite of this fact, it is pro-
posed, under this article, to de-
clare that the convention of 1818
gave that privilege, as well as the
privilege of purchasing other sup-
plies in the harbors of the Do-
minion.
By this article it is proposed
to give retrospective effect to the
unjustified interpretation sought
to be placed on the convention by
the last preceding article.
It is assumed, without discus-
sion, that all United States fish-
ing vessels which have been
seized since the expiration of the
treaty of Waslringt;on have been
illegally seized leaving as the
only question still open for con-
sideration the amount of the dam-
ages for which the Canadian au-
thorities are liable.
Such a proposal appears to Her
Majesty's Government quite in-
admissible.
This article calls for no remark.
918 CORRESPONDENCE, ETC.
Sir L. S. Sackville West to Mr. Bayard.
WASHINGTON, April 4, 1887.
(Received April 6.)
SIR : With reference to my note of the 28th of January last, I have
the honor to inclose to you herewith copy of an approved report of a
committee of the privy council of Canada, embodying a report of the
minister of marine and fisheries on the cases of the United States
fishing vessels Pearl Nelson and Everett Steele.
I have, etc.,
L. S. SACKVILLE WEST.
[Inclosure.]
Certified copy of a report of a committee of the honorable the privy
council for Canada, approved by his excellency the governor-gen-
eral in council, on the 15th January, 1887.
The committee of the privy council have had under consideration a
dispatch dated November 22, 1886, from the secretary of state for the
colonies, inclosing letters from Mr. Secretary Bayard, bearing date
19th October, and referring to the cases of the schooners Pearl Nelson
and Everett Steele.
The minister of marine and fisheries, to whom the dispatch and
inclosures were referred, reports that in reply to a telegram from the
secretary of state for the colonies, an order in council, passed on the
18th November last, containing a full statement of facts regarding
the detention of the above-named vessels, was transmitted to Mr.
Stanhope; it will not therefore be necessary to repeat this statement
in the present report.
The minister observes in the first place that the two fishing
schooners Everett Steele and Pearl Nelson were not detained for any
alleged contravention of the treaty of 1818 or the fishery laws of
Canada, but solely for the violation of the customs law. By this law
all vessels of whatever character are required to report to the collector
of customs immediately upon entering port, and are not to break bulk
or land crew or cargo before this is done.
The minister states that the captain of the Everett Steele had on a
previous voyage entered the port of Shelburne on the 25th March,
1886, and after remaining for eight hours had put to sea again with-
out reporting to the customs. For this previous offense he was, upon
entering Shelburne Harbor on the 10th September last, detained and
the facts were reported to the minister of customs at Ottawa. With
these facts was coupled the captain's statement that on the occasion
of the previous offense he had been misled by the deputy harbor-
master, from whom he understood that he would not be obliged to
report unless he remained in the harbor for twenty- four hours. The
minister accepted the statement in excuse and the Everett Steele was
allowed to proceed on her voyage.
The customs laws had been violated; the captain of the Everett
Steele admitted the violation, and for this the usual penalty could
have been legally enforced. It was, however, not enforced, and no
detention of the vessel occurred beyond the time necessary to report
the facts to headquarters and obtain the decision of the minister.
The minister submits that he can not discern in this transaction
any attempt to interfere with the privileges of United States fishing
PERIOD FROM 1871 TO 1905. 919
vessels in Canadian waters or any sufficient case for the protest of
Mr. Bayard.
The minister states that in the case of the Pearl Nelson no question
was raised as to her being a fishing vessel or her enjoyment of any
privileges guarantied by the treaty of 1818. Her captain was
charged with a violation of the customs law, and of that alone, by
having, on the day before reporting to the collector of customs at
Arichat, landed ten of his crew.
This he admitted upon oath. When the facts were reported to the
minister of customs he ordered that the vessel might proceed upon
depositing $200, pending a fuller examination. This was done, and
the fuller examination resulted in establishing the violation of the
law and in finding that the penalty was legally enforceable. The
minister, however, in consideration of the alleged ignorance of the
captain as to what constituted an infraction of the law, ordered the
deposit to be refunded.
In this case there was a clear violation of Canadian law; there
was no lengthened detention of the vessel ; the deposit was ultimately
remitted, and the United States consul-general at Halifax expressed
himself by letter to the minister as highly pleased at the result.
The minister observes that in this case he is at a loss to discover any
well-founded grievance or any attempted denial of or interference
with any privileges guarantied to United States fishermen by the
treaty of 1818.
The minister further observes that the whole argument and protest
of Mr. Bayard appears to proceed upon the assumption that these
two vessels were subjected to unwarrantable interference in that they
were called upon to submit to the requirements of Canadian customs
law, and that this interference was prompted by a desire to curtail
or deny the privileges of resort to Canadian harbors for the purposes
allowed by the treaty of 1818.
It is needless to say that this assumption is entirely incorrect.
Canada has a very large extent of sea-coast with numberless ports,
into which foreign vessels are constantly entering for purposes of
trade. It becomes necessary in the interests of legitimate commerce
that stringent regulations should be made by compulsory conformity
to which illicit traffic should bo prevented. These customs regula-
tions all vessels of all countries are obliged to obey, and these they
do obey, without in any way considering it a hardship. United
States fishing vessels come directly from a foreign and not distant
country, and it is not in the interests of legitimate Canadian com-
merce that they should be allowed access to our ports without the
same strict supervision as is exercised over all other foreign vessels,
otherwise there would be no guaranty against illicit traffic of large
dimensions to the injury of honest trade and the serious diminution
of the Canadian revenue. United States fishing vessels are cheerfully
accorded the right to enter Canadian ports for the purpose of obtain-
ing shelter, repairs, and procuring wood and water ; but in exercising
this right they are not, and can not be, independent of the customs
laws. They have the right to enter for the purposes set forth, but
there is only one legal way in which to enter, and that is by conform-
ity to the customs regulations.
'When Mr. Bayard asserts that Captain Forbes had as much right
to be in Shelburne Harbor seeking shelter and water " as he would
920 . CORRESPONDENCE, ETC.
have had on the high seas carrying on under shelter of the flag of the
United States legitimate commerce," he is undoubtedly right, but
when he declares, as he does in reality, that to compel Captain Forbes,
in Shelburne Harbor, to conform to Canadian customs regulations, or
to punish him for their violation, is a more unwarrantable stretch of
power than " that of seizure on the high seas of a ship unjustly sus-
pected of being a slaver," he makes a statement which carries with it
its own refutation.
Customs regulations are made by each country for the protection
of its own trade and commerce, and are enforced entirely within its
own territorial jurisdiction, while the seizure of a vessel upon the
high seas, except under extraordinary and abnormal circumstances,
is an unjustifiable interference with the free right of navigation
common to all nations.
As to Mr. Bayard's observation that by treatment such as that
experienced by the Everett Steele, "the door of shelter is shut to
American fishermen as a class," the minister expresses his belief that
Mr. Bayard can not have considered the scope of such an assertion
or the inferences which might reasonably be drawn from it.
If a United States fishing vessel enters a Canadian port for shelter,
repairs, or for wood and water, her captain need have no difficulty in
reporting her as having entered for one of those purposes, and the
Everett Steele would have suffered no detention had her captain, on
the 25th March, simply reported his vessel to the collector. As it
was, the vessel was detained for no longer time than was necessary to
obtain the decision of the minister of customs, and the penalty for
which it was liable was not enforced. Surely Mr. Bayard does not
wish to be understood as claiming for United States fishing vessels
total immunity from all customs regulations, or as intimating that if
they can not exercise their privileges unlawfully they will not exer-
cise them at all.
Mr. Bayard complains that the Pearl Nelson, although seeking to
exercise no commercial privileges, was compelled to pay commercial
fees, such as are applicable to trading vessels. In reply the minister
observes that the fees spoken of are not " commercial fees ; " they are
harbor-master's dues, which all vessels making use of legally consti-
tuted harbors are, by law, compelled to pay, and entirely irrespective
of any trading that may be done by the vessel.
The minister observes that no single case has yet been brought to
his notice in which any United States fishing vessel has in any way
been interfered with for exercising any rights guarantied under the
treaty of 1818 to enter Canadian ports for shelter, repairs, wood, or
water; that the Canadian Government would not countenance or
permit any such interference, and that in all cases of this class when
trouble has arisen it has been due to a violation of Canadian customs
law, which demands the simple legal entry of the vessel as soon as it
comes into port.
The committee concurring in the above report recommend that
your excellency be moved to transmit a copy thereof to the right
nonorable the secretary of state for the colonies.
All which is respectfully submitted for your excellency's approval.
JOHN J. McGEE,
Clerk Privy Council.
PERIOD PROM 1871 TO 1905. 921
Special Instructions to Fishery Officers in command of Fisheries' Pro-
tection Vessels.
DEPARTMENT OF FISHERIES, CANADA,
OTTAWA, 16th April, 1887.
SIR: In reference to the letter of this Department, dated 16th
March, 1886, I have to intimate to you that during the present
season, and until otherwise ordered, you will be guided in tne per-
formance of the duties entrusted to you by the instructions contained
in that letter.
I have every reason for believing that these have been executed
with efficiency and firmness, as well as with discretion, and a due
regard to the rights secured by Treaty to foreign fishing vessels re-
sorting to Canadian waters.
I desire, however, to impress upon you that, in carrying out those
instructions and protecting Canadian inshore fisheries, you should be
most careful not to strain the interpretation of the law in the direction
of interference with the rights and privileges remaining to United
States' fishermen in Canadian waters under the Convention of 1818.
To this end, the largest liberty compatible with the full protection of
Canadian interests is to be granted United States' fishing vessels in
obtaining in our waters, shelter, repairs, wood and water. Care
should be taken that while availing themselves of these privilegss,
such vessels do not engage in any illegal practices, and all proper super-
vision necessary to accomplish this object is to be exercised, but it is
not deemed necessary that in order to effect this an armed guard
should be placed on board, or that any reasonable communication
with the shore should be prohibited, after the vessel has duly entered,
unless sufficient reasons appear for the exercise of such precautions.
In places where United States' fishing vessels are accustomed to
come into Canadian waters for shelter only, the Captain of the
Cruiser which may be there is authorized to take entry from and grant
clearance to the masters of such fishing vessels without requiring
them to go on shore for that purpose. Blank forms of entry and
clearance are furnished to the Captains of Cruisers; these, after being
filled in, are to be forwarded by the Captain of the Cruiser to the
Customs Officer of the ports within whose jurisdiction they have been
used. In cases of distress, disaster, need of provisions for the home-
ward voyage, of sickness or death on board a foreign fishing vessel,
all needful facilities are to be granted for relief, and both you and
your officers will be carrying out the wishes of the Department in
courteously and freely giving assistance in such instances.
The above special instructions, while designed with regard to the
fullest recognition of all lawful rights and reasonable liberties to
which United States' fishermen are entitled in Canadian waters, are
not to be construed as authorizing a lax enforcement of the provisions
of the laws for the protection of the Canadian fisheries. Fishing,
preparing to fish, procuring bait, trading or transhipping of cargoes
by United States' fishing vessels within the three-mile limit, are
manifest violations of the Convention of 1818, and of the Imperial
and Canadian Statutes, and in these cases your instructions which
are explicit are to be faithfully followed.
I have, etc.,
(Sd.) GEO. E. FOSTER
Minister of Marine and Fisheries.
922 CORRESPONDENCE, ETC.
Sir L. S. Sackville West to Mr. Bayard.
WASHINGTON, May 17, 1887.
(Received May 18.)
SIR: With reference to your notes of the 1st December, llth No-
vember, and 27th January last, I have the honor to inclose herewith
copies of dispatches from the governor-general of Canada covering
reports of a committee of the privy council respecting the cases of the
United States fishing vessels Mollie Adams, Laura Sayward, Jennie
Seavems, and Sarah H. Prior, which I have received from the Mar-
quis of Salisbury for communication to the United States Govern-
ment.
I have, etc., L. S. SACKVILLE WEST.
[Inclosure No. 1.]
The Marquis of Lansdowne to Sir Henry Holland.
GOVERNMENT HOUSE,
Ottawa, April 12, 1SS7.
SIR: I caused to be referred for the consideration of my Govern-
ment a copy of your dispatch of the 23d February last transmitting
copy of a letter from the foreign office, with its inclosures, respecting
the case of the Sarah H. Prior and requesting to be furnished with a
report upon the alleged conduct of the captain of the Canadian reve-
nue cutter Critic on the occasion referred to, and I have now the honor
to forward herewith a certified copy of an approved report of a
committee of my privy council embodying a statement of Captain
McLaren, of the Critic, with reference to the circumstances com-
plained of.
I have, etc., LANSDOWNE.
[Sub-lnclosure.]
Certified copy of a report of a committee of the honorable the privy
council for Canada, approved by his excellency the governor-
general in council on the 7th April, 1887.
The committee of the privy council have had under consideration
a dispatch dated 23d February, 1887, from the right honorable the
secretary of state for the colonies asking that an investigation may
be made into the conduct of the captain of the Canadian cruiser
Critic as regards the treatment extended to Capt. Thomas McLaugh-
lin, of the U. S. fishing schooner Sarah H. Prior, in the harbor of
Malpeque, Prince Edward Island, in September last.
The minister of marine and fisheries, to whom the dispatch was
referred, submits the following statement of Captain McLaren, of the
Critic, with reference to the circumstances complained of.
On or about the 14th September, 1886, Captain McLaughlin, of
the Sarah H. Prior, came on board the government cruiser Critic at
Malpeque, Prince Edward Island, wanting to know if he would be
infringing on the laws by paying the captain of the schooner John
Ingalls a small sum of money for the recovery of a seine which he
said he had lost a few days before, and which had been picked up by
the said captain.
PEKIOD FROM 1871 TO 1905. 923
I told him that I would not interfere with him if the captain of the
Ingalls chose to run the risk of taking the matter in his own hands,
but that the proper course would be for the captain of the John In-
galls to report the matter to the collector of customs, who was also
receiver of wrecks, and then if he (Captain McLaughlin) could prove
that the seine was his, he could recover it by paying the costs.
Captain McLaughlin then said that as the seine was all torn to pieces,
he would not bother himself about' it.
The captain of the John Ingalls did not come to see me about the
matter, and I heard nothing of it afterwards.
W. MCLAREN.
The committee respectfully advise that your excellency be moved
to forward the foregoing statement of Captain McLaren to the right
honorable the secretary of state for the colonies in answer to his dis-
patch of the 23d February last.
JOHN J. McGEE,
Clerk Privy Council.
[Inclosurc No. 2.]
TJie Marquis of Lansdowne to Sir H. Holland.
GOVERNMENT HOUSE,
Ottawa, April 8, 1887.
SIR: I have the honor to inclose herewith a certified copy of a
privy council order respecting the case of the United States schooner
Mollie Adams, which formed the subject of your predecessor's dis-
patches of the 6th October and 16th December.
I have to express my regret that it should have proved impossible
to supply you with the necessary information bearing upon this case
at an earlier date. Some time was, however, taken in collecting the
evidence embodied in the reports, copies of which accompany the
minute, and the occurrence of the general elections for the federal
parliament to some extent interrupted the course of business in the
public departments and increased the delay.
You will find in the report of my minister of marine and fisheries,
and in the inclosures appended to it, a full and, I think, satisfactory
reply to the whole of the charges made by the Government of the
United States against the conduct of the Canadian officials concerned
in the matter of the Mollie Adams.
I would venture to draw your especial attention to the concluding
passages of the minister's report, in which he earnestly deprecates
the manner in which in this, as well as in other cases in which dis-
putes have arisen under conditions of a similar character, the Govern-
ment of the United States has not hesitated to adopt without any in-
quiry, and to support with the whole weight of its authority, ex parte
charges entirely unconfirmed by collateral evidence, and unaccom-
panied by any official attestation.
In view of the fact that owing to the action of the Government of
the United States in terminating the fishery clauses of the treaty of
Washington, a large body of American fishermen have suddenly
found themselves excluded from waters to which they had for many
924 CORRESPONDENCE, ETC.
years past resorted without molestation, and that the duty of thus
excluding them has been thrown upon a newly constituted force of
fishery police, necessarily without experience of the difficult and
delicate duties which it is called upon to perform, there would be no
cause for surprise if occasional cases of hardship or of overzealous
action upon the part of the local authorities engaged in protecting
the interests of the Dominion were to be brought to light. It is the
earnest desire of my government to guard against the occurrence of
any such cases, to deal in a spirit of generosity and forbearance with
United States fishermen resorting to Canadian waters in the exercise
of their lawful rights, and to take effectual measures for preventing
arbitrary or uncalled-for interference on the parts of its officials with
the privileges allowed to foreign fishermen under the terms of the
convention of 1818.
The difficulty of acting in such a spirit must, however, be greatly
increased by the course which has been pursued in this and in numer-
ous other cases already brought to your notice in founding not only
the most urgent remonstrances, but the most violent and offensive
charges and the most unjust imputation of motives upon complaints
such as that put forward by the captain of the Mollie Adams, a per-
son so illiterate that he appears not to have been qualified to make
out the ordinary entry papers on his arrival in a Canadian port, but
whose statements, many of which bear upon the face of them evi-
dence of their untrustworthiness, appear to have been accepted in
globo without question by the Secretary of State.
You will, I cannot help thinking, concur in the opinion expressed
in the minister's report that such hasty and indiscriminate accusa-
tions can only have the effect of prejudicing and embittering public
feeling in both countries, and of retarding the prospect of a reason-
able settlement of the differences which have unfortunately arisen be-
tween them upon these subjects.
I have, etc., LANSDOWNE.
[Sub-inclosure.]
Report of a committee of the honorable the privy council for Canada,
approved ~by his excellency the governor-general in council on the
31st March, 1887.
The committee of the privy council have had under consideration a
dispatch dated 6th October, 1886, from the right honorable the secre-
tary of state for the colonies, transmitting a copy of a letter from the
foreign office inclosing copy of a dispatch from Her Majesty's min-
ister at Washington with a note from the Secretary of State of the
United States, calling attention to the alleged refusal of the collector
of customs at Port Mulgrave, Nova Scotia, to allow the master of the
United States fishing vessel Mollie Adams to purchase barrels to hold
a supply of water for the return voyage, and also a further dispatch
dated 16th December, 1886, referring to the same schooner, the Mollie
Adams, and her alleged treatment at Malpeque, Prince Edward
Island, and Port Medway, Nova Scotia, and requesting an early re-
port on the circumstances of this case.
The minister of marine and fisheries to whom the said dispatches
and inclosures were referred submits the following report thereon:
Mr. Bayard's note of the 10th September calls attention to the
PERIOD FEOM 1871 TO 1905. 925
alleged refusal of the collector of customs at Port Mulgrave, Nova
Scotia, to allow the master of the Mollie Adams to purchase barrels
to hold a supply of water for which the vessel had put into port.
The report of the subcollector of customs at Port Mulgrave, which is
hereto annexed, and which he expresses his readiness to verify upon
oath, shows that the Mollie Adams was fitted out with a water-tank
which was reported as leaking, that the collector offered to borrow
barrels for carrying the water on board if the tank were made tight,
and even offered to send a man on board to perform this work; that
while the captain of the schooner and he were in conversation one of
the crew brought the information that the cook had succeeded in
calking the tank.
That thereupon the subcollector borrowed the seven barrels, with
which the crew supplied \vater for their vessel ; that the barrels were
returned to the collector, and the captain appeared well pleased with
what had been done. The good wrill of the subcollector is also shown
in his giving the men a letter to his superior officer, in explanation of
the circumstances, and recommended that the purchase of barrels be
allowed, a step which was rendered unnecessary by the arrangements
later made.
The subcollector in answer to his inquiry as to what had become of
the water barrels in use on board the vessel was informed that they
had been filled with mackerel. This answer goes to prove that Mr.
Murray was acting strictly within the scope of his duty in ascertain-
ing that the barrels sought to be purchased were not to be used for an
illicit purpose.
The colonial secretary's dispatch of the 16th December, 1886, refers
to the same schooner, the Mollie Adams, and her alledged treatment
at Malpeque, Prince Edward Island, and Port Medway, Nova Scotia.
In this case Mr. Bayard's representations are based solely upon a
letter written to him by the captain of the vessel under date the 12th
November, which is unsupported by any other evidence, and upon the
strength of which Mr. Bayard proceeds to charge the Canadian
authorities with " churlish and inhospitable treatment," and with
exhibiting a coldness and rudeness of conduct at variance with the
hospitable feelings of common humanity.
The minister of marine and fisheries submits, as a complete reply to
the allegations contained in Captain Jacob's letter — (1) The state-
ment of the collector of customs at Malpeque, Prince Edward Island,
(2) the statement of Captain McLaren, of the Canadian cruiser
Critic, and (3) the report of the collector of customs at Port Medway.
The two former officers, although giving their reports without con-
cert, agree upon the main points at issue, and the statements of all
three are clear, straightforward, and reasonable, and in marked
contrast to the sensational and improbable story related by Captain
Jacobs.
Captain Jacobs declares that on or about the 26th September last,
during very heavy weather, he fell in with the bark Neskilita, which
had run on a bar at Malpeque Harbor and become a total wreck.
That he took off the crew, seventeen in number, at 12 o'clock at night,
carried them to his own vessel, fed them for three days, and then gave
them $60 with which to pay their fare home, and provisions to last
them on their way. He states that the captain of the Canadian
cruiser Critic came on board, was told the circumstances, but offered
926 CORRESPONDENCE, ETC.
no assistance, and that no one on shore would take the wrecked men
unless he became responsible for the payment of their board.
The collector at Malpeque in his report says that early on the morn-
ing after the wreck, so soon as the news reached him he repaired to
the harbor to see what assistance could be given ; that he then met the
captain of the Neskilita in company with Captain Jacobs, and was
told by the latter that the crew of the wrecked vessel were comfortably
cared for on his vessel, and that nothing more could be done.
Captain McLaren, of the Critic, says that he at once visited the
Mollie Adams and was told by Captain Jacobs that " he had made all
arrangements for the crew."
The collector and Captain McLaren agree in stating from informa-
tion gathered by them that the crew of the wrecked vessel came to
shore in their own boat unassisted, and after boarding a Nova Scotia
vessel were invited by Captain Jacobs, with whom the captain of the
Neskilita had beforetime sailed out of Gloucester, to go on board the
Mollie Adams.
The collector was asked by the captain of the Neskilita if he would
assist himself and crew to their homes, and answered that he could not
unless assured that they themselves were without means for that
purpose, in which case he would have to telegraph to Ottawa for in-
structions. The captain of the Neskilita made no further application.
The minister observes that it is the practice of the Dominion Gov-
ernment to assist shipwrecked and destitute sailors, in certain cases
of great hardship, to their destination or homes, but in all cases it
must be clear that they are destitute, and the application for assist-
ance must be made to Ottawa through the collector of customs. Had
such an application been made by the captain of the Neskilita it would
have received due consideration.
In answer to the charge that board could not be obtained for the
wrecked crew, it is stated by Captain McLaren that the crew of a
United States vessel wrecked about the same time found no difficulty
in getting board and that the captain of the Neskilita had himself
arranged to board with the collector, who expressed surprise at his
failing to come.
Captain Jacobs complains that he was not allowed to land from his
vessel the material saved from the wreck. To this charge the col-
lector replies that he received no intimation of any wrecked material
except the crew's luggage being on board the Mollie Adams, and
Captain Jacobs made no request to him regarding the landing of
wrecked material, and that he (the collector) gave all assistance in
his power to the captain of the Neskilita in saving material from the
wreck.
It was subsequently discovered that Captain Jacobs had on board
the Mollie Adams a seine from the wrecked vessel belonging to the
underwriters, for taking care of which, when obliged to give it up,
Captain Jacobs claimed and was paid the sum of $10.
Captain Jacobs states that he was put to a loss of ten days' fishing
by his detention with the Neskilita. The reports of both the collector
and Captain McLaren agree in giving a very different and sufficient
reason, viz, very bad weather and consequent inability to fish, a disa-
bility experienced by the whole fishing fleet at that time anchored in
Malpeque.
PERIOD FROM 1871 TO 1905. 927
The second complaint of Mr. Bayard is that when Captain Jacobs,
experiencing a dearth of provisions as a consequence of his charitable
action, shortly after put into Port Medway and asked to purchase
half a barrel of flour and enough provisions to take him home, the
collector, " with full knowledge of all the circumstances," refused
the request and threatened him with seizure if he bought any tiling
whatever.
The collector's report, hereto annexed, shows that Captain Jacobs
entered his port on the 25th October, fully one month after the occur-
rence at Malpeque ; that in entering he made affirmation that he called
for shelter and repairs, and for no "other purpose whatever;" that
just before leaving he asked permission to purchase half a barrel of
flour, and when asked by the collector if he was without provisions,
he replied that he was not, adding that he had " a good supply of all
kinds of provisions except flour, and enough of that to last him home
unless he met some unusual delay."
Under these circumstances the collector did not give the permission
asked, but he made no threat of seizure of vessel or imposition of
penalty.
Mr. Bayard supports the complaint of Captain Jacobs that he was
charged fees for entering his vessel at Canadian customs, and that
these fees varied at different ports, being, for instance, 15 cents at
Souris, Prince Edward Island, 50 cents at Port Mulgrave, and 50
cents at Port Hood, at which latter port Captain Jacobs sent his
brother to enter for him, but was informed that his entry was illegal
and that he, as master, must himself enter his vessel. He complains
of being obliged to pay twice, once for his brother's entry and once
for his own.
The minister states with regard to this that no collector of customs
in Canada is authorized to charge a fee for entering or clearing a ves-
sel, nor for any papers necessary to do this. Sailing masters, however,
who are unused to the law, or not competent to make out their
papers, are in the habit of employing persons as customs brokers to
make out their papers for them, and for this service these brokers
charge a small fee. These are not Government officers nor under Gov-
ernment control, and their services are voluntarily paid for by those
who employ them. The small fees of which Captain Jacobs com-
plains need not have been paid by him if he had been willing or
qualified to make out his own papers. That he was not so willing or
qualified and that he employed a broker to make out his papers is
conclusively shown by the following telegram received from the col-
lector at Port Hood, the charges at which port Mr. Secretary Bayard
so vigorously denounces.
[Copies of telegrams.]
" Deputy minister of fisheries to collector. Port Hood, Nova Scotia.
" OTTAWA, March 16, 1887.
" Did you during last season exact from Captain Solomon Jacobs,
of schooner Mollie Adams, any charge for reporting, or other service
at Port Hood ? If so, please state amount received and for what."
928 CORRESPONDENCE, ETC.
" Collector, Port Hood, to deputy minister of fisheries.
" POKT HOOD, NOVA SCOTIA, March 16, 1887.
" Solomon Jacobs, of schooner Mollie Adams, sent one of his crew
to report 13th September last ; he made a report. I told him, however,
that the report should be made by the master. A few hours after-
wards Jacobs himself came and reported. They got Dan. McLennan,
who is now in Halifax, to write out the reports. I believe he charged
them 25 cents each for brokerage. No other charges whatever were
made."
The minister states that he has no doubt that the other payments
at customs ports alluded to by Mr. Bayard were made for services
rendered Captain Jacobs by persons making out his entry papers,
and which he does not appear to have been qualified to do himself.
With reference to Mr. Bayard's reiteration of Captain Jacobs's
complaint that in different harbors he was obliged to pay a different
scale of dues, the minister of marine submits that in Canada there are
distinct classes of harbors. Some are under the control of a commis-
sion appointed wholly or in part by the Government, under whose
management improvements are made and which regulates, subject to
the approval of Government, the harbor dues which are to be paid by
all vessels entering such ports and enjoying the advantages therein
provided.
Others are natural harbors in great part unimproved, whose limits
are generally defined by order in council and for which a harbor-mas-
ter is appointed by Government, to whom all vessels entering pay cer-
tain nominal harbor-master's fees, which are regulated by a general
act of parliament, and which constitute a fund out of which the
harbor-master is paid a small salary for his services in maintaining
order within the harbor. The port of St. John, New Brunswick, is
entirely under municipal control and has its own stated and uniform
scale of charges.
Harbor dues are paid whenever a vessel enters a port which is
under a commission, and harbor-master's fees are paid only twice per
calendar year by vessels entering ports not under a commission.
Sydney belongs to the first class, and at that port Captain Jacobs
paid the legal harbor dues. Malpeque and Port Mulgrave belong to
the second class, and in those Captain Jacobs paid the legal harbor-
master's fees, which, for a vessel like his, of from 100 to 200 tons, is
$1.50. That he paid only $1 in Malpeque is due to an error of the
harbor master, who should have charged him $1.50, and by this error
Captain Jacobs saved 50 cents, of which he should not complain. For
full information as to the legal status of Canadian harbors Mr. Bay-
ard is respectfully referred to the Canadian Statutes, 36 Viet., cap.
63; 42 Viet., cap. 30; and 38 Viet, cap. 30.
The minister of marine and fisheries believes that after a thorough
perusal of these Mr. Bayard will not cite the payments made by
Captain Jacobs as evidences of the " irresponsible and different treat-
ment to which he was subjected in the several ports he visited, the
only common feature of which seems to have been a surly hostility."
The minister submits that, from a careful consideration of all the
circumstances, he can not resist the conviction that, in this whole
PEEIOD FKOM 1871 TO 1905. 929
transaction, Captain Jacobs was more concerned in making up a case
against the Canadian authorities than in unobtrusively performing
any necessary acts of hospitality, and that his version of the matter,
as sent to Mr. Bayard, is utterly unreliable.
The Neskilita was wrecked off a Canadian harbor; the crew, it is
stated, came ashore in their own boat and unassisted; a Canadian
collector was at hand offering his services, and within easy appeal to
the Government, and the captain of a Canadian cruiser was in port;
yet, Captain Jacobs would appear, by his own story, to have taken
complete charge of the captain, to have ignored all proffers of asgis-
tance, and to have constituted himself the sole guardian and spokes-
man of the wrecked crew, to have been in short the one sole man
actuated by kindly, humane feelings among a horde of cruel and
unsympathetic Canadians.
For any exercise of good-will and assistance to Canadian seamen in
distress by either foreign or native vessels, the Canadian Government
can not but feel deeply grateful, and stands ready, as has been its
invariable custom, to recognize suitably and reward such services,
and when Captain Jacobs performs any necessary act of charitable
help towards Canadian seamen in distress without the obvious aim of
manufacturing an international grievance therefrom, he will not
prove an exception to Canada's generous treatment.
The minister observes that in a dispatch to the governor-general,
dated the 27th December, 1886, and in reference to this same case, Mr.
Stanhope writes : " With reference to my dispatch of the 16th instant
relating to the case of the United States fishing vessel Mollie Adams,
and referring to the general complaints made on the part of the
United States Government of the treatment of American fishing ves-
sels in Canadian ports, I think it right to observe that whilst Her
Majestv's Government do not assume the correctness of any allega-
tions without first having obtained the explanations of the Dominion
Government, they rely confidently upon your ministers taking every
care that Her Majesty's Government are not placed in a position of
being obliged to defend any acts of questionable justice or propriety."
The minister, while thanking Her Majesty's Government for the
assurance conveyed that it will not " assume the correctness of any
allegations without having obtained the explanations of the Dominion
Government," and whilst assuring Her Majesty's Government that
every possible care has been and will be taken that no "acts of ques-
tionable justice or propriety " are committed by the officers of the
Dominion Government, can not refrain from calling attention to the
loose, unreliable, and unsatisfactory nature of much of the informa-
tion supplied to the United States Government, and upon which very
grave charges are made, and very strong language officially used
against the Canadian authorities. For instance, as stated in a pre-
vious part of this report, the strong representations made by Mr.
Bayard in the case of the Mollie Adams are based solely upon a letter
written by Captain Jacobs, not even accompanied by an official attes-
tation, and not supported by a tittle of corroborative evidence.
It does not appear that any attempt was made to investigate the
truth of this story, unreasonable and improbable as it must have
appeared, as the letter written by Captain Jacobs bears date, the 12th
November, while Mr. Bayard's note based thereupon is dated the 1st
92909"— S. Doc. 870, 61-3, vol 3 30
930 CORRESPONDENCE, ETC.
December. It would seem only fitting that in so grave a matter, in-
volving alike the good name of a friendly country and the continued
subsistence of previous amicable relations, great care should have been
taken to avoid the use of such strong and even hostile language, based
upon the unsupported statements of an interested skipper, and one
whose reputation for straightforward conduct does not appear to be
above reproach, if credence is to be given to the attached description,
taken from the Boston Advertiser, of a transaction said to have oc-
curred in his native city, and in which Captain Jacobs appears to
hare played no enviable part.
Numerous other instances of like flimsy and unreliable foundations
for charges made against the Canadian authorities in regard to their
treatment of United States fishing vessels can not have failed to
attract the attention of Her Majesty's Government in the dispatches
which from time to time have reached it from the United States.
The master of a United States fishing vessel, imperfectly under-
standing the provisions of the convention of 1818, the requirements
of the Canadian customs law, or the regulations of Canadian ports,
having, perhaps, an exaggerated idea of his supposed rights, or, it
may be. desirous of evading all restrictions, is brought to book by offi-
cers of the law. He feels aggrieved and angry, and straightway con-
veys his supposed grievance to the authorities at Washington. There-
upon, without seeming allowance for the possibility of the statement
being inaccurate or the narrator unfriendly, and with apparently no
attempt to investigate the truth of the statement, it is made the basis
of strong and unfriendly charges against the Canadian Government.
Canada has suffered from such unfounded representations, and
against the course adopted by the United States in this respect the
minister enters his most earnest protest.
As an additional instance of the manner in which evidence is gath-
ered and used to the prejudice of the Canadian case the minister calls
attention to a communication submitted to the Senate of the United
States by Mr. Edmunds, and which forms printed Document No. 54
of the Forty-ninth Congress, second session. This is the report of
Mr. Spencer F. Baird, United States Fish Commissioner, containing
a list, with particulars, of sixty-eight New England fishing vessels
which had, as he alleged, " been subjected to treatment which neither
the treaty of 1818 nor the principles of international law would seem
to warrant."
The minister observes that it will appear from a perusal of this
report that these sixty-eight cases were made up by Mr. Baird's officer
from answers of owners, agents, or masters of fishing vessels in re-
sponse to a circular letter sent to all New England fishing vessels,
inviting them to forward statements of any interference with their
operations by the Canadian Government.
Not a single statement was investigated by the Commissioner or
any one acting for him, and not a single statement is accompanied by
the affidavit of the person making it, or by corroborative evidence of
'Any kind. In most instances, neither date, locality, nor name of Cana-
dian officer is given, and an analysis of many "of the cases affords
prima facie evidence that they embody no real cause for complaint;
yet Mr. Baird and his officer, Mr. Earle, vouched for the correctness
and entire reliability of these sixty-eight statements. They were
gravely submitted to the Senate as trustworthy evidence of Canadian
PEEIOD FROM 1871 TO 1905. 931
aggression, and became, no doubt, powerful factors in influencing
Congressional legislation hostile to Canadian and British interests.
The minister, while inviting attention to and strongly deprecating
such action as above recited on the part of the United States, takes
occasion, at the same time, to express his entire confidence that the
rights of Canada will not thereby be in any degree prejudiced in the
eyes of Her Majesty's Government.
The committee concur in the foregoing report of the minister of
marine and fisheries, and they recommend that your Excellency be
moved to transmit a copy of this minute, if approved, to the right
honorable the secretary of state for the colonies.
All which is respectfully submitted for your excellency's approval.
JOHN J. McGEE,
Clerk Privy Council Canada.
[Inclosure No. 3.]
Mr. Murray, jr., to Mr. Tilton.
PORT MULGRAVE, NOVA SCOTIA,
November 1, 1886.
SIR : Referring to your letter of 28th October, I beg to say that on
Monday, the 30th August, the schooner Mollie Adams, of Gloucester,
Mass., Solomon Jacobs, master, passed two customs ports in the Straits
of Canso before coming to my port. In fact, he sent his boat (dory)
with his brother and a Captain Campbell to me to see if I would
allow him to get seven empty barrels to put water in. I asked the
men what they did with their water barrels. They told me they had
filled them with mackerel, and that their tank leaked. I told the men
that I had no po\ver to allow them to purchase barrels, but I would
borrow barrels to fill with water if they would caulk the tank. I
also gave them a letter to take up to my superior, asking him to allow
Captain Jacobs to purchase the barrels. They went on board, told
their story, and the captain anchored his vessel and came ashore to see
me. I offered to send a man on board to caulk the tank. In the mean
time one of the crew came on shore and said that the cook had suc-
ceeded in tightening the tank; that it held salt water. I then bor-
rowed the seven barrels to fill the water, which they did, and I re-
turned the barrels again, and the captain was well pleased, as he
appeared so.
If this is not satisfactory I can make oath to the foregoing.
I am, etc.,
DAVID MURRAY, Jr.,
Subcollector Customs.
[Sub-inclosure.]
Mr. McNutt to Mr. Tilton.
MALPEQUE, PRINCE EDWARD ISLAND, January 7, 1887.
SIR : I have the honor to acknowledge the receipt of your letter of
the 29th December, covering statements made by Captain Jacobs,
and now adjoin statement of facts as personally known by and com-
municated to me of wreck of the NeskiUta on Malpeque Bar, on Sun-
day night, the 26th September last. Information reached me early
932 CORRESPONDENCE, ETC.
on the following morning, and I at once proceeded to the harbor to
see what assistance couloT be given in the case, when I met Captain
Thornborne, of the Neskilita, and Captain Jacobs in company, and
was informed by the latter that the crew were on board his vessel,
and assured that everything that could be done for their comfort had
been done. I was also given to understand that during the night the
crew had abandoned their schooner and come in the harbor unassisted
in their seine-boat, and boarded a Nova Scotia schooner lying in the
harbor, and were the next morning invited by Captain Jacobs to
make his vessel their home. I was also informed by Captain Mc-
Laren, commander of the Canadian cruiser Critic, that he also ten-
dered his assistance, and was rather haughtily received by Captain
Jacobs with the information that the crew were aboard his vessel and
that he (Captain McLaren) did not think the case demanded him to
force his assistance.
With regard to the wrecked material aboard of Captain Jacobs's
vessel, I have only to say that this is the first intimation I have ever
had of such material being aboard his vessel, except the crew's lug-
gage, and that assuredly Captain Jacobs did not, so far as I can
recollect, make any request of me whatever with regard to the landing
of wrecked material.
With reference to the saving of material from the wrecked vessel,
I would wish to say that I rendered the captain of the Nesldlita all
necessary assistance in procuring suitable men to do that work (and
who were thus employed by him), and although I am aware that
Captain Jacobs did accompany the captain of the Nesldlita to the
wreck, I can not say in what capacity or under what authority he
did so.
So far as the assertion that the crew received the means to take them
home from Captain Jacobs is concerned, I know nothing positive,
except that he (Captain Jacobs) asked me if the Canadian Govern-
ment would remunerate him for his attention to the crew, and feeling
that I had nothing to do with him, I merely replied that I did not
know. But I may say that shortly after the wreck occurred the cap-
tain of the Neskilita asked me if 1 could render them (the crew) any
assistance in getting home, and I answered that I could not unless I
was assured that they themselves were without the means of doing so,
and that in any case I would have to telegraph to the department at
Ottawa for instructions. Here the matter stopped, the captain mak-
ing no further application.
With regard to the delay of ten days, said to be occasioned (Captain
Jacobs) by reason of the shipwrecked crew, I may say that during the
ten or fourteen days following on the said shipwreck we had an almost
continuous period of stormy weather, with the exception of a couple
or so of fine days, which were taken advantage of by the fishing fleet,
and one at least by Captain Jacobs himself, but by all reports received
by me resulting in little or no catches of mackerel.
These, so far as I can now recall them to memory, are the true facts
in the case.
I am, etc., JAMES McNurr,
PERIOD FROM 1871 TO 1905. 933
[Inclosure No. 4.]
Mr. McLaren to Mr. Tilton.
GEORGETOWN, PRIXCE EDWARD ISLAND, January 6, 1887.
DEAR SIR: Yours of the 29th ultimo to hand. In reference to the
first part of the statement made by Captain Jacobs, I would say that
he may have been off Malpeque at the time the wreck occurred, but I
do not think he took the crew off; as, so far as I could learn at the
time, they came ashore in one of their own seine-boats and went first
to a Nova Scotia vessel and afterwards on board the Mollie Adams.
On the morning after the wreck occurred I went on board the
Mollie Adams, and was immediately told by Captain Jacobs that he
had made all arrangements for the crew, and having secured a team,
was going with the captain of the Neskilita to the custom-house to
note a protest. As I could see by the conduct of both captains that
I was not wanted, I returned to my own vessel. Afterwards, in the
course of a conversation with the captain of the Neskilita, he in-
formed me that he had sailed out of Gloucester for some time, and in
the course of that time with Captain Jacobs.
As to the statement that he could not get a boarding-house for his
crew, I think it is false, as the crew of one of the American vessels
wrecked about the same time had no difficulty in getting the people
to board them. Once while talking with Mr. McNutt, the collector
of customs at Malpeque, he mentioned that the captain of the Nes-
kilita had engaged to board at his place, and he expressed his sur-
prise that he was not coming. Both Captain Jacobs and the captain
of the Neskilita were committing a fraud in trying to get off with
the seine of the wrecked vessel, as it belonged to the underwriters;
and I think that it was the prospect of getting Captain Jacobs to get
away with the seine that prevented the captain of the Neskilita from
asking me for assistance. However, Captain Jacobs, on finding he
could not carry out his fraud, presented a claim of $10 for the salvage
of the seine and gear, which sum was paid him by Mr. Lemuel Poole,
Charlottetown, who was acting on behalf of the underwriters. It
may be possible that Captain Jacobs staid at Malpeque after I sailed,
but, if so, it was his own fault, as the crew of the Neskilita had gone
home before then.
It is my opinion that Captain Jacobs need not have lost one hour
of time, for during the time the Neskilita 's crew were on board his
vessel the fleet, with the exception of one or two small vessels, was
anchored in Malpeque, and unable to put to sea owing to the heavy
sea on the bar.
After the occurrence of the wreck, about the 20th September, Cap-
tain Jacobs cruised in the North Bay and on the Cape Breton coast,
and not until the 24th October was he reported as passing through
Canso bound home.
As to the paying of the crew's passage home, I can say nothing,
except that if he did he did it voluntarily, as the captain of the
Neskilita could have sent his crew home without his assistance.
Yours, etc.,
WM. MCLAREN.
934 CORRESPONDENCE, ETC.
[Inclosure No. 5.j
Mr. Letsom to the deputy minister of fisheries, Ottawa.
CUSTOM-HOUSE, Port Medway, January 6, 1887.
SIR: In reply to your letter of the 30th ultimo, inclosing extract
of statement made by Captain S. Jacobs, of the schooner Mollie
Adams, I have to say that on the 25th October last, Captain Solomon
Jacobs, of schooner Mollie Adams, reported at this office. His report
is now before me, in which he swears that he called here for shelter
and repairs and for no other purpose. After making his report and
when about leaving the office, Captain Jacobs asked if I would allow
him to purchase a half barrel of flour. I asked him if he was with-
out provisions, and he replied that he was not, adding that he had a
good supply of all kinds of provisions except flour, and enough of
that to last him home unless he met with some unusual delay. I
then told him that under the circumstances I could not give him per-
mission to purchase the flour; but no threat was made about seizing
his vessel or imposing any penalty whatever.
The above I am quite willing to substantiate under oath, and can
produce a witness to the truth of the statement.
I am, etc.,
E. E. LETSOM,
Collector.
{ Inclosure No. 6.]
The Marquis of Lansdowne to Sir H. Holland.
GOVERNMENT HOUSE,
Ottawa, April 2, 1887.
SIR : With reference to Mr. Stanhope's dispatch of the 16th Decem-
ber last, transmitting a copy of a letter from the foreign office, with
its inclosures, respecting the alleged improper conduct of authorities
in the Dominion in dealing with the United States fishing vessels
Laura Sayward and Jennie Seavems, and requesting to be furnished
with a report on these cases for communication to the United States
Government, I have the honor to forward herewith a copy of an ap-
proved minute of the privy council of Canada, embodying a report of
my minister of marine and fisheries on the subject.
I have much pleasure in calling your attention to the penultimate
paragraph of that report, from which you will observe that it will,
in the opinion of my Government, be possible, in cases like that of the
Jennie Seavems, where a foreign fishing vessel has entered a Cana-
dian harbor for a lawful purpose and in the pursuance of her treaty
rights, to exercise, the necessary supervision over the conduct of her
master and crew, and to guard against infractions of the customs law
and other statutes binding upon foreign vessels while in Canadian
waters, without placing an armed guard on board or preventing rea-
sonable communication with the shore.
My advisers are, in regard to such matters, fully prepared to
recognize that a difference should be made between the treatment of
vessels bona -fide entering a Canadian harbor for shelter or repair, or
to obtain wood and water, and that of other vessels of the same class
entering such harbors ostensibly for a lawful purpose, but really with
the intention of breaking the law.
I have, etc., LANSDOWNE.
PERIOD FROM 1871 TO 1905. 935
[Sub-inclosure.]
Report of a committee of the honorable the privy council for Canada
approved ~by his excellency the governor-general in council on the
23d March, 1887.
The committee of the privy council have had under consideration
a dispatch dated the 16th December, 188G, from the right honorable
the secretary of state for the Colonies, transmitting a copy of a letter
from the foreign office covering a copy of a dispatch from Her Maj-
esty's minister at Washington inclosing notes which he has received
from Mr. Bayard, United States Secretary of State, protesting
against the conduct of the Dominion authorities in their dealings
with the United States fishing vessels Laura Sayward and Jennie
Seaverns, and requesting to be furnished with a report on the subject
for communication to the Government of the United States.
The minister of marine and fisheries, to whom the dispatch and in-
closures were referred for immediate report, observes that Mr. Bayard
takes exception to the " inhospitable and inhuman conduct " of the
collector of customs at the port of Shelburne, Nova Scotia, in refusing
to allow Captain Rose of the Laura Sayward, to buy sufficient food to
last himself and crew on their homeward voyage, and complains of
the action of the collector in i; unnecessarily retaining " the papers of
the vessel. Mr. Bayard bases his representation upon the annexed
declaration made by Captain Rose, but supported by no other testi-
mony.
The minister states that immediately on the receipt of the dispatch
above mentioned a copy of the charges was forwarded to the collector
at the port of Shelburne, and his statement in reply thereto is an-
nexed.
The minister believes that Collector Atwood's statement is a reason-
able and sufficient answer to the allegations made by the captain of
the Say ward, and leaves no ground of justification for the strong
language used by Mr. Bayard in his note to Sir L. Sackville West.
The minister further observes that, with reference to the Jennie
Seaverns, Mr. Bayard complains of the conduct of Captain Quigley,
of the Terror, in preventing the captain of the Jennie Seavcrns from
landing to visit his relations in Liverpool. Nova Scotia, and in for-
bidding his relatives to visit him on board his vessel, and in placing
a guard upon the Seaverns while she was in port. These complaints
are based upon the affidavit of Captain Tupper, of the Seavcrns, a
copy of which is attached. The statements of Captain Quigley, and
his first officer, Bennett, are submitted in reply, and seem to afford
ample proof that no violence or injustice was done to the fishing
schooner.
The minister is of the opinion that the captain of the Jennie Sea-
verns has nothing to complain of. He came in solely for shelter, and
this was not denied him. He was requested to report at the customs,
with which request he, upon his own evidence, willingly complied.
The other precautions taken by Captain Quigley were simply to in-
sure that, while shelter was being had, the provisions of the conven-
tion and of the customs law were not violated.
The minister, however, while assured that the vessel in question
suffered no deprivation of or interference with its rights as defined
by the convention of 1818, is of opinion that, in pursuance of the
936 CORRESPONDENCE, ETC.
spirit of uniform kindly interpretation of the law, -which it has been
the constant aim of the government of Canada to exemplify in its
dealings with United States fishermen, it is possible for the officers in
charge of the cruisers to efficiently guard the rights of Canadian citi-
zens and enforce the provisions of the law without in such cases as
the above finding it necessary to place an armed guard on board the
fishing vessel, or preventing what may be deemed reasonable com-
munication with the shore.
The committee, concurring, in the report of the minister of marine
and fisheries, recommend that your excellency be moved to transmit
a copy of this minute to the right honorable the secretary of state for
the colonies for the purpose or communication to the Government of
the United States.
All which is respectfully submitted for your excellency's approval.
JOHN J. McGEE,
Clerk Privy Council Canada.
[Sub-in closure 1.]
Deposition of Medeo Rose.
I, Medeo Rose, master of schooner Laura Sayward, of Gloucester,
being duly sworn, do depose and say : That on Saturday, the 2d Oc-
tober, being then on Western Bank, on a fishing trip, and being short
of provisions, we hove up anchor and started for home.
The wind was blowing almost a gale from the northwest, and,
being almost dead ahead, we made slow progress on our voyage home.
On Tuesday, the 5th October, we made Shelburne, Nova Scotia, and
arrived in that harbor about 8 p. m. on that day, short of provisions,
water, and oil to burn. On Wednesday I sailed for the inner harbor
of Shelburne, arriving at the town about 4 p. m. On going ashore I
found the custom-house closed, and hunted up the collector and en-
tered my vessel, and asked permission from him to buy 7 pounds of
sugar, 3 pounds of coffee, and 1 bushel of potatoes, and 2 pounds
butter or lard or pork, and oil enough to last us home, and was
refused.
I stated to him my situation, short of provisions, and a voyage of
250 miles before, and pleaded with him for this slight privilege, but it
was of no avail. I then visited the American consul and asked his
assistance, and found him powerless to aid me in this matter. The
collector of customs held my papers until the next morning, although
I asked for them as soon as I found I could not buy any provisions, say
about one and a half hours after I entered, but he refused to give
them to me until the next morning. Immediately on receiving my
papers on Thursday morning I started for home, arriving on Sunday.
I think the treatment I received harsh and cruel, driving myself and
crew to sea with a scant supply of provisions, we having but a little
flour and water, and liable to be buffeted for days before reaching
home.
MEDEO ROSE.
MASSACHUSETTS, ESSEX, ss:
Personally appeared Medeo Rose and made oath to the truth of the
above statement before me.
[SEAL.] AARON PARSONS.
Notary Public.
OCTOBER 13, 1886.
PERIOD FROM 1871 TO 1905. 937
[Sub-inclosure 2.]
Mr. Atwood to Mr. Johnson.
CUSTOM-HOUSE, SHELBURNE, January 5, 1887.
SIR : With reference to the statement by Medeo Rose, master of the
schooner Laura Sayward, I beg to say that in many particulars it is
not true and is very unjust. The custom-house was not closed, as
stated. Office hours are supposed to be from 9 a. m. to 4 p. m., but
masters of vessels, American fishermen particularly, are allowed to
report their vessels inward and outward, and obtain clearances at any
hour between 6 a. m. and 11 p. m. (Sundays excepted), and the office
is always open. On the 6th October last I left at 4 p. m., and went to
an agricultural exhibition, not an eighth of a mile distant — say a
three minutes' walk — and left word at the office to tell any one who
called wThere I could be found. I had been on the grounds about
fifteen minutes when Captain Rose put in an appearance, and I at
once came to the office, and he reported his vessel, stated that he was
from the bank bound home, and came in to fill water, and wanted
provisions, as follows, viz: 7 pounds of sugar, 3 pounds of coffee, 1
bushel of potatoes, and 2 pounds of butter; this was all. I took a
memorandum and attached to his inward report, and oil is not men-
tioned ; stated that he had plenty of flour, fish, and other provisions
sufficient for voyage home.
I gave him permission to fill water at once ; but as the treaty made
no provision for purchase of supplies, I would telegraph the depart-
ment at Ottawa, and no doubt it would be allowed. Captain Rose
expressed his willingness to remain until a reply was received. He
called at the office next morning (Thursday) at 6.30 a. m., and finding
I had not received a reply said, as the wind was fair and a good breeze,
he would not wait longer and would take a clearance, which I gave
him. I told him an answer to telegram would probably be received
by 10 a. m. I did not consider it a case of actual distress by any
means, as by the master's own statement he had plenty of other pro-
visions, and all that he really and actually needed was to fill water.
The statement that I held his papers, although he asked for them,
etc., and that I refused to give them to him until next morning, is all
false. He did not ask further until next morning, when he got his
clearance. The statement that the treatment he received was harsh
and driving him to sea having little w^ater and flour, etc., is all untrue,
as what I have already stated will prove. Captain Medeo Rose was
here with his vessel on the 23d November last, and entered his vessel
and obtained clearance at 8 in the evening ; was here again on the 27th
November and remained five days for repairs, and nothing was said
by him of the " inhuman conduct " or " harsh treatment " on the part
of the collector towards him.
The above is a plain statement of the facts, and many of the state-
ments can be corroborated by the American consul of this port if
referred to him.
I am, etc., W. W. ATWOOD,
Collector.
938 CORRESPONDENCE, ETC.
[Inclosure No. 7.]
Deposition of Joseph Tupper.
I, Joseph Tupper, master of the schooner Jennie Seaverns, of
Gloucester, being duly sworn, do depose and say : That on Thursday,
the 28th October, while on my passage home from a fishing trip, the
wind blowing a gale -from southeast and a heavy sea running, I was
obliged to enter the harbor of Liverpool, Nova Scotia, for shelter,
Immediately on coming to anchor was boarded by Captain Quigley,
of Canadian cruiser Terror, who ordered me to go inshore at once
and report at the custom-house, to wyhich I replied that such was my
intention. He gave me permission to take two men in the boat with
me, but they must remain in the boat and must not step on shore. I
asked Captain Quigley if I could, after entering, visit some of my
relations who resided in Liverpool and whom I had not seen for
many years. This privilege was denied me. After entering, having
returned to my vessel, some of my relatives came to see me off.
When Captain Quigley saw their boat alongside of my vessel he sent
an officer and boat's crew, who ordered them away, and at sundown
he placed an armed guard on board our vessel, who remained on board
all night, and was taken off just before we sailed in the morning.
I complied with the Canadian laws, and had no intention or desire
to violate them in any way, but to be made a prisoner on board my
own vessel, and treated like a suspicious character, grates harshly
upon the feelings of an American seaman, and I protest against such
treatment, and respectfully ask from my own Government protection
from such unjust, unfriendly, and arbitrary treatment.
JOSEPH TUPPER.
MASSACHUSETTS, ESSEX, ss:
Personally appeared Joseph Tupper, and made oath to the truth
of the above statement before me,
AARON PARSONS,
Notary Public.
NOVEMBER 4, 1886.
[Inclosnre No. 8.]
Mr. Quigley to Major Tilt on.
NEWCASTLE, January 19, 1887.
SIR: In reference to the American schooner Jennie Seaverns of
Gloucester, I find she arrived on Thursday, the 28th October, as
stated in his complaint, at Liverpool, Nova Scotia, and after she
anchored I sent Chief Officer Bennett on board with instructions,
telling him what the law was, so that he would not do anything
through ignorance of it, and get his vessel in trouble. These instruc-
tions were to report his vessel at the customs before sailing, and to
take two of his crew and boat with him when he did go for that pur-
pose, but the rest of his crew were not to go on shore, and that after
he reported no person from his vessel was to go on shore, as he got
all he put in for, viz., shelter; and he reported his vessel putting in
for that purpose and for no other; not for the purpose of letting his
crew on shore.
PERIOD FROM 1871 TO 1905. 939
The boat that was ordered from his vessel was from shore, and was
not allowed alongside of these vessels, as it gave the crews a chance
to get ashore with them, or to smuggle provisions alongside, so they
were ordered off in all cases. (See chief officer's statement regarding
the men who rowed the captain on shore.)
I never prevented the men who went ashore with the masters of
vessels from landing and going with the masters to the custom-house
if they wished, nor gave instructions to prevent them.
I placed two watchmen on board this vessel, as I did in all other
cases, to prevent them from breaking the law in any respect through
the night, and they were taken off in the morning before he sailed.
It is not true that I boarded this vessel as stated. I never spoke to
him. There were two other American seiners in at the same time and
were treated in the same way, less the watchmen, which were not
required in their case, as they were close to me and I could see what
was done on board them at all times from my vessel. These are the
facts.
I have, etc.,
THOMAS QUIGLEY.
[Inclosure No. 9.]
Deposition of Albert Bennett.
I, Albert Bennett, late first officer of the Dominion cutter Terror,
Captain Quigley, remember boarding the American seiner Jennie
Seavems, of Gloucester, United States, at the port of Liverpool. Nova
Scotia, on the 28th October last past; boarded her, ordered Captain
Tupper to report to the customs at Liverpool aforesaid, which he did,
taking with him two men in his boat. Never told Captain Tupper
not to allow his men to leave his boat while on shore ; further, Captain
Tupper, to the best of my knowledge and belief, never intimated to
me that he had friends or relatives that he wished to visit in Liver-
pool, Nova Scotia.
Seeing a boat alongside, I went on board and ordered them away.
Captain Tupper told me he did not know the visitors, and further,
did not wish them on board his vessel.
Further, during the time the Jennie Seaverns was in the harbor of
Liverpool, Nova Scotia, Captain Quigley never was on board her, I
boarding her and carrying out his instructions to me.
ALBERT BENNETT,
Late First Officer Cutter Terror.
HOPEWELL CAPE, N. B., January IJf, 1887.
Mr. Bayard to Mr. Phelps.
No. 625.] DEPARTMENT OF STATE,
Washington, May 23, 1887.
SIR: I transmit herewith for your information copies of recent
correspondence relative to the case of the Sarah H. Prior, one of the
fishery cases.
I am, etc., T. F. BAYARD.
940 CORRESPONDENCE, ETC.
[Inclosure No. 1.]
Mr. Prior to Mr. Bayard.
BOSTON, May 13, 1887.
DEAR SIR: I received the inclosed letter to-day and thought best
to forward it to you for your perusal and advice. It is in regard to
the seine belonging to the schooner Sarah H. Prior. The seine was
lost off Malpeque and picked up by a British schooner and brought
into Malpeque, where the Prior was lying. They refused to Deliver
it up after the captain of the Prior had offered to pay salvage on it.
I sent you a sworn affidavit last November of the facts in the case.
Please let me know when you think it best to enter a claim for da,m-
age. Hoping to hear from you at your earliest convenience,
I remain etc.,
P. H. PRIOR.
P. S. — Please let me know what steps to take in regard to answer-
ing the inclosed letter.
P. H. P.
[Sub-inclosure.]
SOURIS, PRINCE EDWARD ISLAND,
May 2, 1887.
Messrs. P. H. PRIOR & SON,
Boston, Mass.:
SIRS: In October last Captain Wolf of the British schooner John
M. Inglis delivered to me a wrecked seine which he had picked up at
sea. It had the name " Sarah H. Prior " printed somewhere about
it. As receiver of wrecks for this district I made the necessary ad-
vertisement here and at Ottawa, where the head department is, but
before I could ascertain who the owner was winter had set in and
nothing could be done.
I had the seine nicely salted and secured for the winter. It is
now in as good condition as when it was brought here. I have now
to ask you if you are the real owners of this property, and if so, what
disposition you wish me to make of it, whether you wish to pay the
salvage, $25, and some other charges, and have the property shipped
to you by steamer or have it kept here until your vessel calls. Some-
thing must be done with it soon. I have had it overhauled this
spring, and it appears in good condition, except of course the tearing.
The purseline, etc., are with it, and it should be worth more than the
charges against it.'
Will you kindly advise me by return mail what your wishes are in
the matter, and oblige,
Yours, etc., M. J. FOLEY,
Receiver of Wrecks.
PERIOD FROM 1871 TO 1905. 941
[Inclosure No. 2.]
Mr. Bayard to Mr. Prior
DEPARTMENT OF STATE,
Washington, May £1, 1887.
SIR: Your letter of the 13th instant in relation to the claim pre-
ferred by you because of the alleged refusal of the commander of the
Canadian cruiser Critic to permit the restoration to your fishing ves-
sel, the Sarah H. Prior, ot a valuable seine lost at sea and carried
into Malpeque by a Canadian vessel, has been received.
As you were informed, by my letter of January 28 last, your
original complaint of December 28, 1886, with the accompanying
affidavit of the captain and crew of the Sarah H. Prior purporting to
set forth the facts of the case, was laid before Her Britannic Maj-
esty's minister at this capital. My note and Sir Lionel West's ac-
knowledgement thereof are printed on pages 7 and 8 of the inclosed
executive document.
I am now in receipt of Sir Lionel's reply, covering an approved
report of a committee of the Dominion privy council, of which a copy
is inclosed for your information.
The question appears to have been one of compliance with the
usual wreckage and salvage laws, and wholly disconnected from in-
ternational right and duty.
The sworn statements of the master of the Sarah H. Prior as to the
refusal of the commander of the Critic to permit the restoration of
the seine are controverted.
It is alleged that, on the regular course of proceedings for the re-
covery of his property through the receiver of wrecks being pointed
out to Captain McLaughlin, the latter "then said that as the seine
was all torn to pieces, he would- not bother himself about it."
It appears, from the letter addressed to you, May 2, by Mr. M. J.
Foley, receiver of wrecks at Souris, Prince Edward Island, and which
you send to me for my information, that the seine in question, after
proper care during the winter, is still at your disposal on payment of
the adjudged salvage, $25. This sum, it may be noted, is that which
Captain McLaughlin offered in the first instance to pay to the mas-
ter of the John Ingalls.
Inasmuch as the rights of salvage are private rights, to be settled in
judicial forums, and as no obstacle now exists, or appears to have at
any time existed, to the recovery of your lost property by institution
of a suit in the usual form, I am unable to discover any connection
between the subject-matter of your complaint and any treaty of the
United States with Great Britain, or ground for Government inter-
position.
Wreck-master Foley's letter is herewith returned to you, a copy
being retained on file with your letter.
I am, etc., T. F. BAYARD.
942 CORRESPONDENCE, ETC.
Mr. Bayard to Sir Charles Tupper.
[Personal and unofficial.]
WASHINGTON, D. C., May 31, 1S87.
MY DEAR SIR CHARLES:
The delay in writing you has been unavoidable.
In the very short interview afforded by your visit I referred to the
embarrassment arising out of the gradual emancipation of Canada
from the control of the mother country, and the consequent assump-
tion by that community of attributes of autonomous and separate
sovereignty, not, however, distinct from the Empire of Great Britain.
The awkwardness of this imperfectly-developed sovereignty is felt
most strongly by the United States, which can not have formal treaty
relations with Canada, except indirectly and as a colonial dependency
of the British Crown, and nothing could better illustrate the embar-
rassment arising from this amorphous condition of things than the
volumes of correspondence published severally this year, relating to
the fisheries, by the United States, Great Britain, and the Govern-
ment of the Dominion.
The time lost in this circumlocution, although often most regret-
table, was the least part of the difficulty, and the indirectness of
appeal and reply was the most serious feature, ending, as it did, very
unsatisfactorily.
It is evident that the commercial intercourse between the inhab-
itants of Canada and those of the United States has grown into too
vast "proportions to be exposed much longer to this wordy triangular
duel, and more direct and responsible methods should be resorted to.
Your own able, earnest, and patriotic services in the Government
and Parliament of the Dominion are well known, and afford ample
proof of your comprehension of the resources, rapidly-increasing in-
terests, and needs of British North America.
On the other hand, I believe I am animated by an equal desire to
serve my own country, and trust to do it worthily.
The immediate difficulty to be settled is found in the treaty of 1818
between the United States and Great Britain, which has been questio
vexata ever since it was concluded, and to-day is suffered to interfere
with and seriously embarrass the good understanding of both countries
in the important commercial relations and interests which have come
into being since its ratification, and for the adjustment of which it
is wholly inadequate, as has been unhappily proved by the events of
the past two years.
I am confident we both seek to attain a just and permanent settle-
ment, and there is but one way to procure it, and that is by a straight-
forward treatment on a liberal and statesman-like plan of the entire
commercial relations of the two countries.
I say commercial, because I do not propose to include, however in-
directly, or by any amendment, however partial or oblique, the
political relations of Canada and the United States, nor to affect the
legislative independence of either country.
When you were here I was prepared to send my reply to the " Ob-
servations" upon my proposal for a settlement (of November 15
last), which were communicated to Mr, Phelps by Lord Salisbury
PERIOD FROM 1871 TO 1905. 943
on March 24, and also to express my views of his lordship's alterna-
tive proposition.
Your visit and invitation to negotiate here was entirely welcome,
and of this I endeavored to impress you.
Conversation with the President has confirmed these views, and
now it remains to give them practical effect.
Great Britain being the only treaty-making party to deal with the
United States, the envoys of that Government alone are authorized
to speak in her behalf and create her obligations.
I presume you will be personally constituted a plenipotentiary of
Great Britain to arrange here, with whomsoever may be selected to
represent the United States, terms of arrangement for a modus vi-
vendi to meet present emergencies and also a permanent plan to avoid
all future disputes.
It appears to me that as matters now stand the colony of New-
foundland ought to be represented and included, for a single arrange-
ment should suffice to regulate all the joint and several interests
involved. I should, therefore, be informed speedily through the
proper channel as to the authorization and appointment by the Impe-
rial Government of such representatives.
The gravity of the present condition of affairs between our two
countries demands entire frankness.
I feel we stand at " the parting of the ways." In one direction I
can see a well-assured, steady, healthful relationship, devoid of petty
jealousies, and filled with the fruits of a prosperity arising out of a
friendship cemented by mutual interests and enduring because based
upon justice; on the other, a career of embittered rivalries, staining
our long frontier with the hues of hostility, in which victory means
the destruction of an adjacent prosperity without gain to the preva-
lent party — a mutual physical and moral deterioration which ought
to be abhorrent to patriots on both sides, and which I am sure no two
men will exert themselves more to prevent than the parties to this
unofficial correspondence.
As an intelligent observer of the current of popular sentiment in the
United States, you can not have failed to note that the disputed inter-
pretation of the treaty of 1818, and the action of the Canadian officials
towards American fishing vessels during the past season, has awak-
ened a great deal of feeling.
It behooves those who are charged with the safe conduct of the
honor and interests of the respective countries by every means in
their power sedulously to remove all causes of difference.
The roundabout manner in which the correspondence on the fish-
eries has been necessarily (perhaps) conducted has brought us into
the new fishing season, and the period of possible friction is at hand,
and this admonishes us that prompt action is needed.
I am prepared, therefore, to meet the authorized agents of Great
Britain at this capital at the earliest possible day, and enter upon
negotiations for a settlement of all differences.
The magnitude of the interests involved, and the far-reaching and
disastrous consequences of any irritating and unfriendly action, will,
I trust, present themselves to those in whose jurisdiction the fisheries
944 CORRESPONDENCE, ETC.
lie, and cause a wise abstention from vexatious enforcement of dis-
puted powers.
Awaiting your reply, I am, very truly, yours,
T. F. BAYARD.
Sir CHARLES TUPPER, etc.,
Ottawa, Canada.
Sir Charles T upper to Mr. Bayard.
[Personal and unofficial.]
OTTAWA, June , 1887. (Received June 10, 2 p. m.)
MY DEAR MR. BAYARD :
I have great pleasure in receiving your letter of May 31st, evincing
as it does the importance which you attach to an amicable adjustment
of the fisheries question, and the maintenance of the cordial com-
mercial relations between the United States and Canada under which
such vast and mutually beneficial have grown up.
I entirely concur in your statement that " We both seek to attain
a just and permanent settlement, and that there is but one way to
procure it, and that is by a straightforward treatment, on a liberal
and statesman-like plan, of the entire commercial relations of the
two countries."
I note particularly your suggestions that as the interests of Canada
are so immediately concerned, Her Majesty's Government should be
invited to depute a Canadian statesman to negotiate with you " a
modus vivendi to meet present emergencies and also a permanent plan
to avoid all disputes," and I feel no doubt that a negotiation thus
undertaken would greatly increase the prospects of a satisfactory
solution.
I say this, not because I believe that there has been any disposition
on the part of the British Government to postpone Canadian inter-
ests to its own, or to retard by needless delay a settlement desired by
and advantageous to the people of Canada and of the United States,
but because I have no doubt that direct personal communications will
save valuable time and render each side better able to comprehend
the needs and the position of the other.
I am greatly flattered by your kind personal allusion to myself.
The selection of the persons who might be deputed to act as com-
missioners would, however, as you are aware, rest with Her Majesty's
Government.
Our experience has been to the effect that the selection has in such
cases, as far as it concerned the choice of the representatives of the
Dominion, been made with careful regard to public feeling in this
country.
I have thought it my duty and also the most effectual manner of
giving effect to your suggestion, to make known to Lord Lansdowne
the purport of my correspondence with you. He is strongly desirous
of facilitating a settlement and will at once bring the matter before
the secretary of state with an expression of his hope that no time
will be lost in taking steps for establishing, by means of personal
PERIOD FROM 1871 TO 1905. 945
communications with your Government, a modus vivendi such as you
have described, and also for arriving at an understanding in regard
to a lasting adjustment of our commercial relations.
In the earnest hope that your proposal for the settlement of this
vexed question may result at an early day in a solution satisfactory
and beneficial to both countries,
I remain, yours faithfully, CHARLES TUPPER.
Mr. Bayard to Mr. Phelps.
No. 659 'bis.'] DEPARTMENT OF STATE,
Washington, July 12, 1887.
SIR: On March 24th last the Marquis of Salisbury made reply to
your note to him of December 3, 1886, and communicated the views of
the Government of the United States, under date of the 15th of
November preceding, for the settlement of the fishery disputes.
This reply of his lordship and the " observations " of the Canadian
authorities upon the proposal for an arrangement were conveyed in
Mr. White's dispatch of March 20, and received at this Department
April llth last, when it had my immediate consideration.
An answer was prepared forthwith to the note of his lordship as
well as to the " observations," and for your information I now inclose
two copies thereof, which for convenience and intelligibility have been
printed as a third parallel column to the original proposal and the
Canadian " observations."
This document would have gone forward to you in continuance of
the negotiation so commenced between yourself and the British for-
eign office, but I was indirectly made aware that the Canadian Gov-
ernment, to whom, as it appears, all communications from this Gov-
ernment to that of Great Britain, touching the matters under consid-
eration between the two Governments in relation to the fishery ques-
tion under the treaty of 1818 had been invariably submitted before
reply, sought to make an informal communication to this Department
on the subject.
Thus informed, and desiring to lend every aid in my power at this
juncture toward a practical settlement of serious and long-standing
difficulties, I delayed my response to Mr. White's dispatch of March
30, and on May 21 Sir Charles Tupper, the Canadian minister of
finance, called upon me at this department, introduced by the British
minister at this capital.
The object of this visit was to discuss informally the present condi-
tion and prospects of commercial relations between the United States
and the Dominion of Canada, especially in connection with the fish-
eries and the commercial questions involved.
The visit here of Sir Charles Tupper, on behalf of the Canadian
Government, was received with cordiality, and expressions were ex-
changed of a mutual desire for the settlement of all existing difficul-
ties, and for an increased freedom of commercial intercourse between
the United States and Canada.
In consequence of the statements made by Sir Charles Tupper on
the occasion referred to, I wrote him a personal and unofficial letter
92G09*— S. Doc. 870, 61~3, -90! 3 £1
946 CORRESPONDENCE, ETC.
on the 31st of May, and received on June 10th his reply, and copies
of this correspondence were duly sent to you.
Yesterday Sir Lionel West handed me, and without comment, the
following copy of a telegram to him from Lord Salisbury :
"If Secretary of State will formally propose the appointment of
commission as suggested by him in his correspondence with Sir
Charles Tupper, Her Majesty's Government will agree with great
pleasure.
" SALISBURY."
and I have just telegraphed you to the following effect :
" PHELPS, Minister, London:
"Sir Lionel West handed to me yesterday telegram from Lord
Salisbury agreeing to the negotiation suggested by me informally in
correspondence with Sir Charles Tupper, after his visit to this capital,
and requesting me to make formal proposal, which will be forwarded
to you at once.
"BAYARD."
By reference to my personal letter to you of May 31, which inclosed
a copy of my letter to Sir Charles Tupper of that date, you will per-
ceive that I did not propose the appointment of a " commission," but
used the following language in reference to the proposed negotia-
tion:
" Your visit and invitation to negotiate here was entirely welcome,
and of this I endeavored to impress you.
" Conversation with the President has confirmed these views, and
now it remains to give them practical effect.
"Great Britain being the onlv treaty-making party to deal with
the United States, the envoys of that Government alone are author-
ized to speak in her behalf and create her obligations.
" I presume you will be personally constituted a plenipotentiary
of Great Britain to arrange here, with whomsoever may be selected
to represent the United States, terms of arrangement for a modus
vivendi to meet present emergencies, and also a permanent plan to
avoid all future disputes.
" It appears to me that as matters now stand the colony of New-
foundland ought to be represented and included, for a single arrange-
ment should suffice to regulate all the joint and several interests
involved.
" I should, therefore, be informed speedily, through the proper
channels, as to the authorization and appointment by the Imperial
Government of such representatives.
*******
" I am prepared, therefore, to meet the authorized agents of Great
Britain at this capital at the earliest possible day, and enter upon
negotiations for a settlement of all differences."
By reason of the action of the Senate on April 15, 1886, in regard
to the recommendation of the President for the appointment of a
joint commission to take into consideration the entire question of fish-
ing rights of the two Governments and their citizens on the coast of
British North America, the formation of a joint commission was not
again proposed by me, but in the discharge of his constitutional func-
tions negotiations with a view to a settlement were not abandoned,
PERIOD FROM 1871 TO 1905. 947
but have been proceeded with by this Department under the direction
of the President.
The number of plenipotentiaries to be employed on either side does
not seem to be material to the object in view. The treaty of 1854 com-
prehended the same class of questions substantially, and as I have be-
fore remarked in my correspondence with you, was negotiated by the
Earl of Elgin, at that time governor-general of Canada, and Mr.
William L. Marcy, then the Secretary of State of the United States.
By reference also to our prior treaties with Great Britain it will be
found that the number of plenipotentiaries employed on either side
varied and was frequently unequal.
The " mixed commission " referred to in the first article of the ad
interim proposal submitted by you in December last to the British
foreign office, was to be authorized by Congress before appointed, and
only under legislative authority could they be so employed and pro-
vision made for their compensation.
It is not, therefore, considered essential or important for the ac-
complishment of the negotiation now contemplated to provide for the
appointment of a commission, eo nomine.
The questions to be considered and settled are not so complicated in
number or nature as to require a large numerical force of negotiators,
such as was apparently deemed expedient in 1871.
It is regarded by the President as of the highest importance that a
distinct and friendly understanding should without delay be arrived
at between the United States and Great Britain, touching the extent
of the rights which belong respectively to the citizens of the United
States and the subjects of Her Britannic Majesty in relation to the
fisheries on the coasts of the British Possessions in North America,
and as to any other questions which affect the trade and commercial
relations between the United States and those possessions.
You are, therefore, instructed to propose to Her Majesty's principal
secretary of state for foreign affairs the appointment of an envoy ex-
traordinary and minister plenipotentiary, to meet in the city of
Washington a minister plenipotentiary of the Government of the
United States, duly authorized by the respective Governments to treat
of and discuss the mode of settling all questions which have arisen out
of the fisheries on the coasts of British North America, and all other
questions affecting the relations between the United States and Her
Britannic Majesty's possessions in North America.
Should it be found necessary or expedient to increase the number of
the representatives of either party in the proposed negotiation, it can
be done, and notice be given to that effect.
Believing this proposal to be in accord with late expressions of
Her Majesty's Government, indicating a cordial and sincere desire to
arrive at an amicable, permanent, and just settlement of the important
question above referred to, I transmit it to you for presentation, in
the full confidence of its prompt acceptance by Her Majesty's Gov-
ernment, and I have the honor to be, Sir,
Your obedient servant,
T. F. BAYARD.
948
CORRESPONDENCE, ETC.
[Inclosure No. 1.]
FISHERIES ARRANGEMENT PROPOSED BY UNITED STATES, WITH " OBSERVATIONS "
OF BRITISH GOVERNMENT AND REPLY OF GOVERNMENT OF UNITED STATES.
Ad interim Arrangement pro-
posed by the United States,
Government.
AETICLB I.
WHEREAS, In the 1st Ar-
ticle of the Convention be-
tween the United States
and Great Britain, concluded
and signed in London on the
20th October, 1818, it was
agreed between the High
Contracting Parties " that
the inhabitants of the said
United States shall have
forever, ia common with the
subjects of His Britannic
Majesty, the liberty to take
fish of every kind on that
part of the southern coast
of Newfoundland which ex-
tends from Cape Ray to the
Rameau Islands, on the
western and northern coast
of Newfoundland, from the
said Cape Ray to the Quir-
pon Islands, on the shores
of the Magdalen Islands, and
also on the coasts, bays,
harbours, and creeks, from
Mount Joly on the South-
ern coast of Labrador, to
and through the Straits on
Belleisle, and thence north-
wardly indefinitely along the
coast, without prejudice,
however, to any of the ex-
clusive rights of the Hud-
eon's Bay Company ; and
that the American fisher-
men shall also have liberty
for ever to dry and cure
fish In any of the unsettled
bays, harbours, and creeks
of the southern part of the
coast of Newfoundland, here
above described, and of the
coast of Labrador ; but so
soon as the same, or any
portion thereof, shall be set-
tled, it shall not be lawful
for the said fishermen to
dry or cure fish at such
portions so" settled without
previous agreement for such
purpose with the inhabit-
ants, proprietors, or pos-
sessors of the ground ; " and
was declared that " the Unit-
ed States hereby renounce
for ever any liberty hereto-
fore enjoyed or claimed by
the inhabitants thereof to
take, dry, or cure fish on or
within 3 marine miles of
any of the coasts, bays,
creeks, or harbours of His
Britannic Majesty's domin-
ions in America not included
within the above-mentioned
limits ; provided, however,
that the American fisher-
men shall be admitted to en-
ter such bays or harbours
for the purpose of shelter,
and of repairing: damages
therein, of purchasing wood,
and obtaining water, and
for no other purpose what-
ever. But they shall be
under such restrictions as
Observations on Mr. Bayard's
Memorandum.
THE most Important de-
parture in this Article from
the Protocol of 1866 is the
interpolation of the stipula-
tion, " that the bays and
harbours from which Ameri-
can vessels are in future to
be excluded, save for the
purposes for which entrance
Into bays and harbours is
permitted by said Article,
are hereby agreed to be
taken to be such harbours
as are 10, or less than 10,
miles in width, and the dis-
tance of 3 marine miles
from such bays and har-
bours shall be measured
from a straight line drawn
across the bay or harbour in
the part nearest the en-
trance at the first point
where the width does not
exceed 10 miles."
This provision would in-
volve a surrender of fishing
rights which have always
been regarded as the exclu-
sive property of Canada,
and would make common
fishing grounds of the ter-
ritorial waters which, by
the law of nations, have
been invariably regarded
both in Great Britain and
the United States as belong-
ing to the adjacent country.
In the case, for instance, of
the Bale des Chaleurs, a pe-
culiarly well-marked and al-
most land-locked indentation
of the Canadian coast, the
10-mile line would be drawn
from points in the heart of
Canadian territory, and al-
most 70 miles distance from
the natural entrance or
mouth of the bay. This
would be done in spite of
the fact that, both by Impe-
rial legislation and by ju-
dicial interpretation, this
bay has been declared to
form a part of the territory
of Canada. (See Imperial
Statute 14 & 15 Viet, cap.
63 ; and " Mouat v. Mc-
Phee," 5 Sup. Court of Can-
ada Reports, p. 66.)
The Convention with
France in 1839, and similar
Conventions with other Eu-
ropean Powers, form no pre-
cedents for the adoption of
a 10-mile limit. Those Con-
ventions were doubtless
passed with a view to the
geographical peculiarities of
the coast to which they re-
lated. They had for their
object the definition of the
boundary-lines which, owing
to the configuration of the
coast, perhaps could not
readily be settled by refer-
ence to the law of nations,
and involve other conditions
which are inapplicable to
Reply to " Observations " on
Proposal.
A prior agreement be-
tween the two Governments
as to the proper definition
of the " bays and harbors "
from which American fisher-
men are hereafter to be
excluded, would not only
facilitate the labors of the
proposed Commission, by
materially assisting it in
defining such bays and har-
bors, but would give to its
action a finality that could
not otherwise be expected.
The width of ten miles waa
proposed, not only because
it had been followed in
Conventions between many
other powers, but also be-
cause it was deemed reason-
able and just in the present
case ; this Government rec-
ognizing the fact that,
while it might have claimed
a width of six miles as a
basis of settlement, fishing
within bays and harbors
only slightly wider would
be confined to areas so nar-
row as to render it prac-
tically valueless and almost
necessarily expose the fisher-
men to constant danger of
carrying their operations
into forbidden waters. A
width of more than ten
miles would give room for
safe fishing more than three
miles from either shore, and
thus prevent the constant
disputes which this Govern-
ment's proposal, following
the Conventions above no-
ticed, was designed to avert.
It was not known to in-
volve the surrender of rights
" which has always been re-
garded as the exclusive
property of Canada," or to
" make common fishing
ground of territorial waters,
which, by the law of na-
tions, have been invariably
regarded, both in Great
Britain ajid the United
States, as belonging to the
adjacent country."
The case of the Bale des
Chaleurs, the only case cited
in this relation, does not
appear to sustain the " ob-
servations " above quoted.
From 1854 until 1866 Amer-
ican fishermen were per-
mitted free access to all
territorial waters of the
provinces under treaty stip-
ulations. From 1866 until
1870 they enjoyed similar
access under special licenses
issued by the Canadian Gov-
ernment. In 1870 the li-
cense system was discon-
tinued, and under date of
May 14 of that year a draft
of special instructions to
officers in command of the
marine police, to protect the
PERIOD FKOM 1811 TO 1905.
949
may be necessary to prevent
their taking, drying, or cur-
Ing fish therein, or in any
other manner whatever
abusing the privileges here-
by reserved to them ; " and
whereas differences have
arisen in regard to the ex-
tent of the above-mentioned
renunciation, the Govern-
ment of the United States
and Her Majesty the Queen
of Great Britain, being
equally desirous of avoiding
further misunderstanding,
agree to appoint a Mixed
Commission for the follow-
ing purposes, namely :
1. To agree upon and es-
tablish by a series of lines
the limits which shall sepa-
rate the exclusive from the
common right of fishing on
the coast and in the adja-
cent waters of the British
North American Colonies, in
conformity with the 1st Ar-
ticle of the Convention of
1818, except that the bays
and harbours from which
American fishermen are in
the future to be excluded,
Bare for the purposes for
which entrance into the bays
and harbours Is permitted by
said Article, are hereby
agreed to be taken to be
such bays and harbours as
are 10 or less than 10 miles
In width, and the distance of
3 marine miles from such
bays and harbours shall be
measured from a straight
line drawn across the bay or
harbour, in the part nearest
the entrance, at the first
point where the width does
not exceed 10 miles, the said
lines to be regularly num-
bered, duly described, and
also clearly marked on
Charts prepared in duplicate
for the purpose.
2. To agree upon and es-
tablish such Regulations as
may be necessary and proper
to secure to the fishermen of
the United States the privi-
lege of entering bays and
harbours for the purpose of
shelter and repairing dam-
ages therein, of purchasing
wood, and of obtaining
water, and to agree upon and
establish such restrictions as
may be necessary to prevent
the abuse of the privilege re-
served by said Convention to
the fishermen of the United
States.
3. To agree upon and rec-
ommend the penalties to be
adjudged, and such proceed-
ings and jurisdiction as may
be necessary to secure a
speedy trial and Judgment,
with as little expense as pos-
sible, for the violators of
rights and the transgressors
of the limits and restric-
tions which may be hereby
adopted :
Provided, however, that the
limits, restrictions, and Regu-
lations which may be agreed
upon by the said Commission
shall not be final, nor have
any effect, until so jointly
confirmed and declared by
the territorial waters of
Canada.
This is shown by the fact
that in the French Conven-
tion the whole of the oyster-
beds in Granville Bay, other-
wise called the Bay of Can-
cale, the entrance of which
exceeds 10 mires in width,
were regarded as French,
and the enjoyment of them
is reserved to the local fish-
ermen.
A reference to the action
of the United States' Gov-
ernment, and to the admis-
sion made by their states-
men in regard [to] bays
on the American coasts,
strengthens this view ; and
the case of the English
ship Orange shows that the
Government of the United
States in 1793 claimed Del-
aware Bay as being within
territorial waters.
Mr. Bayard contends that
the rule which he asks to
have set up was adopted by
the Umpire of the Commis-
sion appointed under the
Convention of 1853 in the
case of the United States'
fishing-schooner Washington,
that it was by him applied
to the Bay of Fundy, and
that it is for this reason ap-
plicable to other Canadian
bays.
It is submitted, however,
that as one of the headlands
of the Bay of Fundy is in
the territory of the United
States any rules of inter-
national law applicable to
that bay are not therefore
equally applicable to other
bays the headlands of which
are both within the terri-
tory of the same Power.
The second paragraph of
the 1st Article deos not in-
corporate the exact lan-
guage of the Convention of
1818. For instance, the
words, " and for no other
purpose whatever," should be
inserted after the mention of
the purposes for which ves-
sels may enter Canadian
waters, and after the words,
" as may be necessary to
prevent, should be inserted,
" their taking, drying, or cur-
ing fish therein, or in any
other manner abusing the
privileges reserved, &c.
To make the language con-
form correctly to the Con-
vention of 1818, several
other verbal alterations,
which need not be enumer-
ated here, would be neces-
sary.
Inshore fisheries, was sub-
mitted by Mr. P. Mitchell,
Minister of Marine and Fish-
eries of the Dominion, to
the Privy Council, and on
the same day was approved.
In that draft the width of
ten miles, as now proposed
by this Government, was
laid down as the definition
of the bays and harbors
from which American fisher-
men were to be excluded ;
and in respect to the Bay
des Chaleurs, it was directed
that the officers mentioned
should not admit American
fishermen " inside of a line
" drawn across at that part
" of such bay where its
" width does not exceed ten
" miles." (See Sess. Pap..
1870 ; see also Appendix "A
to this Memorandum.) It ia
true that it was stated that
these limits were " for the
present to be exceptional."
But they are irreconcilable
with the supposition that
the present proposal of this
Government " would involve
' a surrender of fishing
' rights which have always
' been regarded as the ex-
' elusive property of Can-
' ada."
It Is, however, to be ob-
served that the instructions
above referred to were not
enforced, but were, at the re-
quest of Her Majesty's Gov-
ernment, amended, by con-
fining the exercise of police
jurisdiction to a distance of
three miles from the coasts
or from bays less than six
miles in width. And in re-
spect to the Bay des Cha-
leurs, it was ordered that
American fishermen should
not be interfered with unless
they were found " within
three miles of the shore."
(Sess. Pap., Vol. IV, No. 4,
1871 ; see also Appendix
"B.")
The final instructions of
1870, being thus approved
and adopted, were reiterated
by their reissue in 1871.
Such was the condition of
things from the discontin-
uance of the Canadian
license system, in 1870,
until, by the Treaty of Wash-
ington, American fishermen
again had access to the in-
shore fisheries.
As to the statute cited
(14 and 15 Viet., cap. 63,
August 7, 1851), it is only
necessary to say that It can
have no relevance to the
present discussion, because
it related exclusively to the
settlement of disputed boun-
daries between the two Brit-
ish provinces of Canada and
New Brunswick, and had no
international aspect what-
ever ; and the same may be
said of the case cited, which
was wholly domestic in Its
nature.
Excepting the Bay des
Chaleurs, no case Is adduced
to show why the limit
adopted in the Conventions
regulating the fisheries In
950
COBBESPONDENCE, ETC.
the United States and Her
Majesty the Queen of Great
Britain, either by Treaty or
by laws mutually acknowl-
edged.
the British Channel and In
the North Sea would not be
equally applicable to the
provinces. The coasts bor-
dering on those waters con-
tain numerous " bays " more
than ten miles wide ; and no
other condition has been
ouggested to make the limit
established by Great Britain
and other powers as to those
coasts " inapplicable " to the
coasts of Canada.
The exception referred to
(of the oyster beds Jn Gran-
Tllle Bay) from the ten-
mile rule in the Conventions
of 1839 and 1843, between
Great Britain and France, la
found, upon examination of
the latter Convention, to be
" established upon special
principles ; " and It Is be-
lieved that the area of wa-
ters so excepted is scarcely
12 miles by 19. In this re-
lation It may be Instructive
to note the terms of the
Memorandum proposed for
the Foreign Office In 1870,
with reference to a Com-
mission to settle the fishing
limits on the coast of Brit-
ish North America. (Sess.
Pap., 1871 ; see also Appen-
dix "C.")
The Bay des Chaleurs la
161 miles wide at the mouth,
measured from Birch Point
to Point Macquereau ; con-
tains within its limits sev-
eral other well-defined bays,
distinguished by their re-
spective names, and, accord-
Ing to the " observations," a
distance of almost seventy
miles Inward may be trav-
ersed before reaching the
ten mile line.
The Delaware Bay is Hi
miles wide at the mouth, 32
miles from which It nar-
rows Into the river of that
name, and has always been
held to be territorial waters,
before and since the case of
the Grange — an international
case, — In 1793, down to the
present time.
In delivering judgment In
the case of the Washington,
the Umpire considered the
headland theory and pro-
nounced It " new doctrine."
He noted among other facts
that one of the headlands of
the Bay of Fundy was In
the United States, but did
not place his decision on
that ground. And immedi-
ately in the next case, that
of the Argus, heard by him
and decided on the same
day, he wholly discarded the
headland theory and made
an award In favor of the
owners. The Argus was
seized, not In the Bay of
Fundy, but because (al-
though more than three
miles from land) she was
found fishing within a line
drawn from headland to
headland, from Cow Bay to
Cape North, on the north-
east side of Cape Breton
Island.
PEEIOD FROM 1811 TO 1905.
951
The language of the Con-
yention of 1818 was not
fully incorporated In the sec-
ond paragraph of the 1st
Article of the proposal, be-
cause that paragraph relates
to regulations for the se-
cure enjoyment of certain
privileges expressly reserved.
The words " and for no
other purpose whatever "
would in this relation be
4 surplusage. The restrictions
to prevent the abuse of the
privileges referred to would
necessarily be such as to
prevent the " taking, drying,
and curing " of fish. For
these reasons the words re-
ferred to were not inserted,
nor is the usefulness of
their insertion apparent.
Ad interim Arrangement fro- Observations on Mr. Bay- Reply to "Observations " on
posed by the United ard's Memorandum. Proposal.
States' Government.
ARTICLE II.
ABTICLB II.
Pending a definitive ar-
rangement on the subject,
Her Britannic Majesty's
Government agree to in-
struct the proper Colonial
and other British officers to
abstain from seizing or mo-
lesting fishing vessels of
the United States unless
they are found within 3 ma-
rine miles of any of the
coasts, bays, creeks, and
harbours of Her Britannic
Majesty's dominions in
America, there fishing, or to
have been fishing or prepar-
ing to fish within those lim-
its, not included within the
limits within which, under
the Treaty of 1818, the fish-
ermen of the United States
continue to retain a com-
mon right of fishery with
Her Britannic Majesty's
subjects.
This Article would sus-
pend the operation of the
Statutes of Great Britain
and of Canada, and of the
provinces now constituting
Canada, not only as to the
various offenses connected
with fishing, but as to cus-
toms, harbours, and ship-
ping, and would give to the
fishing vessels of the United
States privileges in Cana-
dian ports which are not
enjoyed by vessels of any
other class, or of any other
nation. Such vessels would,
for example, be free from
the duty of reporting at the
Customs on entering a Cana-
dian harbour, and no safe-
guard could be adopted to
prevent infraction of the
Customs Laws by any vessel
asserting the character of a
fishing vessel of the United
States.
Instead of allowing to
such vessels merely the re-
stricted privileges reserved
by the Convention of 1818,
it would give them greater
privileges than are enjoyed
at the present time by any
vessels in any part of the
world.
The objections to this
Article will, It is believed,
be removed by a reference to
Article VI, in which "the
United States agrees to ad-
monish its fishermen to
comply " with Canadian cus-
toms regulations and to co-
Operate in securing their en-
forcement. Obedience by
American fishing vessels to
Canadian laws was believed
and certainly was intended
to be secured by this article.
By the consolidation, how-
ever, of Articles II and VI
the criticism would be fully
met.
Ad interim Arrangement pro- Observations on Mr. Bay-
posed by the United ard's Memorandum.
States' Government.
Reply to " Observations " on
Proposal.
ABTICLE III.
ABTICLB III.
For the purpose of exe-
cuting Article I of the Con-
vention of 1818, the Govern-
ment of the United States
and the Government of Her
Britannic Majesty hereby
agree to send each to the
Gulf of St. Lawrence a na-
tional vessel, and also one
each to cruise during the
fishing season on the south-
ern coasts of Nova Scotia.
Whenever a fishing vessel of
This Article would de-
prive the Courts in Canada
of their jurisdiction, and
would vest that jurisdiction
in a Tribunal not bound by
legal principles, but clothed
with supreme authority to
decide on most important
rights of the Canadian peo-
ple.
It would submit such
rights to the adjudication
of two naval officers, one of
As the chief object of thin
Article is not unacceptable
to Her Majesty's Govern-
ment— i. e., the establish-
ment of a joint system of
inquiry by naval officers of
the two countries In the
first instance — it is believed
that the objections sug-
gested may be removed by
an enlargement of the list
of enumerated offenses so as
to include Infractions of the
952
CORRESPONDENCE, ETC.
the United States shall be
seized for violating the pro-
visions of the aforesaid Con-
vention by fishing or prepar-
ing to fish within 3 marine
miles of any of the coasts,
bays, creeks, and harbours of
Her Britannic Majesty's do-
minions included within the
limits within which fishing
Is by the terms of the said
Convention renounced, such
vessels shall forthwith be
reported to the officer in
command of one of the said
national vessels, who, In
conjunction with the officer
In command of another of
said vessels of different na-
tionality, shall hear and ex-
amine into the facts of the
case. Should the said com-
manding officers be of opin-
ion that the charge is not
sustained, the vessel shall be
released. But if they should
be of opinion that the ves-
sel should be subjected to a
judicial examination, she
shall forthwith be sent for
trial before the Vice-Admi-
ralty Court at Halifax. If,
however, the said command-
Ing officers should differ in
opinion, they shall name
some third person to act as
Umpire between them, and
should they be unable to
agree upon the name of such
third person, they shall each
name a person, and it shall
be determined by lot which
of the two persons so named
shall be the Umpire.
them belonging to a foreign
country, who, if they should
disagree and be unable to
choose an Umpire must refer
the final decision of the
great interests which might
be at stake to some person
chosen by lot.
If a vessel charged with
infraction of Canadian fish-
ing rights should be thought
worthy of being subjected to
a " Judicial examination,"
she would be sent to the
Vice-Admiralty Court at
Halifax, but there would be
no redress, no appeal, and
no reference to any Tribunal
if the naval officers should
think proper to release her.
It should, however, be ob-
served that the limitation la
the second sentence of this
Article of the violations of
the Convention which are to
render a vessel liable to seiz-
ure could not be accepted by
Her Majesty's Government.
For these reasons, the Ar-
ticle in the form proposed la
inadmissible, but Her Maj-
esty's Government are not
indisposed to agree to the
principle of a joint inquiry
by the naval officers of the
two countries In the first In-
stance, the vessel to be sent
for trial at Halifax if the
naval officers do not agree
that she should be released.
They fear, however, that
there would be serious prac-
tical difficulties in giving
effect to this arrangement,
owing to the great length of
coast, and the delays, which
must in consequence be fre-
quent, in securing the pres-
ence at the same time and
place of the naval officers of
both Powers.
regulations which may be
established by the Commis-
sion. And the treatment to
be awarded to such infrac-
tions should also be consid-
ered by the same body.
Ad interim Arrangement pro-
posed by the United
States' Government.
Observations on Mr. Bay- Reply to "Observations " on
ard's Memorandum. Proposal.
ABTICLB IV.
AETICLH IV.
The fishing vessels of the
United States shall have in
the established ports of
entry of Her Britannic Maj-
esty's dominions in America
the same commercial privi-
leges as other vessels of the
United States, including the
purchase of bait and other
supplies ; and such privi-
leges shall be exercised sub-
ject to the same Rules and
Regulations and payment of
the same port charges as
are prescribed for other ves-
sels of the United States.
This Article Is also open
to grave objection. It pro-
poses to give the United
States fishing vessels the
same commercial privileges
as those to which other ves-
sels of the United States are
entitled, although such privi-
leges are expressly re-
nounced by the Convention
of 1818 on behalf of fishing
vessels, which were there-
after to be denied the right
of access to Canadian waters
for any purpose whatever,
except those of shelter, re-
pairs, and the purchase of
wood and water. It has
frequently been pointed out
that an attempt was made,
during the negotiations
which preceded the Conven-
tion of 1818, to obtain for
the fishermen of the United
States the right of obtain-
ing bait in Canadian waters,
arfB that this attempt was
successfully resisted. In
aplte of this fact, It Is pro-
The Treaty of 1818 re-
lated solely to Fisheries.
It was not a commercial
Convention, and no commer-
cial privileges were re-
nounced by It. It contains
no reference to " ports," of
which, it is believed, the
only ones then existing were
Halifax, in Nova Scotia,
and possibly one or two
more In the other provinces ;
and these ports were not
until long afterwards opened,
by reciprocal commercial
regulations, to vessels of the
United States engaged In
trading.
The right to " obtain "
(t. e., take, or fish for) bait,
was not insisted upon by the
American negotiators, and
was doubtless omitted from
the Treaty, because, as It
would have permitted fish-
Ing for that purpose, It was
a partial reassertlon of the
right to fish within the lim-
its as to which the right to
PERIOD FROM 1871 TO 1905.
953
posed, under this Article, to
declare that the Convention
of 1818 gave that privilege,
as well as the privilege of
purchasing other supplies In
the harbours of the Do-
minion.
take fish had already been
expressly renounced.
The purchase of bait and
other supplies by the Ameri-
can fishermen in the estab-
lished ports of entry of
Canada, as proposed in Ar-
ticle IV, is not regarded as
Inconsistent with any of the
provisions of the Treaty of
1818 ; and in this relation
it is pertinent to note the
declaration of the Earl of
Kimberly, in his letter of
February 16, 1871, to Lord
Llsgar, that " the exclusion
" of American fishermen
" from resorting to Canadian
" ports, except for the pur-
" pose of shelter, and of re-
" pairing damages therein,
" purchasing wood, and ob-
" taining water, might be
" warranted by the letter of
"the Treaty of 1818, and
" by the terms of the Im-
" perial Act 59, Geo. Ill,
"Chap. 38, but Her Maj-
" esty's Government feel
" bound to state that It
" seems to them an extreme
" measure Inconsistent with
" the general policy of the
" Empire, and they were dls-
" posed to concede this point
"to the United States GOT-
" ernment under such re-
" strictions as may be neces-
" sary to prevent smuggling,
and to guard against any
substantial invasion of the
' exclusive rights of fishing
' which may be reserved to
' British subjects."
It is not contended that
the right to purchase bait
and supplies, or any other
privilege of trade, was given
by the Treaty of 1818.
Neither was any such right
or privilege stipulated for or
given by the Treaty of 1854,
nor by the Treaty of Wash-
ington ; and the Halifax
Commission decided in 1877,
that it was not " compe-
tent " for that tribunal " to
" award compensation for
" commercial Intercourse be-
" tween the two countries,
" nor for purchasing bait,
" ice, supplies, &c., nor for
" permission to transship
" cargoes in British waters.
And yet this Government la
not aware that, during the
existence of the Treaty of
1854 or the Treaty of Wash-
ington, question was ever
made of the right of Ameri-
can fishermen to purchase
bait and other supplies In
Canadian ports, or that such
privileges were ever denied
them.
954
CORRESPONDENCE, ETC.
Ad interim Arrangement pro- Observations on Mr. Bay-
posed by the United ard'a Memorandum.
States' Government.
Reply to "Observations " on
Proposal.
ABTICLB V.
ABTICLH V.
The Government of Her
Britannic Majesty agree to
release all United States'
fishing vessels now under
seizure for failing to report
at custom-houses when
seeking shelter, repairs, or
supplies, and to refund all
fines exacted for such fail-
ure to report. And the
High Contracting Parties
agree to appoint a Joint
Commission to ascertain the
amount of damage caused to
American fishermen during
the year 1886 by seizure
and detention in violation of
the Treaty of 1818, said
Commission to make awards
therefor to the parties in-
jured.
By this Article It la pro-
posed to give retrospective
effect to the unjustified in-
terpretation sought to be
placed on the Convention by
the last preceding Article.
It is assumed, without dis-
cussion, that all United
States' fishing vessels which
have been seized since the
expiration of the Treaty of
Washington have been il-
legally seized, leaving, aa
the only question still open
for consideration, the amount
of damages for which the
Canadian authorities are
liable.
Such a proposal appears
to Her Majesty's Govern-
ment quite inadmissible.
This Government Is not
disposed to insist on the pre-
cise form of this Article, but
is ready to substitute there-
for a submission to arbitra-
tion in more general terms.
Ad interim Arrangement pro-
posed \>y the United
States' Government.
Observations on Mr. Bay-
ard's Memorandum.
AHTICLB VI.
The Government of the
United States and the Gov-
ernment of Her Britannic
Maiesty agree to give con-
current notification and
warning of Canadian Cus-
toms Regulations, and the
United States agrees to ad-
monish its fishermen to
comply with them and co-
operate in securing their
enforcement.
This Article calla for no
remark.
APPENDIX A.
" In such capacity, your Jurisdiction must be strictly confined within the limit of ' three
marine miles of any of the coasts, bays, creeks or harbors,' of Canada, with respect to any
action you may take against American fishing vessels and United States citizens engaged
in fishing. Where any of the bays, creeks or harbors shall not exceed ten geographical
miles in width, you will consider that the line of demarcation extends from headland to
headland, either at the entrance to such bay, creek or harbor, or from and between given
points on both sides thereof, at any place nearest the mouth where the shores are less than
ten miles apart ; and may exclude foreign fishermen and fishing vessels therefrom, or seize
if found within three marine miles of the coast
"Jurisdiction. — The limits within which you will, if necessary, exercise the power to
exclude Uuited States fishermen, or to detain American fishing vessels or boats, are for
the present to be exceptional. Difficulties have arisen In former times with respect to
the question, whether the exclusive limits should be measured on lines drawn parallel every-
where to the coast and describing its sinuosities, or on lines produced from headland to
headland across the entrances of bays, creeks or harbors. Her Majesty's Government are
clearly of opinion, that by the Conventi9n of 1818, the United States have renounced the
right of fishing not only within three miles of the Colonial shores, but within three miles
of a line drawn across the mouth of any British bay or creek. It Is, however, the wish
of Her Majesty's Government neither to concede, nor for the present to enforce any righta
In this respect, which are in their nature open to any serious question. Until further
instructed, therefore, you will not Interfere with any American fishermen unless found
within three miles of the shore, or within three miles of a line drawn across the mouth
of a bay or creek which is less than ten geographical miles In width. In the case of any
other bay, as the Bay de Chaleurs, for example, you will not admit any United States
fishing vessel or boat, or any American fishermen, inside of a line drawn across at that
part of such bay where its width does not exceed ten miles." (Session Papers, Vol. Ill,
No. 6, 1870.)
APPENDIX B.
" In such capacity, your jurisdiction must be strictly confined within the limit of ' three
marine miles of any of the coasts, bays, creeks or harbors ' of Canada, with respect to any
action you may take against American fishing vessels and United States citizens engaged in
PERIOD FROM 1871 TO 1905. 955
fishing. Where any or the bays, creeks, or harbors shall not exceed six geographical miles
iii width, you will consider that the line of demarcation extends from headland to headland,
either at the entrance to such bay, creek, or harbor, or from and between given points on
both sides thereof, at any place nearest the mouth where the shores are less than six
miles apart ; and may exclude foreign fishermen and fishing vessels therefrom, or seize
If found within three marine miles of the coast..
" Jurisdiction. — The limits within which you will, If necessary, exercise the power to
exclude United States fishermen, or to detain American fishing vessels or boats, are for
the present to be exceptional. Difficulties have arisen in former times with respect to the
question, whether the exclusive limits should be measured on lines drawn parallel every-
where to the coast and describing its sinuosities, or on lines produced from headland to
headland across the entrances of bays, creeks or harbors. Her Majesty's Government are
clearly of opinion that, by the Convention of 1818, the United States have renounced the
right of fishing not only within three miles of the Colonial shores, but within three miles
of a line drawn across the mouth of any British bay or creek. It Is, however, the wish
of Her Majesty's Government neither to concede, nor for the present to enforce any rights
In this respect which are In their nature open to any serious question. Until further
Instructed, therefore, you will not Interfere with any American fishermen unless found
within three miles of the shore, or within three miles of a line drawn across the mouth
of a bay or a creek which, though In parts more than six miles wide, is less than six
geographical miles in width at Its mouth. In the case of any other bay, as the Bay dea
Chalcurs for example, you will not interfere with any United States fishing vessel or
boat, or any American fishermen, unless they are found within three miles of the shore.
"Action. — You will accost every United States vessel or boat actually within three
marine miles of the shore along any other part of the coast except Labrador and around
the Magdalen Islands, or within three marine miles of the entrance of any bay, harbor, or
creek which is less than six geographical miles in width, or Inside of a line drawn across
any part of such bay, harbor, or creek at points nearest to the mouth thereof not wider
apart than six geographical miles, and if either fishing, preparing to fish, or having obvi-
ously fished within the exclusive limits, you will, in accordance with the above-recited
acts, seize at once any vessel detected in violating the law, and send or take her into port
for condemnation ; but you are not to do so unless it is evident, and can be clearly proved,
that the offense of fishing has been committed, and that the vessel is captured within the
prohibited limits." (Session Papers, Vol. IV, No. 4, 1871.)
APPENDIX C. — The secretary of state for the colonies to the governor-general.
DOWNING STREET, October 10, 1870.
SIR : I inclose a copy of a memorandum, which I have requested Lord Granville to trans-
mit to Sir E. Thornton, with instructions to communicate with you before addressing him-
self to the Government of United States on the subject to which the memorandum relates.
The object of Her Majesty's Government is, as you will observe, to give effect to the
wishes of your Government, by appointing a joint commission, on which Great Britain,
the United States, and Canada are to be represented, with the object of inquiring what
ought to be the geographical limits of the exclusive fisheries of the British North Ameri-
can colonies. In accordance with the understood desire of your advisers It Is proposed
that the Inquiry should be held in America.
The proposal contained in the last paragraph Is made with a view to avoid diplomatic
difficulties, which might otherwise attend the negotiation.
I have, etc.,
KlMBEELBT.
Governor-General the Right Hon. Sir JOHN YOUNG, G. C. B., G. C. M. G.
Sir L. S. Sackville West to Mr. Bayard.
WASHINGTON, July 18, 1887. (Eeceived July 19.)
SIR : In your note of the llth of November last, inclosing copies of
the statements with affidavits from Captain Medeo Rose, master of the
schooner Laura Sayward, of Gloucester, Mass., you state that these
papers impressively describe the " inhospitable " and " inhuman "
conduct " of the collector of the port of Shelburne, Nova Scotia, in re-
fusing to allow Captain Rose to buy sufficient food for himself and
crew to take them home, besides unnecessarily retaining his papers,
and thus preventing him, with a wholly inadequate supply ol provi-
sions from proceeding on his voyage." This note, I observe, appears
in the papers relating to the foreign relations of the United States
transmitted to Congress with the President's message, 1886 (No. 231,
page 425.)
I have now the honor to inform you that I am instructed by the
Marquis of Salisbury to communicate to you the inclosed copy of a
dispatch from the governor-general of Canada, together with copy of
an approved minute of the privy council, to which is appended a let-
ter from the collector of customs at Shelburne, inclosing a declara-
956 CORRESPONDENCE, ETC.
tion made by Captain Rose, in which he states that the statements
made by him in the affidavit alluded to in your above-mentioned note
are all untrue.
In communicating these papers to you I am further instructed to
ask whether the United States Government have any observations to
make thereupon.
I have, etc.,
L. S. SACKVILLE WEST.
[Inclosure No. 1.]
Colonial office to foreign office. (Received June 17.)
DOWNING STREET, June 17, 1887.
SIR : With reference to the letter from this department of the 27th
April, relating to the treatment of the United States fishing vessels
Laura Sayward and Jenny Seaverns, I am directed by Secretary Sir
Henry Holland to transmit to you, to be laid before the Marquis of
Salisbury, for such action as he may think proper to take upon it, a
copy of a dispatch from the governor-general of Canada, with an
affidavit by the master of the Laura Sayward.
I am, etc.,
JOHN BRAMSTON.
[Inclosure No. 2.]
The Marquis of Lansdowne to Sir H. Holland.
GOVERNMENT HOUSE, TORONTO, May W, 1887.
SIR: With reference to previous correspondence on the subject of
the alleged ill-treatment of the United States fishing vessel, Laura
Sayward and Jennie Seaverns, and with especial reference to the
affidavit purporting to have been sworn to by Capt. Medeo Rose, of
the first-named vessel, copy of which formed an inclosure in Mr. Stan-
hope's dispatch of the 16th December last, I have the honor to for-
ward herewith a certified copy of an approved minute of my privy
council, to which is appended a letter from the collector of customs
at Shelburne, inclosing a declaration made by Captain Rose, in which
he states that the statements alleged to have been made by him in that
affidavit " are all untrue."
I have, etc., LANSDOWNE.
[Sub-inclosure.]
Report of a committee of tJie honorable the privy council for Canada,
approved by his excellency the governor-general in council on May
16, 1887.
On a report dated the 10th May, 1887, from the minister of marine,
and fisheries, submitting, with reference to his report, approved in
council on the 23d March last, as to the alleged ill-treatment of the
United States fishing vessels Laura Sayward and Jennie Seaverns^
and to the affidavit of Capt. Medeo Rose, of the first-named vessel, the
copy of a letter from the collector of customs at Shelburne, Nova
Scotia, dated the 20th ultimo, together with an affidavit from Captain
Rose, herewith, in which it will be observed that he not only bears
PEEIOD FROM 1871 TO 1905. 957
testimony to the generous treatment that had been extended to him
when at the port of Shelburne on previous occasions, but also declares
that the statements made in the affidavit of the 15th October last, pur-
porting to be sworn to by him, and which affidavit formed the basis of
a dispatch from Mr. Bayard, the United States Secretary of State,
protesting against the inhuman and inhospitable conduct of the col-
lector of customs at Shelburne, Nova Scotia, to use Captain Rose's
own words, "' are all untrue."
The committee recommend that your excellency be moved to for-
ward a copy of this minute, together with copies of the papers men-
tioned, to the right honorable the secretary of state for the colonies.
All which is respectfully submitted for your excellency's approval.
JOHN J. McGEE,
ClerTs Privy Council, Canada.
[Inclosure No. 3.]
Mr. Atwood to commissioner of customs ', Ottawa.
CUSTOM-HOUSE, SHELBURNE, April W, 1887.
SIR: With reference to my letter of the 5th January last and a
statement made by Medeo Eose, of schooner Laura Say ward, a copy
of which was sent me from your department for my report thereon,
I beg to state that Captain Rose, with his vessel, is now lying off
Sandy Point. He reported and obtained clearance yesterday on
board Dominion cutter Triumph. On being questioned by Captain
Lorway relative to the statement made in October last, he said much
of it was untrue, and denied having made it. Inclosed please find a
statement signed by Captain Rose in my presence at Sandy Point,
sworn to and witnessed by Capt. John Purney, justice of the peace.
He made no objection at all to signing it, and admits that this state-
ment is true in every particular. Will you kindly have it forwarded
to John Tilton, esq., deputy minister of fisheries ?
1 am, etc.,
W. W. ATWOOD, Collector.
[Inclosure No. 4.]
Declaration of the captain of the Laura Sayward.
I, Medeo Rose, master of the schooner Laura Sayward, of
Gloucester, do solemnly declare and say that on the 6th October last
I arrived at the port of Shelburne, Nova Scotia, and reported my
vessel at the custom-house some time after 4 p. m.
Stated to the collector that I was from Western Banks, bound
home, and required provisions, as follows, viz: 7 pounds of sugar,
3 pounds of coffee, 1 bushel of potatoes, 2 pounds of butter, and to
fill water. This was all. The collector told me to fill the water, but
as there was no provision made in the treaty for the purchase of
supplies or stores, he would telegraph the department at Ottawa at
once ; that no doubt they would be allowed ; and I consented to wait
until the next morning for a reply.
I called at the custom-house early the next morning, before 7 o'clock ;
stated that, as the wind was fair and blowing a strong breeze, I
958 COBRESPONDENCE, ETC.
would not wait for a reply to telegram, but take a clearance, which
the collector gave me. I was treated kindly, allowed to enter my
vessel after customs hours, and a clearance granted me next morning
before the office was supposed to be opened. I was at the port again
in November, on my way to the banks, and the collector allowed me
to report my vessel inwards and outwards and gave me a clearance
at 8 in the evening.
The statements purporting to have been made by me to the effect
that the collector refused to give me my papers when I asked for
them, also that this treatment towards me was harsh and cruel,
driving myself and crew to sea, having but little flour and water,
etc., are all untrue.
And I make this solemn declaration conscientiously believing the
same to be true, and by virtue of an act of Parliament entitled "An
act for the suppression of voluntary and extra judicial oaths."
MEDEO ROSE.
Taken and declared before me, at Sandy Point, this 20th day of
April, A. D. 1887.
JOHN PTJRNEY,
Justice of the Peace.
Mr. Bayard to Sir L. S. SacJcville West.
DEPARTMENT OF STATE,
Washington, October 31, 1887.
SIR : On the 19th of July last I had the honor to receive from you
a letter, dated the day previous, inclosing a printed copy of a declara-
tion made by Medeo Rose, formerly master of the schooner Laura
Sayward, of Gloucester, Mass., in which he controverts certain state-
ments theretofore made by him under oath, in relation to his treat-
ment by Mr. Atwood, collector of customs at Shelburne, Nova Scotia,
on the 13th of October.
Upon receiving your letter I at once communicated its contents to
the collector of the port of Gloucester, Mass., through whom the
original complaint had been forwarded to this Department.
To-day, for the first time, I was informed that on the 5th of August
last a reply and sworn statement, by way of explanation of this
variance between his affidavit of October 13, 1886, and his subsequent
declaration at Sandy Point, Nova Scotia, dated April 20, 1887, had
been in my absence received at this Department, and by inadvertence
not laid before me until to-day.
I therefore now inclose a copy of the affidavits of Captain Rose
and Augustus Rogers, made at Gloucester, Mass., on August 3 last,
before a notary public, by which it appears that his declaration of
April 20, 1887, was not voluntary, but was obtained from him by the
collector, Atwood through fear and intimidation, under circumstances
fully stated.
I should transmit the documents without further comment, but
that, in closing your note to me of July 18 last, you stated that you
were further instructed to ask whether the United States Govern-
ment have any observations to make thereupon."
PERIOD FEOM 1871 TO 1905. 959
In my reply to you on the 19th of July, I promised to comply with
your request, and for that reason I now remark that the incident
which has been the subject of this correspondence affords but another
illustration and additional evidence, if any were needed, of the un-
wisdom of imperiling the friendly relations of two kindred and neigh-
boring countries by intrusting the interpretation and execution of a
treaty between them to the discretion of local and petty officials, and
vesting in them powers of administration wholly unwarranted and
naturally prolific of the irritations which wise and responsible rulers
will always seek to avoid.
On the eve of a negotiation touching closely the honor and interests
of two great nations, I venture to express the hope that the antici-
pated result of our joint endeavors to harmonize all differences may
render it hereafter impossible to create a necessity for those repre-
senting our respective Governments to be called upon to consider
such questions as are presented in the case of the Laura Sayward.
I have, etc.,
T. F. BAYARD.
[Inclosure.]
Affidavits of Capt. Medeo Rose and Augustus Rogers.
I, Medeo Rose, of Gloucester, being under oath, do depose and say,
that I was master of -the schooner Laura Sayward during the year
1886, and that I am now master of the schooner Gleaner of Gloucester.
On April 18, 1887, 1 went into the lower harbor of Shelburne, Nova
Scotia, in said schooner Gleaner for shelter and water.
On the morning of April 19, Mr. Atwood, the collector of customs,
with two men wearing badges, which I supposed were Government
badges, came on board. Their appearance filled me with fear, for I
felt some trouble must be in store for me when Collector Atwood
would leave his office and come so far (about 4 miles) to board my
vessel. I invited him into the cabin, where he showed me a copy of
my statement of October 13, 1886, in regard to the treatment I re-
ceived from him when in schooner Laura Sayward (October 5, 1886),
and asked me if I made that statement. I told him I did. Well, said
he, everything in that statement is false. I told him my statement
was true. He then produced a prepared written statement, which he
read to me, which stated that my statement of October 13 was
untrue, and told me I must go on shore and sign it. Being nervous
and frightened, and fearing trouble if I refused, I went on shore
with him to the store of Mr. Purney, and before Mr. Purney signed
and swore to the statement.
On the afternoon of the same day, realizing the wrong I had done,
I hired a team and, with one of my crew (Augustus Rogers), went to
the custom-house and asked Collector Atwood to read to me the state-
ment I had signed. He did so, and I again told him it was wrong
and that my first statement was true.
He said I did not ask for all the articles mentioned in my first state-
ment; that he did not refuse me my paper, and also that that state-
ment might be the cause of his removal from his office. I told him I
did not want to injure him, and I did not want to make myself out
a liar at Washington.
960 CORRESPONDENCE, ETC.
About the 3d day of June last I went into Shelburne again solely
to get a copy of the last statement. I went to the custom-house,
taking the same man (Augustus Kogers) with me, and asked Col-
lector Atwood for a copy of the statement.
He refused to give it to me, and said my lawyers had been advising
me what to do and that I need never expect a favor from him.
The above is a true statement of the case. The statement obtained
from me by Collector Atwood was obtained through my fear of
seizure if I refused.
MEDEO ROSE.
I, Augustus Rogers, one of the crew of schooner Gleaner, being duly
sworn, do depose and say, that I went with Capt. Medeo Rose to the
custom-house at Shelburne, Nova Scotia, on the 19th day of April
last, and also on the 3d day of June. I heard his conversation with
Collector Atwood on both occasions, and hereby certify that the .state-
ments of those interviews, as made above, are correct and true.
AUGUSTUS ROGERS.
MASS., ESSEX, ss:
Personally appeared Medeo Rose and Augustus Rogers, and made
oath to the truth of the above statements before me.
[SEAL.] AARON PARSONS,
Notary Public.
AUGUST 3, 1887.
Mr. West to Mr. Bayard.
WASHINGTON, April #5, 1888. (Received April 26.)
SIR: In accordance with instructions which I have received from
the Marquis of Salisbury, I have the honor to communicate to you
copy of a dispatch from the governor-general of Canada to Her
Majesty's secretary of state for the colonies, together with copy of a
minute of the privy council on the subject of the seizure of the United
States fishing vessels, David J. Adams and Ella M. Doughty.
I have, etc.,
L. S. SACKVTT.T.K WEST.
[Inclosure No. 1.]
Lord Landsdowne to Lord Knutsford.
GOVERNMENT HOUSE,
Ottawa, March 21, 1888.
MY LORD: I have the honor to transmit to you a copy of an ap-
proved minute of a committee of the privy council, concurring in a
recommendation of my minister of justice, who has advised that for
the reasons stated in his report the proceedings against the United
States fishing vessels D. J. Adams and E. M. Doughty, libeled in the
vice-admiralty court at Halifax for violation of the statutes relating
to fishing by foreign vessels, be discontinued upon the understanding
that the owners or their representatives give an undertaking which
will prevent such a step being made the basis for a claim for damages
or expenses.
I have, etc., LAKDSDOWNE.
PERIOD FEOM 1871 TO 1905. 961
[Sub-inclosure.]
Report of a committee of the privy council approved "by his excellency
the governor-general in council on 8th March, 1888.
On a report dated 24th February, 1888, from the minister of justice
submitting for your excellency's consideration the cases of the United
States fishing- vessels David J. Adams and E. M. Doughty, the min-
ister of justice observes that these vessels were libeled in the vice-
admiralty court at Halifax for violation of the statutes relating to
" fishing by foreign vessels ", and relating to the convention between
Great Britain and the United States of October 20, 1888.
The proceedings were understood by the counsel on the part of the
Crown to be closed early in the year 1886, but an application was
made by the counsel for the defense for a protracted adjournment in
order that further evidence might be taken.
That the effect of the adjournment which was granted on this appli-
cation was that the causes were not heard until June, 1887, when they
were heard by the Hon. J. McDonald, judge of the vice- admiralty
court for the Province of Nova Scotia.
Judgment was reserved and has not yet been delivered.
The minister desires to remind your excellency that these proceed-
ings were taken for the purpose of asserting and establishing the
right of Canada, under the convention of 1818, to prevent the pur-
chase of bait and other fishing supplies in Canadian ports by the
United States fishing vessels and to prevent such vessels from enter-
ing such ports for the shipping of crews.
As, however, the result of the negotiations recently concluded at
Washington has been to show that no further difference of opinion
between the two Governments upon the points is to be apprehended, it
appears to the minister of justice unnecessary that a judicial decision
should be sought to affirm the right above mentioned.
The minister therefore recommends that he be authorized to dis-
continue the proceedings against the vessels above mentioned, pro-
vided the owners or their representatives give an undertaking which
will prevent such a step being made the basis for a claim for damages
or expenses.
The committee, concurring in the recommendation of the minister
of justice, advise that a copy of this minute be forwarded to the
secretary of state for the colonies in order that the reasons" for this
action above recommended may be in possession of Her Majesty's
Government.
Mr. West to Mr. Bayard.
WASHINGTON, May £, 1888. (Keceived May 3.)
SIR: Under date of the 21st April you inclosed to me copy of a
telegram which had been received from the United States consular
agent at St. Pierre and Miquelon (a French possession) stating that
ten American schooners were in that port which had been prevented
from getting bait in Newfoundland, and that they were willing to
pay the $1.50 per ton in order to obtain it. You requested me at the
same time to ascertain by telegraph whether licenses could be ob-
92909W— 8. Doc. 870, 61-3, vol 3 22
962 CORRESPONDENCE, ETC.
tained under the modus vivendi which provided for their issue by
the act of the British plenipotentiaries. I have now the honor to
inclose to you herewith transcript of a telegram which I have re-
ceived from the Marquis of Salisbury to the effect that the Govern-
ment of Newfoundland have not forbidden the sale of bait to Ameri-
can vessels, that several have been already supplied, and that licenses
therefore are unnecessary.
Trusting that this information will be found satisfactory,
I have, etc.,
L. S. SACKVILLE WEST.
[In closure.]
Transcript of telegram from Marquis of Salisbury to Sir L. West,
dated May 1, 1888.
The Government of Newfoundland have not forbidden sale of bait
to American vessels ; several have been already supplied and licenses
therefore are unnecessary.
Mr. Bayard to Mr. West.
DEPARTMENT OF STATE,
Washington, May 4, 1888.
SIR : I have the honor to acknowledge the receipt of your note of
the 2d instant, communicating a copy of Lord Salisbury's telegram
to you of the 1st instant, to the effect that the Government of New-
foundland has not forbidden the sale of bait to American vessels,
that several have already been supplied, and that licenses are there-
fore unnecessary.
I beg to renew the expression of satisfaction contained in my per-
sonal note of the 1st instant, and trust the amicable disposition man-
ifested may be productive of good results to the relations of the two
countries.
I have, etc.,
T. F. BAYARD.
Mr. West to Mr. Bayard.
WASHINGTON, May 30, 1888. (Received May 31.)
SIR : I am instructed by the Marquis of Salisbury to communicate
to you the inclosed form of license which the Dominion Government
proposes to issue for American fishing vessels under the modus
vivendi, which has been put in operation.
I have, etc.,
L. S. SACKVILLE WEST.
PEEIOD FROM 1871 TO 1905. 963
[IncloBure.]
License to United States Fishing Vessels.
, of the United States fishing vessels , and tons
register, of — , having paid to the undersigned collector of cus-
toms at the port of - the sum of , the privilege is hereby
granted to said fishing vessel to enter the bays and harbors of the
Atlantic coasts of Canada and Newfoundland for the purchase of
bait, ice, seines, lines, and all other supplies and outfits and the trans-
shipment of catch and shipping of crews.
This license shall continue in force for one year from the date
thereof, and is issued in pursuance of the act of the Parliament of
Canada, chapter , of 1888, entitled "An act respecting a
certain treaty between Her Britannic Majesty and the President of
the United States," and in pursuance of agreement between the Gov-
ernment of Canada and the Government of Newfoundland.
This license, while conferring the above mentioned privileges, does
not dispense with a due observance by the holder, or any other person,
of the laws of Canada and of Newfoundland.
Dated this day of , 1888.
Minister of Marine and Fisheries.
Collector of Customs at the Port of
Name,
Master or owner, .
PERIOD FROM 1905 TO 1909.
Mr. Root to Sir M. Durand.
DEPARTMENT OF STATE, WASHINGTON,
October 12, 1905. (Received at Foreign Office, October 27.)
DEAR MR. AMBASSADOR : I have just telegraphed you at Lenox ex-
pressing my wish for an interview at your early convenience. The
occasion for the request is a despatch which I have just received from
Senator Lodge, containing the following statement based, I assume,
upon information received from his constituents in Massachusetts,
who are interested in the fisheries: —
"Newfoundland cruiser 'Fiona' has arrived in Bay of Islands, on
Treaty Coast, with Minister of Marine and Fisheries on board. The
Minister has forbidden all vessels on American register to fish on
Treaty Coast, where they now are, and where they have fished un-
molested since 1818."
The American boats are already upon the Treaty Coast. I have
felt bound to advise Senator Lodge that I have no doubt of their
right to proceed to take fish upon the ground where the Minister of
Marine and Fisheries of Newfoundland has prohibited them from
fishing. The history of the fisheries and the numerous difficulties
which have arisen upon the Treaty Coast indicate that this conflict
between the orders of the Newfoundland Government and the rights
of our fishermen, as we conceive them to be, may lead to very serious
and regrettable incidents. It seems unfortunate that the Govern-
ment of Newfoundland should undertake to prohibit a practice jus-
tified by the construction of the various Treaties relating to the New-
foundland fisheries for more than a century without any suggestion
by the Government of Great Britain that that Government proposes
any change of construction, and without any exchange of views
between the two Governments upon the subject.
I shall wish to satisfy you that immediate representation should be
made to the Government of Newfoundland, which will lead to a
different way of raising and disposing of any questions which there
may be regarding our fishermen s rights under the existing treaty.
I am, &c.
(Signed) ELIHU ROOT.
Sir H. M. Durand to Mr. Root.
BRITISH EMBASSY,
Washington, October 14, 1905.
DEAR MR. SECRETARY: I duly received, after my return from the
State Department last night, your letter of the 12th October regard-
ing the Newfoundland fishery question.
964
PERIOD FROM 1905 TO 1909. 965
As I told you, I have no information regarding the alleged action
of the Newfoundland Government in forbidding the American ves-
sels to fish upon the treaty coast, but I have telegraphed for full in-
formation both to the Foreign Office and to Newfoundland direct.
Meanwhile, I trust that until we know for certain what the facts
are you will do what you can to prevent any action on the part of the
American fishermen which could tend to complicate the'situation. I
will do my best to prevent any such action on the part of our people.
I remain, etc.,
H. M. DURAND.
Sir H. M. Durand to Mr. Root.
BRITISH EMBASSY,
Washington, October Ifa 1905.
DEAR MR. SECRETARY: In answer to my telegram sent last night
regarding the alleged action of the Newfoundland Minister of Marine
and Fisheries in forbidding American vessels to fish on the treaty
coast, the Governor of Newfoundland telegraphs as follows :
" Your telegram this morning. My Ministers regard report en-
tirely improbably (sic). Minister Fisheries on Fiona. Duty not
connected American fisheries. Will obtain report when Minister
Fisheries accessible telegraph."
If, therefore, the alleged prohibition has been issued it is evidently
not by direction of the Newfoundland Government.
I hope the Minister's report, when received, will clear up the matter
satisfactorily.
I remain, etc., H. M. DURAND.
Sir H. M. Durand to Mr. Root.
BRITISH EMBASSY,
Washington, October 19, 1905.
DEAR MR. SECRETARY: In continuation of my letter of the 14th
instant, I am now able to inform you that a telegram has been re-
ceived by the Government of Newfoundland from the Minister of
Marine. The Minister says that the statement that he has forbidden
vessels on American register to fish on the treaty coast is without
foundation. He has exercised no interference whatever with such
vessels. Therefore, whatever may be the facts in regard to the alleged
interference by subordinate officials, about which you spoke to me to-
day, it is clear that the statement originally received by you was not
correct.
I remain, etc., H. M. DURAND.
966 COBRESFONDENCB, ETC.
Mr. Root to Sir M. Durand.
DEPARTMENT OF STATE, WASHINGTON,
October 19, 1905. (Received at Foreign Office, October 27.}
EXCELLENCY: Mr. Gardner, the Representative in Congress of
the Gloucester district, has placed in my hands a number of de-
spatches received by him from masters of American vessels now on
the Newfoundland coast. These despatches are answers to inquiries
sent by him at my request for the purpose of ascertaining definitely,
if possible, what is the precise difficulty there.
These despatches agree hi the statement that vessels of American
registry are forbidden to fish on the Treaty Coast. One captain says
that he was informed that he could not fish by the Inspector of the
Revenue Protection Service of Newfoundland, and several of them
that they have been ordered not to take herring by the Collector of
Customs at Bonne Bay, Newfoundland.
It would seem that the Newfoundland officials are making a
distinction between two classes of American vessels. We have
vessels which are registered, and vessels which are licensed to fish
and not registered. The licence carries a narrow and restricted
authority; the registry carries the broadest and most unrestricted
authority. The vessel with a licence can fish, but cannot trade; the
registered vessels can lawfully both fish and trade. The distinction
between the two classes in the action of the Newfoundland authorities
would seem to have been implied in the despatch from Senator Lodge
which I quoted in my letter of the 12th, and the imputation of the
prohibition of the Minister of Marine and Fisheries may perhaps have
come from the port officers, in conversation with the masters of
American vessels, giving him as their authority for their prohibitions.
As the buying of herring and bait fish, which until recently has
been permitted for a good many years in Newfoundland, is trading,
the American fishing fleet have come very generally to take an
American registry, instead of confining themselves to the narrower
fishing licence, and far the greater part of the fleet now in northern
waters consists of registered vessels. The prohibition against fishing
under an American register substantially bars the fleet from fishing.
American vessels have also apparently been in the habit of entering
at the Newfoundland custom-houses and applying for a Newfoundland
licence to buy or take bait, and I gather from all the information I
have been able to get that both the American masters and the Cus-
toms officials have failed to clearly appreciate the different conditions
created by the practical withdrawal of all privileges on the part of
Newfoundland and the throwing of the American fishermen back upon
the bare rights which belong to them under the Treaty of 1818.
I am confident that we can reach a clear understanding regarding
those rights and the essential conditions of their exercise, and that a
statement of this understanding to the Newfoundland Government,
for the guidance of its officials on the one hand, and to our American
fishermen for their guidance on the other, will prevent causeless
injury and possible disturbances, such as have been cause for regret
in the past history of the north-eastern fisheries.
I will try to state our view upon the matters involved in the situa-
tion, which now appears to exist upon the Treaty Coast. We con-
sider that —
PERIOD FROM 1905 TO 1909. 967
1. Any American vessel is entitled to go into the waters of the
Treaty Coast and take fish of any kind.
She derives this right from the Treaty (or from the conditions
existing prior to the Treaty and recognized by it) and not from any
permission or authority proceeding from the Government of New-
foundland.
2. An American vessel seeking to exercise the Treaty right is not
bound to obtain a licence from the Government of Newfoundland,
and, if she does not purpose to trade as well as fish, she is not bound
to enter at any Newfoundland custom-house.
3. The only concern of the Government of Newfoundland with
such a vessel is to call for proper evidence that she is an American
vessel, and, therefore, entitled to exercise the Treaty right, and to
have her refrain from violating any laws of Newfoundland not
inconsistent with the Treaty.
4. The proper evidence that a vessel is an American vessel and
entitled to exercise the Treaty right is the production of the ship's
papers of the kind generally recognized in the maritime world as
evidence of a vessel's national character.
5. When a vessel has produced papers showing that she is an
American vessel, the officials of Newfoundland have no concern
with the character or extent of the privileges accorded to such a
vessel by the Government of the United States. No question as
between a registry and licence is a proper subject for their considera-
tion. They are not charged with enforcing any laws or regulations
of the United States. As to them, if the vessel is American she has
the Treaty right, and they are not at liberty to deny it.
6. If any such matter were a proper subject for the consideration
of the officials of Newfoundland, the statement of this Department
that vessels bearing an American registry are entitled to exercise the
Treaty right should be taken by such officials as conclusive.
If your Government sees no cause to dissent from these propositions,
I am inclined to think a statement of them as agreed upon would
resolve the immediate difficulty now existing on the Treaty Coast.
I have, however, to call your attention to a further subject, which I
apprehend may lead to further misunderstanding in the near future
if it is not dealt with now. That is, the purposes of the Government
of Newfoundland in respect of the treatment of American fishing-
vessels as exhibited in a Law enacted during the past summer by
the Legislature of that Colony, under the title "An Act respecting
Foreign Fishing-Vessels."
This Act appears to be designed for the enforcement of laws pre-
viously enacted by Newfoundland, which prohibited the sale to foreign
fishing-vessels of herring, caplin, squid, or other bait fishes, lines,
seines, or other outfits or supplies for the fishery or the shipment by
a foreign fishing-vessel of crews within the jurisdiction of New-
foundland.
The Act of last summer respecting foreign fishing-vessels pro-
vides : —
"Section 1. Any Justice of the Peace, sub-collector, preventive
officers, fishery warden, or constable, may go on board any foreign
fishingrvessel being within any port of the coasts of this island, or
hovering within British waters within 3 marine miles of any of the
coasts, bays, creeks, or harbours in this island, and may bring such
968 CORRESPONDENCE, ETC.
foreign fishing-vessel into port, may search her cargo and may examine
the master upon oath touching the cargo and voyage, and the master
or person in command, shall answer truly such questions as shall
be put to him under a penalty not exceeding 500 dollars. And if
such foreign fishing-vessel has on board any herring, caplin, squid,
or other bait fishes, ice, lines, seines, or other outfits or supplies for
the fishery purchased within any port on the coast of this island, or
within the distance of 3 marine miles from any coasts, bays, creeks,
or harbours of this island, or if the master of the said vessel shall have
engaged or attempted to engage any person to form part of the crew
of the said vessel in any port or on any part of the coasts of this
island, or has entered such waters for any purpose not permitted by
Treaty or Convention for the time being in force such vessel and the
tackle, rigging, apparel, furniture, stores, and cargo thereof shall be
forfeited.
"Section 3. In any prosecution under this Act the presence on
board any foreign fishing-vessel in any port of this island, or within
British waters aforesaid of any caplin, squid, or other bait fishes, of
ice, lines, seines, or other outfits or supplies for the fishery shall be
prima fade evidence of the purchase of the said bait, fishes, and
supplies and outfits within such port or waters."'
It seems plain that the provisions above quoted constitute a war-
rant to the officers named to interfere with and violate the rights of
American fishing-vessels under the Treaty of 1818.
The 1st section authorizes any of the officers named to stop an
American vessel while fishing upon the Treaty Coast and compel it
to leave the fishing grounds, to prevent it from going to the places
where the fish may be, to prevent it departing with the fish which it
may have taken, and to detain it for an indefinite period during a
search of the cargo and an examination of the master under oath
under a heavy penalty.
It is to be observed that this section does not require that the
vessel shall have been charged with any violation of the laws of
Newfoundland, or even that she shall have been suspected of having
violated the laws of Newfoundland as a condition precedent to com-
pelling it to desist from the exercise of its Treaty rights, and virtually
seizing it and taking it into port. In the consideration of this pro-
vision, it is unnecessary to discuss any question as to the extent to
which American vessels may be interfered with in the exercise of
their Treaty rights pursuant to judicial proceedings based upon a
charge of violation or law, or even upon reasonable ground to believe
that any law has been violated, for the authority of the Acts
authorized appears to be part of no such proceeding.
When we consider that the minor officials named in the Act,
invested with this extraordinary and summary power, are presump-
tively members of the fishing communities, in competition with which
the American fishermen are following their calling, it is plain that in
denying the right of the Government of Newfoundland to do what
this section provides for we are not merely dealing with a theoretical
question, but with the probability of serious injustice.
The 3rd section of the Act, above quoted in full, makes the pres-
ence on board of an American vessel of the fish, gear — the implements
necessary to the exercise of the Treaty right — prima facie evidence of
a criminal offence against the laws of Newfoundland, and it also
PEEIOD FROM 1905 TO 1909. 969
makes the presence on board the vessel of the fish which the vessel
has a right to take under Treaty prima facie evidence of a criminal
offence under the laws of Newfoundland. This certainly cannot be
justified. It is, in effect, providing that the exercise of the Treaty
right shall be prima fade evidence of a crime.
I need not argue with the Government of Great Britain that the
1st section of this Act purports to authorize the very kind of official
conduct which led to the establishment in England of the rule against
unreasonable searches and seizures, now firmly embedded in the
jurisprudence of both nations. Nor need I argue that American
vessels are of right entitled to have on them in the waters of the
Treaty Coast both fish of every kind, and the gear for the taking of
fish, and that a law undertaking to make that possession prima facie
proof of crime deprives them of that presumption of innocence to
which all citizens of Great Britain and America are entitled. When
the Legislature of Newfoundland denies these rights to American
fishing-vessels, it imposes upon them a heavy penalty for the exercise
of their rights under the Treaty, and we may reasonably apprehend
that this penalty will be so severe in its practical effect as to be an
effectual bar to the exercise of the Treaty right.
I feel bound to urge that the Government of Great Britain shall
advise the Newfoundland Government that the provisions of law
which I have quoted are inconsistent with the rights of the United
States under the Treaty of 1818, and ought to be repealed; and that,
in the meantime, and without any avoidable delay, the Governor in
Council shall be requested by a Proclamation which he is authorized
to issue under the 8th section of the Act respecting Foreign Fishing-
Vessels, to suspend the operation of the Act.
There is still another phase of this subject to which I must ask your
attention. I am advised that there is a very strong feeling among
the Newfoundland fishermen on the Treaty Coast against the enforce-
ment of the Newfoundland Act prohibiting the sale of bait, and that
at a recent mass meeting of fishermen at the Bay of Islands, Resolu-
tions were adopted urging the repeal or suspension of that Act, and
containing the following clauses: —
"If our requests are not granted immediately we shall be com-
pelled, in justice to ourselves and families, to seek other ways and
means to engage with the Americans.
"We would also direct the attention of his Excellency the Governor
in Council to what took place in Fortune Bav^ a few years ago when
Captain Solomon Jacobs seined herring against the washes of the
Eeople, and the result. If a similar occurrence should take place
ere, who will be responsible ? "
This resolution indicates the existence of still another source from
which, if not controlled, may come most unfortunate results when the
American fishermen proceed to the exercise of their Treaty rights,
that is, the Newfoundland fishermen themselves acting indepen-
dently of their Government.
You are aware that for a considerable period American fishing-
vessels, instead of themselves taking herring, caplin, and squid upon
the Treaty Coast, have been in the habit of buying those fish from
the Newfoundland fishermen. For many of the Newfoundland
fishermen this trade has been a principal means of support. That
has been especially so in and about the Bay of Islands. It has been
970 CORRESPONDENCE, ETC.
profitable to the local fishermen, and it has been for the Americans a
satisfactory substitute for the exercise of their Treaty right to catch
the fish themselves. It is, indeed, not unnatural that these fisher-
men should struggle in every way open to them to prevent the loss
of their means of support, and that if they cannot control their own
Government so as to secure permission to sell herring and bait, they
should seek to prevent the Americans from taking the bait, in the
hope that as the result of that prevention, their profitable trade may
be restored.
The Resolution which I have quoted referring to the Fortune Bay
case is a clear threat of violence to prevent the exercise of the Treaty
right. If the threat should be carried out it is too much to expect
that some at least of the American fishermen will not refuse to yield
to lawless force which seeks to deprive them of their rights and of
their means of livelihood.
We shall do everything in our power to prevent such a collision,
and we should indeed deeply deplore it, but the true and effective
method of prevention plainly must be the exercise of proper control
by the Government of Newfoundland over the fishermen of New-
foundland, and it seems to me that the danger is sufficiently real and
imminent to justify me in asking that the Government of Great
Britain shall take speedy steps to bring about the exercise of such
control.
I have, &c. (Signed) ELIHU ROOT.
Sir H. M. Durand to Mr. Root.
BRITISH EMBASSY,
Washington, October 20, 1905.
SIR : I have the honor to acknowledge the receipt of your dispatch
dated the 19th of October, regarding the Newfoundland fishery
question.
I do not think it desirable at present to make any detailed observa-
tions on this dispatch, but I have sent a copy to His Majesty's Gov-
ernment and to the governor of Newfoundland.
I note with satisfaction that the Government of the United States
will do everything in their power, as we on our side shall certainly do,
to prevent any collision between American fishermen and those of
Newfoundland, and I trust that they will also do everything in their
power to prevent the occurrence of any other untoward incident
pending inquiry into the question of the Newfoundland "Act respect-
ing foreign fishing vessels," and the supposed misapprehension on the
part of certain Newfoundland officials with regard to the status of
vessels on the American register.
The Government of the United States can not doubt the desire of
His Majesty's Government to adhere strictly to all treaty provisions,
and all that seems required in order to bring about a satisfactory con-
clusion in a case of this nature is the exercise by those concerned, on
both sides, of patience and temper in the assertion of what they con-
ceive to be their rights. It would be most unfortunate if the case
were to be complicated by any precipitate action on the part of Amer-
ican fishermen or local officials. I will do all I can to prevent such
PERIOD PROM 1905 TO 1909. 971
action on the part of the local officials and look to you with confidence
to prevent it on the part of the American fishermen.
H. M. DURAND.
Mr. Root to Sir H. M. Durand.
DEPARTMENT OF STATE,
Washington, October 20, 1905.
MY DEAR SIR MORTIMER: I have received from the Secretary of
Commerce and Labor a letter received by him from the agent on the
Grampus, the Fish Commission boat on the Newfoundland coast,
which contains the following:
" No obstacles placed in the way of American vessels sailing from
home port under fishing license to taking herring on treaty coast.
Government officials here state that vessels under register not permit-
ted to take herring."
It would appear from this that the trouble is, as I had already
gathered from the telegrams of the various ships' captains, in the
making of the distinction by the subordinate Newfoundland officials
between registered and licensed vessels.
Can not the Newfoundland Government be advised that they are
entitled to make no such distinction?
Faithfully, yours, ELIHU ROOT.
Sir Edward Grey to Mr. Whitelaw Reid.
FOREIGN OFFICE, February 2, 1906.
YOUR EXCELLENCY: The views of the United States' Government
with respect to the position of affairs on the coast of Newfoundland,
and to the rights of American fishing-vessels in those waters under
the Treaty of the 20th October, 1818, as set forth in Mr. Root's, note
to His Majesty's Ambassador at Washington of the 19th October,
1905, have received the serious attention of His Majesty's Govern-
ment.
I have now the honour to inclose a Memorandum dealing seriatim
with the six propositions formulated by Mr. Root, and with his ob-
servations with regard to some of the provisions of recent Newfound-
land legislation for the regulation of the fisheries.
As, owing to the prompt measures adopted and to the conciliatory
spirit displayed by both Governments, the fishing season has now
closed without any collision between the British and American fisher-
men, or the development of any such friction as was at one time
anticipated, it is unnecessary to deal more particularly with the latter
portion of Mr. Root's note, which was devoted to that side of the
question.
I have, &c. (Signed) EDWARD GREY.
972 CORBESPONDENOE, ETC.
flnclosure.]
Memorandum.
Mr. Root's note to Sir M. Durand of the 19th October, 1905, on
the subject of the United States' fishery in the waters of Newfoundland
under the Convention of the 20th October, 1818, may be divided into
three parts.
The first deals with complaints which had reached the United
States' Government to the effect that vessels of United States' reg-
istry had been forbidden by the Colonial authorities to fish on the
Treaty Coast, the second with the provisions of "The Newfoundland
Foreign Fishing-Vessels Act, 1905, and the third with the possibility
of a lawless and violent interruption of the United States' fishery by
the inhabitants of the Bay of Islands.
The complaints referred to in the first part of Mr. Root's note were
at once brought to the notice of the Government of Newfoundland,
and they replied that there had been no attempt to prevent American
fishermen from taking fish. The complaints in question appear to
have been based on some misunderstanding, and the subsequent
course of the fishery proved that the apprehensions on the part of the
United States' Government to which they gave rise were, fortunately,
not well founded.
His Majesty's Government, however, agree with the United States'
Government in thinking that inasmuch as the privileges which citi-
zens of the United States have for many years enjoyed of purchasing
bait and supplies and engaging men in Newfoundland waters have
recently been withdrawn and American fishermen have consequently,
in Mr. Root's words, been thrown back upon their rights under the
Convention of 1818, it is desirable that a clear understanding should
be reached regarding those rights and the essential conditions of their
exercise, and they have accordingly given the most careful consider-
ation to the six propositions advanced in Mr. Root's note as embodying
the views of the United States' Government on the subject.
They regret, however, that they are unable to record their assent
to these propositions without some important qualifications.
Proposition 1 states: —
"Any American vessel is entitled to go into the waters of the Treaty
Coast and take fish of any kind. She derives this right from the
Treaty (or from the conditions existing prior to the Treaty and rec-
ognized by it) and not from any permission or authority proceeding
from the Government of Newfoundland."
The privilege of fishing conceded by Article I of the Convention of
1818 is conceded, not to American vessels, but to inhabitants of the
United States and to American fishermen.
His Majesty's Government are unable to agree to this or any of
the subsequent propositions if they are meant to assert any right of
American vessels to prosecute the fishery under the Convention of
1818 except when the fishery is carried on by inhabitants of the United
States. The Convention confers no rights on American vessels as
such. It enures for the benefit only of inhabitants of the United
States.
Proposition 2 states: —
"An American vessel seeking to exercise the Treaty right is not
bound to obtain a licence from the Government of Newfoundland,
PERIOD FROM 1905 TO 1909. 973
and, if she does not purpose to trade as well as fish, she is not bound to
enter at any Newfoundland custom-house."
His Majesty's Government agree that the Government of New-
foundland could not require that American fishermen seeking to
exercise the Treaty right should take out a licence from the Colonial
Government. No licence is required for what is a matter of right,
and no such licence has, His Majesty's Government are informed, been,
in fact, required.
With the last part of the proposition it will be more convenient to
deal in conjunction with proposition 3.
Proposition 3 states: —
"The only concern of the Government of Newfoundland with such
a vessel is to call for proper evidence that she is an American vessel,
and therefore entitled to exercise the Treaty right, and to have her
refrain from violating any laws of Newfoundland not inconsistent
with the Treaty."
It has already been pointed out that the Convention of 1818 confers
no rights on American vessels as such, and that the exercise of the
right of fishing under the Convention is subject to the condition that
the fishing is carried on by inhabitants of the United States. His
Majesty's Government, however, agree that no law of Newfoundland
should be enforced on American fishermen which is inconsistent with
their rights under the Convention.
Mr. Root's note does not give any indication of what laws of the
Colony would be regarded by the United States' Government as incon-
sistent with the Convention if applied to American fishermen. The
opinion of His Majesty's Government on this point is as follows: —
The American fishery, under Article I of the Convention of 1818,
is one carried on within the British jurisdiction and "hi common
with" British subjects. The two Governments hold different views
as to the nature of this Article. The British Government consider
that the war of 1812 abrogated that part of Article III of the Treaty
of Peace of 1783 which continued to inhabitants of the United States
"the liberty" (in the words used by Mr. Adams to Earl Bathurst in his
note of the 25th September, 1815) "of fishing and drying, and curing
their fish within the exclusive jurisdiction on the North American
coasts to which they had been accustomed while themselves forming
a part of the British nation," and that consequently Article I of the
Convention of 1818 was a new grant to inhabitants of the United
States of fishing privileges within the British jurisdiction. The
United States' Government, on the other hand, contend that the war
of 1812 had not the effect attributed to it by the British Government,
and that Article I of the Convention of 1818 was not a new grant,
but merely a recognition (though limited in extent) of privileges
enjoyed by inhabitants of the United States prior, not only to the
war, but to the Treaty of 1783. Whichever of these views be adopted,
it is certain that inhabitants of the United States would not now be
entitled to fish in British North American waters but for the fact that
they were entitled to do so when they were British subjects. Amer-
ican fishermen cannot therefore rightly claim to exercise their right
of fishery under the Convention of 1818 on a footing of greater freedom
than if they had never ceased to be British subjects. Nor consistently
with the terms of the Convention can they claim to exercise it on a
footing of greater freedom than the British subjects "in common
974 COEBESPONDBNOB, BTO.
with" whom they exercise it under the Convention. In other words,
the American fisnery under the Convention is not a free but a regu-
lated fishery, and, in the opinion of His Majesty's Government, Amer-
ican fishermen are bound to comply with all Colonial Laws and Regu-
lations, including any touching the conduct of the fishery, so long
as these are not in their nature unreasonable, and are applicable to
all fishermen alike. One of these Regulations prohibits fishing on
Sundays. His Majesty's Government have received information that
several breaches of this Regulation were committed by American
fishermen during the past fishing season. This Regulation has been
in force for many years, and looking to the insignificant extent to
which American fishermen have exercised their right of fishery on
the Treaty Coast in the past, it cannot be regarded as having been
made with the object of restricting the enjoyment of that right.
Both its reasonableness and its bona fides appear to His Majesty's
Government to be beyond question, and they trust that the United
States' Government will take steps to secure its observance in the
future.
As regards the treatment of American vessels from which American
fishermen exercise the Treaty right of fishery, His Majesty's Govern-
ment are prepared to admit that, although the Convention confers
no rights on American vessels as such, yet since the American fishery
is essentially a ship fishery, no law of Newfoundland should be en-
forced on American fishing-vessels which would unreasonably interfere
with the exercise by the American fishermen on board of their rights
under the Convention. The United States' Government, on their
part, admit, in Mr. Root's note, that the Colonial Government are
entitled to have an American vessel engaged in the fishery refrain from
violating any laws of Newfoundland not inconsistent with the Con-
vention, but maintain that if she does not purpose to trade, but only
to fish, she is not bound to enter at any Newfoundland custom-house.
Mr. Root's note refers only to the question of entry inwards, but it
is presumed that the United States' Government entertain the same
views on the question of clearing outwards. At all events, American
vessels have not only passed to the fishing grounds in the inner waters
of the Bay of Islands without reporting at a Colonial custom-house,
but have also omitted to clear on returning to the United States.
In both respects they have committed breaches of the Colonial Cus-
toms Law, which, as regards the obligations to enter and to clear,
makes no distinction between fishing- and trading-vessels.
His Majesty's Government regret not to be able to share the view
of the United States' Government that the provisions of the Colonial
Law which impose those obligations are inconsistent with the Con-
vention of 1818, if applied to American vessels which do not purpose
to trade, but only to fish. They hold that the only ground on wnich
the application of any provisions of the Colonial Law to American
vessels engaged in the fishery can be objected to is that it unreason-
ably interferes with the exercise of the American right of fishery.
It is admitted that the majority of the American vessels lately
engaged in the fishery on the western coast of the Colony were regis-
tered vessels, as opposed to licensed fishing-vessels, and as such were
at liberty both to trade and to fish. The production of evidence of
the United States' registration is therefore not sufficient to establish
PERIOD FEOM 1905 TO 1909. 975
that a vessel, in Mr. Root's words, "does not purpose to trade as well
as fish," and something more would seem clearly to be necessary.
The United States' Government would undoubtedly be entitled to
complain if the fishery of inhabitants of the United States were
seriously interfered with by a vexatious and arbitrary enforcement
of the Colonial Customs laws, but it must be remembered that, hi
proceeding to the waters in which the winter fishery is conducted,
American vessels must pass in close proximity to several custom-
houses, and that in order to reach or leave the grounds in the arms of
the Bay of Islands, on which the fishery has been principally carried
on during the past season, they have sailed by no less than three
custom-houses on the shores of the bay itself. So that the obligation
to report and clear need not in any way have interfered with a vessel's
operations. It must also be remembered that a fishery conducted in
the midst of practically the only centres of population on the west
coast of the Colony affords ample opportunities for illicit trade, and
consequently calls for careful supervision in the interests of the
Colonial revenue.
The provisions in question are clearly necessary for the prevention
of smuggling, and His Majesty's Government are of opinion that
exception cannot be taken to their application to American vessels as
an unreasonable interference with the American fishery, and they
entertain the strong hope that the United States' Government will,
on reconsideration, perceive the correctness of this view, and issue
instructions accordingly for the future guidance of those in charge of
American vessels.
It is, moreover, to the advantage of the American vessels engaged
in the winter fishery in the Bay of Islands that they should report at
a Colonial custom-house. Owing to the extent and peculiar con-
figuration of that bay, and owing to the prevalence of fogs, vessels
that enter its inner waters may remain for days without the local
officers becoming aware that they are on the coast unless they so
report. In such circumstances it is difficult for the Colonial Govern-
ment to insure to American fishermen that protection against lawless
interference for which Mr. Root calls in the concluding part of his note.
His Majesty's Government desire further to invite the attention of
the United States' Government to the fact that certain United States'
vessels engaged in the fishery refused to pay light dues. This is the
first time, His Majesty's Government are informed, that American
vessels have refused to pay these dues, and it is presumed that the
refusal is based on the denial by the Colonial Government of the
trading privileges allowed in past years. His Majesty's Government,
however, cannot admit that such denial entitles American vessels to
exemption from light dues in the ports in which they fish. As already
statea, American fishing-vessels engaged hi the fishery under the
Convention of 1818 have no Treaty status as such, and the only
ground on which, in the opinion of His Majesty's Government, the
application of any Colonial law to such vessels can be objected to is
that such application involves an unreasonable interference with the
exercise of the Treaty rights of the American fishermen on board.
The payment of light dues by a vessel on entering a port of the Colony
clearly involves no such interference. These dues are payable by all
vessels of whatever description and nationality other than coasting-
arid fishing-vessels owned and registered in the Colony (which are, on
976 CORRESPONDENCE, ETC.
certain conditions, exempt either wholly or in part). His Majesty's
Government trust that in these circumstances such directions will be
issued as will prevent further refusals in the future, and they would
point out generally that it is the duty of all foreigners sojourning in
the limits of the British jurisdiction to obey that law, and that, if it is
considered that the local jurisdiction is being exercised in a manner
not consistent with the enjoyment of any Treaty rights, the proper
course to pursue is not to ignore the law, but to obey it, and to refer
the question of any alleged infringement of their Treaty rights to be
settled diplomatically between their Government and that of His
Majesty.
Propositions 4, 5, and 6 state: —
Proposition 4. "The proper evidence that a vessel is an American
vessel, and entitled to exercise the Treaty right, is the production of
the ship's papers of the kind generally recognized in the maritime
world as evidence of a vessel's national character."
Proposition 5. "When a vessel has produced papers showing that
she is an American vessel, the officials of Newfoundland have no
concern with the character or extent of the privileges accorded to such
a vessel by the Government of the United States. No question as
between a registry and licence is a proper subject for their considera-
tion. They are not charged with enforcing any Laws or Regulations
of the United States, As to them, if the vessel is American she has the
Treaty right, and they are not at liberty to deny it."
Proposition 6. "If any such matter were a proper subject for the
consideration of the officials of Newfoundland, the statement of this
Department that vessels bearing an American registry are entitled to
exercise the Treaty right should be taken by such officials as con-
clusive."
His Majesty's Government are unable to agree to these propositions,
except with the reservations as to the status of American vessels under
the Convention already indicated, and with reference to proposition 6,
they would submit that the assurance to be given by the Department
of State of the United States should be that the persons by whom the
fishery is to be exercised from the American vessels are inhabitants of
the United States.
In point of fact the Colonial Government have informed His
Majesty's Government that they do not require an American vessel
to produce a United States' fishing licence. The distinction between
United States' registration and the possession of a United States'
fishing licence is, however, of some importance, inasmuch as a vessel
which, so far as the United States' Government are concerned, is at
liberty both to trade and to fish naturally calls for a greater measure
of supervision by the Colonial Government than a vessel fitted out
only ror fishing and debarred by the United States' Government from
trading; and information has been furnished to His Majesty's Govern-
ment by the Colonial Government which shows that the proceedings
of American fishing-vessels in Newfoundland waters have in the past
been of such a character as to make it impossible, from the point of
view of the protection of the Colonial revenue, to exempt such vessels
from the supervision authorized by the Colonial Customs Law.
His Majesty's Government now turn to that part of Mr. Root's note
which deals with "The Foreign Fishing- Vessels Act, 1905."
PERIOD FBOM 1905 TO 1909. 977
His Majesty's Government would have viewed with the strongest
disapproval any disposition on the part of the Colonial authorities to
administer this Act in a manner not consistent with His Majesty's
Treaty obligations, but they are confident that the United States'
Government will readily admit that the fears expressed on this head
in Mr. Root's note have not been realized.
They desire, however, to point out that, though the Act in question
was passed to give effect to the decision of the Colonial Government
to withdraw from American fishing-vessels the privileges which they
had been allowed to enjoy for many years previously of purchasing
bait and supplies and of engaging crews in the ports of the Colony, the
provisions objectionable to the United States Government which it
embodies are in no sense new. They will be found in "The Foreign
Fishing- Vessels Act, 1893." The present Act differs from the earlier
Act in that it takes away, by omission, from the Colonial Government
the power conferred upon them by the earlier Act of authorizing the
issue of licences to foreign fishing-vessels for the enjoyment of the
privileges mentioned. Allowing for this change, the provisions of the
two Acts are in all essential respects identical. The provisions as to
boarding, bringing into port, and searching appear in both Acts, and
also the provisions as to the possession of bait, outfits, and supplies
being primd facie evidence of the purchase of the same in the Colonial
jurisdiction, except that in the earlier Act there was a further pro-
vision, consequential on the authority which it conferred on the
Colonial Government to issue licences, directing that the failure or
refusal to produce a licence should be primd facie evidence of the
purchase of such articles without a licence. The position of any
American fishing-vessel choosing to fish for herself on the Treaty
Coast has consequently been since 1893 the same as it is to-day.
His Majesty's Government do not advance these considerations with
the object of suggesting that the objections which the United States'
Government have taken to sections 1 and 3 of the Foreign Fishing-
Vessels Act are impaired by the fact that these provisions have been
on the Statute Book of the Colony since 1893 without protest, and
they are ready to assume that no such protest has been lodged merely
because the privileges accorded to American vessels in the ports of the
Colony up to the present have been such as to render it unnecessary
for inhabitants of the United States to avail themselves of their right
of fishing under the Convention of 1818. The object of His Majesty's
Government is simply to remove any impression which may have
formed itself in the mind of the United States' Government that the
language of the Act of 1905 was selected with any special view of
prejudicing the exercise of the American Treaty right of fishery, and
to point out that, on the contrary, it dates back to 1893, that is, to a
time when it was the policy of the Colonial Government to treat
American vessels on a favoured footing.
A new Act was not necessary to give effect to the present policy of
the Colonial Government. Effect to it could have been given under
the Act of 1893 by the mere suspension of the issue of licences to
American vessels, and the only object of the new Act, as His Majesty's
Government understand the position, was to secure the express and
formal approval of the Colonial Legislature for the carrying out of the
policy of the Colonial Government.
92909°— S. Doc. 870, HI-", vol ?> X'>
978 CORRESPONDENCE, ETC.
Having offered these general remarks, His Majesty's Government
desire to point out that, in discussing the general effects of "The
Foreign Fishing- Vessels Act, 1905," on the American fishery under
the Convention of 1818, the United States' Government confine them-
selves to sections 1 and 3 and make no reference to section 7, which
preserves "the rights and privileges granted by Treaty to the subjects
of any State in amity with His Majesty." In view of this provision,
His Majesty's Government are unable to agree with the United States'
Government in regarding the provisions of sections 1 and 3 as ' 'consti-
tuting a warrant to the officers named to interfere with and violate"
American rights under the Convention of 1818. On the contrary,
they consider section 7 as, in effect, a prohibition of any vexatious
interference with the exercise of the Treaty rights whether of American
or of French fishermen. As regards section 3, they admit that the
possession by inhabitants of the United States of any fish and gear
which they may lawfully take or use in the exercise of their rights
under the Convention of 1818 cannot properly be made primd facie
evidence of the commission of an offence, and, bearing in mind the
provisions of section 7, they cannot believe that a Court of Law would
take a different view.
They do not, however, contend that the Act is as clear and explicit
as, in the circumstances, it is desirable that it should be, and they
propose to confer with the Government of Newfoundland with the
object of removing any doubts which the Act in its present form may
suggest as to the power of His Majesty to fulfil his obligations under
the Convention or 1818.
On the concluding part of Mr. Root's note it is happily not necessary
for His Majesty's Government to offer any remarks, since the fishing
season has come to an end without any attempt on the part of British
fishermen to interfere with the peaceful exercise of the American
Treaty right of fishery.
Mr. Root to Mr. Whitelaw Reid.
DEPARTMENT OF STATE, WASHINGTON, June SO, 1906.
SIR: The memorandum inclosed in the note from Sir Edward Grey
to you of the 2nd February, 1906, and transmitted by you on the 6th
Feoruary, has received careful consideration.
The letter which I had the honour to address to the British
Ambassador in Washington on the 19th October last stated with
greater detail the complaint in my letter to him of the 12th October,
1905, to the effect that the local officers of Newfoundland had
attempted to treat American ships as such, without reference to the
rights of their American owners and officers, refusing to allow such
ships sailing under register to take part in the fishing on the Treaty
coast, although owned and commanded by Americans, and limiting
the exercise of the right to fish to ships having a fishing licence.
In my communications the Government of the United States
objected to this treatment of ships as such — that is, as trading- vessels
or fishing- vessels, and laid down a series of propositions regarding the
treatment due to American vessels on the Treaty coast, based on the
view that such treatment should depend, not upon the character of
PERIOD FROM 1905 TO 1909. 979
the ship as a registered or licensed vessel, but upon its being Ameri-
can; that is, owned and officered by Americans, and, therefore,
entitled to exercise the rights assured by the Treaty of 1818 to the
inhabitants of the United States.
It is a cause of gratification to the Government of the United
States that the prohibitions interposed by the local officials of New-
foundland were promptly withdrawn upon the communication of the
facts to His Majesty's Government, and that the Memorandum now
under consideration emphatically condemns the view upon which the
action of the local officers was based, even to the extent of refusing
assent to the ordinary forms of expression which ascribe to ships the
rights and liabilities of owners and masters in respect of them.
It is true that the Memorandum itself uses the same form of expres-
sion when asserting that American ships have committed breaches of
the Colonial Customs Law, and ascribing to them duties, obligations,
omissions, and purposes which the Memorandum describes. Yet we
may agree that ships, strictly speaking, can have no rights or duties,
and that whenever the Memorandum, or the letter upon which it
comments, speaks of a ship's rights and duties, it but uses a conven-
ient and customary form of describing the owner's or master's right
and duties in respect of the ship. As this is conceded to be essen-
tially "& ship fishing," and as neither in 1818 nor since could there be
an American ship not owned and officered by Americans, it is prob-
ably quite unimportant which form of expression is used.
I find in the Memorandum no substantial dissent from the first
proposition of my note to Sir Mortimer Durand of the 19th October,
1905, that any American vessel is entitled to go into waters of the
Treaty coast and take fish of any kind, and that she derives this right
from the Treaty and not from any authority proceeding from the
Government of Newfoundland.
Nor do I find any substantial dissent from the fourth, fifth, and
sixth propositions, which relate to the method of establishing the
nationality of the vessel entering the Treaty waters for the purpose of
fishing, unless it be intended, by the comments on those propositions,
to assert that the British Government is entitled to claim that, when
an American goes with his vessel upon the Treaty coast for the pur-
pose of fishing, or with his vessel enters the bays or harbours of the
coast for the purpose of shelter and of repairing damages therein, or
of purchasing wood, or of obtaining water, he is bound to furnish
evidence that all the members of his crew are inhabitants of the
United States. We cannot for a moment admit the existence of any
such limitation upon our Treaty rights. The liberty assured to us by
the Treaty plainly includes the right to use all the means customary
or appropriate for fishing upon the sea, not only ships and nets and
boats, but crews to handle the ships and the nets and the boats. No
right to control or limit the means which Americans shall use in fish-
ing can be admitted unless it is provided in the terms of the Treaty,
and no right to question the nationality of the crews employed is con-
tained in the terms of the Treaty. In 1818, and ever since, it has
been customary for the owners and masters of fishing-vessels to
employ crews of various nationalities. During all that period I am
not able to discover that any suggestion has ever been made of a right
to scrutinize the nationality of the crews employed in the vessels
through which the Treaty right has been exercised.
980 CORRESPONDENCE, ETC.
The language of the Treaty of 1818 was taken from the Illrd
Article of the Treaty of 1783. The Treaty made at the same time
between Great Britain and France, the previous Treaty of the 10th
February, 1763, between Great Britain and France, and the Treaty of
Utrecht of the llth April, 1713, in like manner contained a general
grant to "the subjects of France" to take fish on the Treaty coast.
During all that period no suggestion, so far as I can learn, was ever
made that Great Britain had a right to inquire into the nationality
of the members of the crew employed upon a French vessel.
Nearly two hundred years have passed during which the subjects
of the French King and the inhabitants of the United States have
exercised fishing rights under these grants made to them in these
general terms, and during all that time there has been an almost con-
tinuous discussion in which Great Britain and her Colonies have
endeavoured to restrict the right to the narrowest possible limits,
without a suggestion that the crews of vessels enjoying the right, or
whose owners were enjoying the right, might not be employed in the
customary way without regard to nationality. I cannot suppose
that it is now intended to raise such a question.
I observe with satisfaction that the Memorandum assents to that
part of my second proposition to the effect that " an American vessel
seeking to exercise the Treaty right is not bound to obtain a licence
from the Government of Newfoundland," and that His Majesty's
Government agree that "no law of Newfoundland should be enforced
on American fishermen which is inconsistent with their rights under
the Convention."
The views of His Majesty's Government, however, as to what laws
of the Colony of Newfoundland would be inconsistent with the Con-
vention if applied to American fishermen, differ radically from the
view entertained by the Government of the United States. Accord-
ing to the Memorandum, the inhabitants of the United States going
in their vessels upon the Treaty coast to exercise the Treaty right of
fishing are bound to enter and clear in the Newfoundland custom-
houses, to pay light dues, even the dues from which coasting and
fishing-vessels owned and registered in the Colony are exempt, to
refrain altogether from fishing except at the time and in the manner
prescribed by the Regulations of Newfoundland. The Colonial pro-
hibition of fishing on Sundays is mentioned by the Memorandum as
one of the Regulations binding upon the American fishermen. We
are told that His Majesty's Government "hold that the only ground
on which the application of any provisions of Colonial law to Ameri-
can vessels engaged in the fishery can be objected to is that it unrea-
sonably interferes with the American right of fishery."
The Government of the United States fails to find in the Treaty
any grant of right to the makers of Colonial law to interfere at all,
whether reasonably or unreasonably, with the 'exercise of the Ameri-
can rights of fishery, or any right to determine what would be a rea-
sonable interference with the exercise of that American right if there
could be any interference. The argument upon which the Memo-
randum claims that the Colonial Government is entitled to interfere
with and limit the exercise of the American right of fishery, in ac-
cordance with its own ideas of what is reasonable, is based first,
upon the fact that, under the terms of the Treaty the right of the
inhabitants of the United States to fish upon the Treaty coast is
PERIOD FROM 1905 TO 1909. 981
possessed by them "in common with the subjects of His Britannic
Majesty;" and, second, upon the proposition that "the inhabitants of
the United States would not now be entitled to fish in British North
American waters but for the fact that they were entitled to do so
when they were British subjects/' and that "American fishermen
cannot therefore rightfully claim any other right to exercise the right
of fishery under the Treaty of 1818 than if they had never ceased to
be British subjects."
Upon neither of these grounds can the inferences of the Memoran-
dum be sustained. The qualification that the liberty assured to
American fishermen by the Treaty of 1818 they were to have "in
common with the subjects of Great Britain" merely negatives an
exclusive right. Under the Treaties of Utrecht, of 1763 and 1783,
between Great Britain and France, the French had constantly main-
tained that they enjoyed an exclusive right of fishery on that portion
of the coast of Newfoundland between Cape St. John and Cape Raye,
Eassing around by the north of the island. The British, on the other
and, had maintained that British subjects had a right to fish along
with the French, so long as they did not interrupt them.
The dissension arising from these conflicting views had been serious
and annoying, and the provision that the liberty of the inhabitants of
the United States to take fish should be in common with the liberty
of the subjects of His Britannic Majesty to take fish was precisely
appropriate to exclude the French construction and leave no doubt
that the British construction of such a general grant should apply
under the new Treaty. The words used have no greater or other
effect. The provision is that the liberty to take fish shall he held in
common, not that the exercise of that liberty by one people shall be
the limit of the exercise of that liberty by the other. It is a matter
of no concern to the American fishermen whether the people of New-
foundland choose to exercise their right or not, or to what extent
they choose to exercise it. The statutes of Great Britain and its
Colonies limiting the exercise of the British right are mere voluntary
and temporary self-denying ordinances. They may be repealed to-
morrow. Whether they are repealed, or whether they stand, the
British right remains the same, and the American right remains the
same. Neither right can be increased nor diminished by the deter-
mination of the other nation that it will or will not exercise its right,
or that it will exercise its right under any particular limitations of
time or manner.
The proposition that "the inhabitants of the United States would
not now be entitled to fish in British North American waters but for
the fact that they were entitled to do so when they were British sub-
jects," may be accepted as a correct statement of one of the series of
facts which led to the making of the Treaty of 1818. Were it not
for that fact there would have been no fisheries Article in the Treaty
of 1783, no controversy between Great Britain and the United States
as to whether that Article was terminated by the war of 1812, and no
settlement of that controversy by the Treaty of 1818. The Mem-
orandum, however, expressly excludes the supposition that the
British Government now intends to concede that the present rights
of American fishermen upon the Treaty coast are a continuance of
the right possessed by the inhabitants of the American Colonies as
British subjects, and declares that this present American right is a
982 CORRESPONDENCE, ETC.
new grant by the Treaty of 1818. How then can it be maintained
that the limitations upon the former right continued although the
right did not, and are to be regarded as imposed upon the new grant,
although not expressed in the instrument making the grant? On
the contrary, the failure to express in the terms of the new Treaty
the former limitations, if any there had been, must be deemed to
evidence an intent not to attach them to the newly created right.
Nor would the acceptance by Great Britain of the American view
that the Treaty of 1783 was in the nature of a partition of Empire,
that the fishing rights formerly enjoyed by the people of the Colonies
and described in the instrument or partition continued notwithstand-
ing the war of 1812, and were in part declared and in part abandoned
by the Treaty of 1818, lead to any different conclusion. It may be
that under this view the rights thus allotted to the Colonies in 1 783
were subject to such Regulations as Great Britain had already
imposed upon their exercise before the partition, but the partition
itself and the recognition of the independence of the Colonies in the
Treaty of partition was a plain abandonment by Great Britain of the
authority to further regulate the rights of the citizens of the new and
independent nation.
The Memorandum savs: " The American fishermen cannot rightly
claim to exercise their right of fishery under the Convention of 1818
on a footing different than if they had never ceased to be British sub-
jects." What then was the meaning of independence? What was
it that continued the power of the British Crown over this particular
right of Americans formerly exercised by them as British subjects,
although the power of the British Crown over all other rights formerly
exercised by them as British subjects was ended? No answer to
this question is suggested by the Memorandum.
In previous correspondence regarding the construction of the Treaty
of 1818, the Government of Great Britain has asserted, and the
Memorandum under consideration perhaps implies, a claim of right
to regulate the action of American fishermen in the Treaty waters,
upon the ground that those waters are within the territorial juris-
diction of the Colony of Newfoundland. This Government is con-
strained to repeat emphatically its dissent from any such view.
The Treaty of 1818 either declared or granted a perpetual right to
the inhabitants of the United States which is beyond the sovereign
power of England to destroy or change. It is conceded that this
right is, and for ever must be, superior to any inconsistent exercise
of sovereignty within that territory. The existence of this right is a
qualification of British sovereignty within that territory. The
limits of the right are not to be tested by referring to the general
jurisdictional powers of Great Britain in that territory, but the limits
of those powers are to be tested by reference to the right as defined
in the instrument created or declaring it. The Earl of Derby in a
letter to the Governor of Newfoundland, dated the 12th June, 1884,
said: "The peculiar fisheries rights granted by Treaties to the French
in Newfoundland invest those waters during the months of the year
when fishing is carried on in them, both by English and French fisher-
men, with a character somewhat analogous to that of a common sea
for the purpose of fishery." And the same observation is applicable
to the situation created by the existence of American fishing rights
under the Treaty of 1818. An appeal to the general jurisdiction of
PERIOD FEOM 1905 TO 1909. 983
Great Britain over the territory is, therefore, a complete begging of
the question, which always must be, not whether the jurisdiction of
the Colony authorizes a law limiting the exercise of the Treaty right,
but whether the terms of the grant authorize it.
The distinguished writer just quoted observes in the same letter: —
"The Government of France each year during the fishing season
employs ships of war to superintend the fishery exercised by their
countrymen, and, in consequence of the divergent views entertained
by the two Governments respectively as to the interpretation to be
placed upon the Treaties, questions of jurisdiction which might at
any moment have become serious have repeatedly arisen."
The practice thus described, and which continued certainly until as
late as the modification of the French fishing rights hi the year 1904,
might well have been followed by the United States, and probably
would have been, were it not that the desire to avoid such questions
of jurisdiction as were frequently arising between the French and the
English has made this Government unwilling to have recourse to such
a practice so long as the rights of its fishermen can be protected in
any other way.
The Government of the United States regrets to find that His
Majesty's Government has now taken a much more extreme position
than that taken in the last active correspondence upon the same ques-
tion arising under the provisions of the Treaty or Washington. In
his letter of the 3rd April, 1880, to the American Minister in London,
Lord Salisbury said : —
"In my note to Mr. Welsh of the 7th November, 1878, I stated
'that British sovereignty as regards these waters, is limited in scope
by the engagements of the Treaty of Washington, which cannot be
modified or affected by any municipal legislation/ and Her Majesty's
Government fully admit that United States' fishermen have the right
of participation on the Newfoundland inshore fisheries, in common
with British subjects, as specified in Article Xylll of that Treaty.
But it cannot be claimed, consistently with this right of participation
in common with the British fishermen, that the United States' fisher-
men have any other, and still less that they have any greater, rights
than the British fishermen had at the date of the Treaty.
"If, then, at the date of the signature of the Treaty of Washington
certain restraints were, by the municipal law, imposed upon the
British fishermen, the United States' fisnermen were, by the express
terms of the Treaty, equally subjected to those restraints, and the
obligation to observe in common with the British the then existing
local laws and regulations, which is implied by the words 'in common/
attached to the United States' citizens as soon as they claimed the
benefit of the Treaty."
Under the view thus forcibly expressed, the British Government
would be consistent in claiming that all regulations and limitations
upon the exercise of the right of fishing upon the Newfoundland coast,
which were in existence at the time when the Treaty of 1818 was
made, are now binding upon American fishermen.
Farther than this, His Majesty's Government cannot consistently
go, and, farther than this, the Government of the United States can-
not go.
For the claim now asserted that the Colony of Newfoundland is
entitled at will to regulate the exercise of the American Treaty right
984 CORRESPONDENCE, ETC.
is equivalent to a claim of power to completely destroy that right.
This Government is far from desiring that the Newfoundland fish-
eries shall go unregulated. It is willing and ready now, as it has
always been, to join with the Government of Great Britain in agreeing
upon all reasonable and suitable regulations for the due control of the
fishermen of both countries in the exercise of their rights, but this
Government cannot permit the exercise of these rights to be subject
to the will of the Colony of Newfoundland. The Government of the
United States cannot recognize the authority of Great Britain or of
its Colony to determine whether American citizens shall fish on
Sunday. *The Government of Newfoundland cannot be permitted
to make entry and clearance at a Newfoundland custom-house and
the payment of a tax for the support of Newfoundland lighthouses
conditions to the exercise of the American right of fishing. If it be
shown that these things are reasonable the Government of the United
States will agree to tb^em, but it cannot submit to have them imposed
upon it without its consent. This position is not a matter of theory.
It is of vital and present importance, for the plain object of recent
legislation of the Colony of Newfoundland has been practically to
destroy the value of American rights under the Treaty or 1818. Those
rights are exercised in competition with the fishermen and merchants
or Newfoundland. The situation of the Newfoundland fishermen
residing upon the shore and making the shore their base of operations,
and of the American fishermen coming long distances with expensive
outfits, devoting long periods to the voyage to the fishing grounds
and back to the market, obliged to fish rapidly in order to make up
for that loss of time, and making ships their base of operations, are so
different that it is easy to frame regulations which will offer slight
inconvenience to the dwellers on shore and be practically prohibitory
to the fishermen from the coasts of Maine and Massachusetts; and,
if the grant of this competitive right is to be subject to such laws as
our competitors choose to make, it is a worthless right. The Premier
of Newfoundland in his speech in the Newfoundland Parliament, de-
livered on the 12th April, 1905, in support of the Foreign Fishing Bill,
made the following declaration: —
"This Bill is framed specially to prevent the American fishermen
from coming into the bays, harbours, and creeks of the coast of New-
foundland for the purpose of obtaining herring, caplin, and squid for
fishing purposes."
And this further declaration: —
"This communication is important evidence as to the value of the
position we occupy as mistress of the northern seas so far as the fish-
eries are concerned. Herein was evidence that it is within the power
of the Legislature of this Colony to make or mar our competitors to
the North Atlantic fisheries. Here was evidence that by refusing or
restricting the necessary bait supply, we can bring our foreign com-
petitors to realize their dependency upon us. One of the objects of
this legislation is to bring the fishing interests of Gloucester and New
England to a realization of their dependence upon the bait supplies
of this Colony. No measure could have been devised having more
clearly for its object the conserving, safeguarding, and protecting of
the interests of those concerned in the fisheries of the Colony."
It will be observed that there is here the very frankest possible dis-
avowal of any intention to so regulate the fisheries as to be fair to the
PERIOD FROM 1905 TO 1909. 985
American fishermen. The purpose is, under cover of the exercise of
the power of regulation, to exclude the American fishermen. The
Government of the United States surely cannot be expected to see
with complacency the rights of its citizens subjected to this kind of
regulation.
The Government of the United States finds assurance of the desire
of His Majesty's Government to give reasonable and friendly treat-
ment to American fishing rights on the Newfoundland coast in the
statement of the Memorandum that the Newfoundland Foreign Fish-
ing-Vessels Act is not as clear and explicit as, in the circumstances,
it is desirable that it should be, and in the expressed purpose of His
Majesty's Government to confer with the Government of Newfound-
land with the object of removing any doubts which the Act, in its
present form, may suggest as to the power of His Majesty to fulfil his
obligation under the Convention of 1818. It is hoped that, upon this
Conference, His Majesty's Government will have come to the con-
clusion, not merely that the seventh section of the Act, which seeks
to preserve ' ' the rights and privileges granted by Treaty to the sub-
jects of any State in amity with His Majesty," amounts to a pro-
hibition of any "vexatious interference" with the exercise of the
Treaty rights of American fishermen, but that this clause ought to
receive the effect of entirely excluding American vessels from the
operation of the first and third clauses of the Act relating to searches
and seizures and prima facie evidence. Such a construction by His
Majesty's Government would wholly meet the difficulty pointed out
in my letter of the 19th October, as arising under the first and third
sections of the Act. A mere limitation, however, to interference
which is not "vexatious," leaving the question as to what is "vexa-
tious interference" to be determined by the local officers of Newfound-
land, would be very far from meeting the difficulty.
You will inform His Majesty's Government of these views, and ask
for such action as shall prevent any interference upon any ground by
the officers of the Newfoundland Government with American fisher-
men when they go to exercise their Treaty rights upon the Newfound-
land coast during the approaching fishing season.
I am, &c.
(Signed) ELIHU ROOT.
Mr. Wliitelaw Reid to Sir Edward Grey.
AMERICAN EMBASSY,
London, July 20, 1906. (Received July 23.)
SIR: The Memorandum sent me on the 2nd February, 1906,
embodying the views of His Majesty's Government on the proposi-
tions formulated by the Secretary ot State of the United States as to
the rights of American fishing-vessels on the Newfoundland coast, in
his letter to Sir Mortimer Durand of the 19th October, 1905, has had
Mr. Root's careful consideration.
He has now addressed me a letter, under date of the 30th June,
1906, giving the reasons which prevent his agreement with several of
the views stated in this Memorandum. I am instructed, while com-
municating to you these reasons, to ask for such action as shall pre-
986 CORRESPONDENCE, ETC.
yent any interference upon any ground by the officers of the New-
foundland Government with American fishermen, when they go to
exercise their Treaty rights upon the Newfoundland coast during the
approaching fishing season.
I beg to inclose herewith a copy of this letter from the Secretary of
State of the United States.
I have, &c.,
(Signed) WHITELAW REED.
Lord Elgin to Governor MacGregor.
DOWNING STREET, August 6, 1906.
SIR: I have the honour to forward, to be laid before your Ministers,
copy of a note from the United States' Ambassador at this Court,
inclosing copy of a letter from Mr. Root which sets out the views of the
United States' Government as to the conditions on which the rights
of American fishermen under the Convention of 1818 are to be exer-
cised.
2. Copies of the Memorandum of his Majesty's Government which
Mr. Root's letter discusses were forwarded to you on the 15th Feb-
ruary last.
3. Mr. Root's letter is engaging the careful attention of His Maj-
esty's Government. I will communicate with you again as soon as I
am in a position to state the decision to which they have come in the
matter.
I have, &c. (Signed) ELGIN.
Lord Elgin to Governor MacGregor.
[Telegraphic.]
DOWNING STREET, August 8, 1906.
Copies went to you by last mail of communication from United
States' Government in which thev contend that Convention of 1818
justifies no interference, reasonable or unreasonable, with exercise of
American rights of fishery, and request His Majesty's Government to
prevent any interference upon any ground by officers of Newfound-
land Government with American fishermen when they go to exercise
their Treaty rights upon the coast of Newfoundland during approach-
ing fishing season. They disclaim desire that Newfoundland fish-
eries shall go unregulated, and express their readiness to join with
His Majesty's Government in agreeing upon all reasonable and suit-
able regulations for due control of fishermen of both countries in
exercise of their rights, but state that they cannot permit exercise of
these rights to be subject to will of Newfoundland. Pending such an
agreement, the furthest they are prepared to go is to accept such
limitations as were in existence at time Convention of 1818 was con-
cluded, and in support of this position appeal to Lord Salisbury's
note to United States' Minister of the 3rd April, 1880, in connection
PEKIOI> FROM 1905 TO 1909. 987
with disturbances at Fortune Bay. Light dues were presumably not
levied in 1818, seines were apparently in use, the prohibition of
Sunday fishing had been abolished in 1776 (see 15 George III, cap.
31), and fishing-ships were exempted from entry at Custom-house,
and required only to make a report on first arrival and on clearing
(see same Act). United States' vessels could, on the basis of the
status quo in 1818, only be asked to make report at custom-house on
arrival and on clearing.
It is clear that with such a wide divergence of view between the
two Governments no immediate settlement of questions involved is
possible, and His Majesty's Government are of opinion that any
attempt on part of your Government to apply to American fishermen
the Regulations to which exception is taken by the United States'
Government while the discussion of the questions is proceeding be-
tween the two Governments might give rise to a highly undesirable
and even dangerous situation, and that it is therefore essential that
some Provisional Arrangement should be made to secure the peace-
able conduct of the coming fishery. His Majesty's Government are
therefore informing United States' Government that they are pre-
pared, pending the further discussion of questions at issue and without
prejudice to such discussion, to negotiate a Provisional Arrangement
which will enable the ensuing fishery to be carried on in good order
and friendship, and that they will shortly submit proposals with that
object. Please report whether your Ministers have any suggestions
to offer as to the nature of that Arrangement. It seems to be certain
that if your Ministers press for prohibition both of seines and of
Sunday fishing some concessions other than exemption from light
dues and Customs law will be expected. Can any such concessions
be offered? If not, there is little prospect that both points will be
conceded by United States, and as greater possibility of disorder is
understood to be attached to Sunday fishing, it would seem better to
try and obtain assent of United States to prohibition of this practice
in return for use of seines. Have your Ministers any observations as
to any fair and reasonable limitations or conditions to be imposed on
use of seines if this course is adopted ? Telegraph reply immediately.
Sir Edward Grey to Mr. Reid.
FOREIGN OFFICE, August 14, 1906.
YOUR EXCELLENCY: The note which you were so good as to
address to me on the 20th ultimo, forwarding a letter from Mr.
Secretary Root respecting the rights of American fishing-vessels on
the Newfoundland coast, is receiving the careful consideration of
His Majesty's Government, and they have observed with much
regret that the wide divergence of views between the two Govern-
ments which is disclosed by the correspondence makes it hopeless
to expect an immediate settlement of the various questions at issue.
Pending the further discussion of these questions, however, and
without prejudice to it, His Majesty's Government are prepared, in
accordance with the suggestion made in Mr. Root's letter, to confer
with the United States' Government, with a view to some arrange-
ment which will secure the peaceable and orderly conduct of the
988 CORRESPONDENCE, ETC.
forthcoming fishery, and they hope vci , shortly to be able to submit
proposals with this object. I may add that such an arrangement-
would be merely in the nature of a modus Vivendi, applicable only to
the ensuing season, and would not in any way affect any of the rights
and claims of either party.
I have, &c. (Signed) EDWARD GREY.
Mr. Reid to Sir Edward Grey.
AMERICAN EMBASSY, LONDON,
August 16, 1906. (Received August 18.}
SIR: I have the honour to acknowledge your letter of the 14th
instant regretting that, owing to the wide divergence from your views
disclosed in Mr. Root's letter respecting the rights of American vessels
on the Newfoundland coast, it is hopeless to expect an immediate
settlement.
I am glad to note that under these circumstances vou expect soon
to submit proposals for a modus vivendi for the ensuing season, and
shall hasten to advise my Government of this purpose.
I have, &c.
(Signed) WHITELAW REID.
Lord Elgin to Governor MacGregor.
[Telegraphic.]
DOWNING STREET, September 8, 1906.
His Majesty's Government have received with much disappoint-
ment your telegram of the 19th August. They cannot but feel that
your Ministers have failed to appreciate serious difficulty in which
their policy has placed both them and His Majesty's Government.
I will return a full reply to your Ministers' statement by mail in due
course. In the meantime, please remind them of Lord Kimberley's
speech in the House of Lords in 1891, in which, when discussing the
course taken by Lord Salisbury's Government, he said, "While the
negotiations are proceeding with France, it is plainly necessary that
there should be a truce until the respective rights are specifically
ascertained. The modus vivendi does not in any way infringe the
assurance given by Mr. Labouchere to the Colony, for the modus
vivendi is not for the purpose of making new Treaty arrangements,
but for the purpose of ascertaining what the existing Treaty engage-
ments are."
His Majesty's Government have decided to act on the principles
indicated in those remarks, which not only had been adopted by the
then British Government, but also represented the consensus of
opinion of both political parties at the time, and are accordingly pro-
posing to United States' Government modus vivendi under which,
on the one part, Foreign Fishing Vessels Act, 1906, will remain in
abeyance, first part of section 1 of Act of 1905 and whole of section
3 will be held not to apply to United States' fishing- vessels, and light
PERIOD FROM 1905 TO 1909. 989
dues will be waived; and, on the other, United States' vessels will
report at custom-house on entry and on clearance, and United States'
fishermen will comply with colonial fishery regulations.
As regards call at custom-house, your Ministers are of course aware
that the negotiations which led up to the Convention of 1818 virtually
bind His Majesty not to exact customs duties in respect of goods on
board United States' vessels necessary for prosecution of fishery,
and support of fishermen during fishery, and during voyages to
and from fishing grounds.
His Majesty's Government hope that United States' Government
will accept proposal outlined above, but wish to warn your Ministers
that some further concessions may be necessary if a modus vivendi
is to be arranged. In that event they trust that your Ministers will
assist the efforts of His Majesty's Government to reach some settle-
ment which will obviate the grave difficulties and dangers to be
apprehended in the course of the ensuing fishery.
Lord Elgin to Governor MacGregor.
[Telegraphic.]
DOWNING STREET, September 8, 1906.
Referring to my telegram of even date, please state whether your
Ministers, in the event of the negotiations for a modus vivendi break-
ing down, are prepared to indemnify His Majesty's Government
against any claims for compensation which may ~be preferred by
United States' Government, and which it may not be possible con-
sistently with a fair interpretation of Treaty rights to refuse; also
whether, in the event of a reference to arbitration becoming in the
opinion of His Majesty's Government necessary or desirable, your
Ministers will agree to such reference, and undertake to meet expenses
of arbitration and pay the award, if any.
Sir Edward Grey to Mr. Reid.
FOREIGN OFFICE, September S, 1906.
YOUR EXCELLENCY : In my note of the 14th August I stated that His
Majesty's Government hoped shortly to be able to submit to the
Government of the United States proposals for a provisional Arrange-
ment, which would secure the peaceable and orderly conduct of the
forthcoming herring fishery on the coast of Newfoundland . I have
now the honour, on the understanding mentioned in my note, viz.,
that the Arrangement would be in the nature of a -modus vivendi to be
applicable onhr to the ensuing season, and not hi any way to affect the
rights and claims of either party to the Convention of 1818, to submit
the following proposals, viz.: —
(1.) His Majesty's Government will not bring into force "The
Newfoundland Foreign Fishing Vessels Act, 1906/' which imposes on
United States' fishing- vessels certain restrictions in addition to those
imposed by the Act of 1905.
990 CORRESPONDENCE, ETC.
(2.) The provisions of the first part of section 1 of the Act of 1905
as to boarding and bringing into port, and the whole of section 3 of the
same Act will not be regarded as applying to the United States'
fishing-vessels.
(3.) The United States' Government will in return direct their
fishermen to comply with the Colonial Fishery Regulations, as was in
fact done last year, with the exception of certain breaches of the pro-
hibition of Sunday fishing.
(4.) The demand for payment of light dues will be waived by His
Majesty's Government.
(5.) The United States' Government will direct the masters of
United States' fishing-vessels to comply with the provisions of the
Colonial Customs Law as to reporting at a customs-house, on arrival
in and departure from colonial waters.
2. As regards head (3) of this Arrangement, I would point out that
of the three restrictions which the Colonial Fishery Regulations
impose on the herring fishery in the waters open to United States'
fishermen, the first, viz., the prohibition of " purse" seines, is in force
in all the waters of the Colony. It is also in force in all the waters of
Canada. The second, the prohibition of herring traps, is also in force
in Placentia, St. Mary's and Fortunes Bays, and in the district of
Twillingate. The third, the prohibition of ' ' herring " semes, is in force
also subject to some reservations as to baiting purposes in the inner
waters of Placentia Bay, and in certain waters on the north-east
coast. The application of these three restrictions to the herring bays
of the west coast is, of course, prior to and not in any way connected
with the present policy of the Colonial Government, and His Majesty's
Government have the testimony of the naval officers who have been
employed on the Treaty Coast as to the destructive results of the use
of seines. His Majesty's Government therefore hope that the
United States' Government will recognize that His Majesty's Govern-
ment are, apart from any question of right, acting in the interests of
the continuation of the common fishery in proposing as a part of the
provisional Arrangement compliance with the three restrictions
mentioned.
The fourth restriction, viz., the prohibition of Sunday fishing, is of
general application throughout the Colony, and is also in force in
anada. Having regard to the duration of the fishing season and to
other circumstances, His Majesty's Government do not feel that
compliance with this prohibition involves any material inconvenience
to United States' fishermen. Dn the other hand, in view of the strong
feeling against Sunday fishing which prevails in the Colony, the dis-
regard of it is fraught with possibilities of serious disorder. It is
therefore hoped that the United States' Government will assist His
Majesty's Government in the maintenance of peaceable relations
between the two sets of fishermen by not countenancing any breach of
the prohibition during the ensuing season.
3. As regards head (5), as explained hi the Memorandum com-
municated to your Excellency on the 2nd February, a call at a cus-
toms-house, whether on entering or on leaving the waters of the
Colony, need involve no interference with a vessel's fishing operations,
and is in itself a requirement which may be reasonably made in the
interests not only of the colonial revenue but of the United States'
fishermen.
PEEIOD FROM 1905 TO 1909. 991
4. I trust that you will be able to inform me at an early date that
the Arrangement outlined above is agreed to by your Government.
I have, &c. (Signed) EDWARD GREY.
Governor MacGregor to Lord Elgin.
[Telegraphic.]
[Received September 8, 1906.}
Referring to your telegrams of the 3rd September, chief desire of
my responsible advisers is to prevent our fishermen from selling fish
to or working for Americans. They earnestly urge proclamation of
Act No. 1 of 1906, and undertake to apply it only to our own people
and to leave in abeyance questions of the lighthouse dues, customs
entrance, nationality of American crews, purse seines, and under-
take preservation of peace, and without your sanction to enter into
no case against Americans. I am sending by next mail Minutes and
despatch.
Governor MacGregor to Lord Elgin.
[Telegraphic.]
[Received September 15, 1906.]
I am desired by my Ministers to state that they have learned with
profound regret that His Majesty's Government has, without refer-
ence to this Colony, proposed to the United States' Ambassador, as
one of the terms of a modus vivendi, the suspension of the Foreign
Fishing- Vessels Act this year, which was only adopted after consulta-
tion with His Majesty's Government and mainly with a view to
enable the Government of this Colony to deal with the local fisheries
and thus secure during the coming autumn peaceable conduct of the
fisheries.
They respectfully submit that any arrangement embracing the
suspension of that Act interferes with the internal affairs of the
Colony and is in violation of the pledge furnished by Lord Salisbury
through the British Parliament of the 5th May, 1891, during the
debate on Newfoundland Fisheries Bill, "that the Government of
this Colony is given unlimited power with respect to its internal
affairs." They had hoped and expected that before a modus vivendi
was proposed to the United States' Government a full text of the
same would have been submitted to this Government and thus have
afforded an opportunity for suggestion or remonstrance. They also
submit that the reasonableness of this expectation was warranted
by the statement of Lord Salisbury in the debate on the Newfound-
land Fisheries Bill of the 28th April, 1891. The suspension of the
Act under reference renders them entirely powerless to carry out
their fisheries policy and to secure that peaceable conduct of the
fisheries during the coming season for which so much anxiety has
been expressed by His Majesty's Government.
992 CORRESPONDENCE, ETC.
Lord Elgin to Governor MacGregor.
[Telegraphic.]
DOWNING STREET, September 19, 1906.
United States' Ambassador has presented Memorandum on subject
of modus vivendi, of which following is substance: First, it expresses
appreciation of readiness to waive Foreign Fishing- vessels Act, 1906,
and points out that this and other restrictive legislation had com-
pelled United States' fishermen to use purse-seines or abandon their
rights; second, it acknowledges cordial disposition evinced by offer
not to apply section 3 and first part of section 1 of Act of 1905;
third, United States' fishermen will gladly pay light dues if not hin-
dered in their right to fish, and are not unwilling to comply with
regulation to report at custom-houses when possible, but it is remarked
that it is sometimes physically impossible to break through ice for
that purpose; fourth, as regards purse-seines and Sunday fishing,
very grave difficulties present themselves, since if both these are
taken away there might be, as things stand, no opportunity for profit-
able fishing under United States' Treaty rights. United States'
Government are convinced that purse-seines are no more injurious
to common fishery than gill nets ; are not, in fact, so destructive, and
do not tend to change migratory course of herring as gill nets do
through death of large percentage of catch and consequent pollution
of water. The small amount of purse-seining could not of course
materially affect common fishery this season; besides, many United
States' fishermen have already sailed with purse-seines as usual, and
the others are already provided with them. This use of purse-seines
was not free choice of United States' fishermen, they have been driven
to it by local regulations, and continued use of it at this late date,
this year seems vital. United States' Government will, however,
renounce Sunday fishing for this season if His Majesty's Government
will consent to use of purse-seines, and they cannot too strongly urge
acceptance of this solution. (End of substance of Memorandum.)
His Majesty's Government propose to consent to use of purse-
seines, subject of course to due regard being paid to other modes of
fishery, and earnestly trust that your Ministers will see their way
to agree to this course, and to pass regulation temporarily removing
prohibition of use of purse-seines. If your Ministers fall in with this
proposal, His Majesty's Government will be happy to endeavour to
arrange with United States' Government that practice of engaging
Newfoundland fishermen just outside 3-mile limit, which to some
extent prevailed last year, should not be resorted to this year.
Telegraph reply as soon as possible.
Lord Elgin to Governor MacGregor.
[Telegraphic.]
DOWNING STREET, September 19, 1906.
Referring to your telegram of the 15th September, I am sending
full reply by mail. I would like, in the meantime, to observe, first,
that Lord Salisbury's speech referred to drew clear distinction be-
PERIOD FROM 1905 TO 1909.
tween internal affairs of Colony and matters of international interest,
and insisted strongly on right of Imperial Government to intervene
in matters coming within latter category; secondly, I have never
admitted, and cannot admit, that "Foreign Fishing- Vessels Act,
1906," comes within former category; thirdly, like my predecessor,
I have never approved policy embodied in Act of 1905, nor have I
ever given any indication that I should be prepared to advise His
Majesty in Council to bring into operation amended Act of 1906.
Lord Elgin to Governor MacGregor.
DOWNING STREET, September 20, 1906.
SIR: I have the honour to acknowledge the receipt of your tele-
gram of the 15th instant, in which your Ministers complain of the
action of His Majesty's Government in the matter of the proposed
fishery modus vivendi with the United States' Government.
2. Your Ministers submit that any arrangement involving the
suspension of "The Foreign Fishing Vessels Act, 1906," is an inter-
ference with the internal affairs of the Colony, which violates the
pledge given by the late Lord Salisbury in the House of Lords in 1891,"
to the effect that the Colony had been given unlimited power with
respect to its internal affairs.
3. In the speech referred to Lord Salisbury drew a clear and precise
distinction between the internal affairs of the Colony and matters of
international and outside interest, and insisted strongly on the right
of the Imperial Government to intervene in questions touching the re-
lations of the Empire with foreign States. I am compelled therefore
to infer that your Ministers regard the enforcement of the provisions
of "The Foreign Fishing-Vessels Act, 1906," on United States' fish-
ermen as a matter of purely local concern.
4. I am at a loss to discover the grounds on which they hold that
view, and I regret that I am unable to record my assent to it. It will
be within your recollection that when you informed me in February
last of the intention of your Ministers to propose to the Colonial
Legislature additional legislation to prevent British subjects resident
in the Colony from fishing for American vessels, and suggested that
such legislation would be regarded by His Majesty's Government as
a matter of local concern, I replied that I held the contrary view and
that His Majesty's Government, as responsible for the proper carrying
out of the provisions of Article I of the Convention of 1818, were
closely and directly interested in any legislation intended to define
the conditions on which the rights of the inhabitants of the United
States under that Article were to be exercised.
5. Your Ministers state that the Act of 1906 was passed after
consultation with His Majesty's Government. This remark appears
to me to require qualification. The only provisions of the Act with
which His Majesty's Government have identified themselves are those
which exempt vessels exercising Treaty rights of fishery from the
application of section 3 and the first part of section 1 of the Act of
1905. It is true that all the other amendments of the Act of 1905
drawn up by your Ministers were submitted to His Majesty's Gov-
ernment, and that in order to remove certain obvious objections to
U2909-— fcs. Doc. 870, 61-3, \ul 3 24
994 CORRESPONDENCE, ETC.
your Minister's proposals, His Majesty's Government suggested
some alterations which were eventually embodied in the Act of 1906.
But His Majesty's Government were careful at the same time to
explain that their action in suggesting these alterations was not to
be understood as in any way prejudicing the consideration of the Act
when passed, or as in any way identifying His Majesty's Government
with the policy of your Ministers, which they did not approve and
which they did not believe to be in the interests even of the Colony
itself.
6. The Act as passed provided that it should not be brought into
operation until approved and confirmed by His Majesty in Council.
In the circumstances which I have described it was at least uncertain
whether His Majesty's Government would be prepared to take upon
themselves the responsibility of bringing the Act into operation,
and when the reply of the United States' Government to the British
Memorandum was received and it became necessary, owing to the
great divergence of view between the two Governments which it
disclosed, to arrange a modus vivendi, it was clearly out of the question
to complicate the situation, which it was the object of the modus
vivendi to relieve, by imposing on United States' fishermen the addi-
tional restrictions contemplated by the Act.
7. It would be a source of great regret to me if in this or any other
matter His Majesty's Government should fail either in respect for
the constitutional rights of the Colony or in courtesy towards your
Ministers. As to the right of His Majesty's Government to allow
the Act to remain in suspense there can, I submit, be no doubt, and
the decision to do so was communicated to you at the same time as
to the United States' Ambassador.
8. I asked in my telegram of the 8th August whether your Ministers
had any suggestions to make as to the nature of the proposed modus
vivendi. By your telegram of the 19th August your Ministers
informed me that they could not consent to any relaxation of the laws
of the Colony in favour of United States' fishermen, and that they
strongly deprecated any provisional arrangement with the United
States' Government, and urged that the Act of 1906 should be brought
into force at once. In your telegram of the 22nd August your Min-
isters again urged that the Act of 1906 should be brought into force,
and again deprecated any provisional arrangement. The question
of the payment of Light dues, they added, might remain in abeyance,
but they could not acquiesce in any evasion of the customs and fishery
laws. His Majesty's Government were thus left to their own un-
aided devices to discover and arrange, in the very short time remain-
ing before the commencement of the fishery, a basis for a modus
vivendi with the United States' Government, but the proposals which
they made to the United States' Government on the 3rd instant
included no concessions which your Ministers were not prepared
to make, apart from the suspension of the Act of 1906, and that, as
I have already pointed out, was entirely within the discretion of His
Majesty's Government. It was not until some days after these pro-
posals had been submitted to the United States' Government that
your Ministers evinced any readiness to consider a modus vivendi.
They then informed me that provided the Act of 1906 was brought
into force, they were prepared to give way on practically all the
questions in dispute. This intimation unfortunately came too late,
PERIOD FROM 1905 TO 1909. 995
and while I regret that the proposals made to the United States'
Government do not commend themselves to your Ministers, I cannot
but feel that in the circumstances no blame can fairly be imputed
to His Majesty's Government.
I have, &c. (Signed) ELGIN.
Governor MacGregor to Lord Elgin.
[Telegraphic.]
[Received September 21, 1906.]
My responsible advisers request me to transmit following message : —
" With reference to your telegram of the 19th instant. For the
reasons that have been fully set forth in previous Minutes, Ministers
regret they are unable to become consenting parties to modus vivendi
with the United States' Government. They entirely dissent from the
views expressed by United States' Government in respect to usage of
purse seines and their effect upon the herring fishery, but as stated in
despatch from his Excellency the Governor to the Secretary of State
for Colonies of date 7th instant, in which Ministers fully concurred,
if His Majesty's Government consent to their use by American fisher-
men, then, while fully recognizing the evils likely to result, this
Government will be obliged, in justice to the people of this Colony, to
pass a Regulation removing the prohibition or the usage of purse
seines so that competiton with Americans may be possible for local
fishermen."
Sir Edward Grey to Sir M. Durand.
FOREIGN OFFICE, September 26, 1906.
SIR: Your Excellency is already aware that I had communicated
to the American Ambassador a Memorandum containing the views of
His Majesty's Government on the proposed modus vivendi on the sub-
ject of the Newfoundland fisheries.
On receipt of this communication, of which a copy was inclosed in
my despatch of the 14th September, Mr. Whitelaw Reid called yester-
day and said he had every reason to hope that the terms therein pro-
posed would be accepted by his Government. He was not, however,
quite sure as to what was meant by interference of purse seines with
other modes of fishing.
As to that part of the Memorandum dealing with the enlistment of
Newfoundlanders outside the 3-mile limit, he expressed his personal
conviction that his Government would do all that lay in their power
to prevent the exasperation and irritation which is naturally caused by
such proceedings just outside the limit; but he wished to throw out a
suggestion, that the best way to avoid such irritation would be to
waive temporarily that clause in the Act of 1905, which makes it
illegal to enlist men within the 3-mile limit.
He pointed out that nothing could prevent the American captains
from enlisting men outside the territorial waters of Newfoundland,
and that to waive the application of the latter part of the first section
996 CORRESPONDENCE, ETC.
of the Act would prevent disputes cropping up, and would promote
peace and harmony on the coast of Newfoundland.
I am, &c.
(Signed) EDWARD GREY.
Lord Elgin to Governor MacGregor.
[Telegraphic.]
DOWNING STREET, September 29, 1906.
His Majesty's Government were much disappointed by your tele-
gram of 21st September, but felt that, under the circumstances, there
was no alternative to course indicated in my telegram of 19th Septem-
ber. United States' Ambassador was informed accordingly on 25th
September that His Majesty's Government consent to use of purse
semes on the condition stated, and at same time His Majesty's
Government expressed hope that recruiting just outside territorial
waters will not be resorted to this year. Copy of communication
will be sent by next mail.
Governor MacGregor to Lord Elgin.
[Telegraphic.]
[Received, September 29, 1906.]
My responsible advisers request me to transmit f ollwing message : —
"Minister of Finance has received information to-day by telegraph
from the Sub-Collector of Customs at Bonne Bay, stating that an
American schooner has arrived equipped with purse seines and declines
to pay light dues, and desiring to be advised whether the laws are to
be enforced. Ministers are placed in a most embarrassing position,
not knowing whether agreement has been arrived at between His
Majesty's Government and that of the United States by which
Americans may use such seines and are exempt from payment of
light dues. They desire to be advised promptly as to the exact posi-
tion of affairs, and whether they are free to enforce the customs and
fisheries laws of this Colony against American fishermen."
Lord Elgin to Governor MacGregor.
[Telegraphic.]
DOWNING STREET, October 1, 1906.
Will answer your telegram of 29th September as soon as possible.
In meantime, please inform your Ministers that United States
Ambassador has suggested privately, but not as on behalf of his
Government, that in order to minimize inconveniences and discontent
arising from use of purse seines by United States' fishermen and the
shipping of Newfoundland fishermen outside 3-mile limit, following
arrangement might be adopted — viz., Newfoundland Government to
PERIOD FROM 1905 TO 1909. 997
suspend for this season prohibition to engage crews in territorial
waters, in return for which United States' vessels would stop using
purse seines after 1st November, by which time they would have
engaged enough men to work with nets only. Would your Ministers
be prepared to entertain such an arrangement?
Sir Edward Grey to Sir M. Durand.
FOREIGN OFFICE, October 1, 1906.
SIR: I told Mr. Carter to-day that the suggestion contained in
Mr. Whitelaw Reid's private letter, to suspend the clause in Section 1
of the Act of 1905 which prevented American vessels from recruiting
fishermen in Newfoundland waters, if the Americans in return would
stop using purse seines after the 1st November, had been telegraphed
to the Colony by the Colonial Office. If the Colonial Government
accepted the suggestion at once, there would be no difficulty about
including it in the modus vivendi, but in view of the fact that the
legislation of 1906 in the Colony had been suspended, and that this
had been done with very great reluctance, I assumed that the point
now raised would have to depend entirely on the opinion or the
Colony with regard to it.
Mr. Carter asked me whether he was to understand that we wished
the modus vivendi to be absolutely concluded and put in force at once,
without waiting for the new point to be settled.
I said I should like not to answer this question until I had con-
sulted the Colonial Office as to whether they desired to wait for the
reply of the Colony on the new point now raised or not, but I would
send a reply in a day or two.
I am, &c. (Signed) EDWARD GREY.
Governor MacGregor to Lord Elgin.
[Telegraphic.]
[Received October 4, 1906.]
I have been asked by my responsible advisers to transmit follow-
ing Minute : —
"Referring to your telegram of 1st October, my responsible advisers
anxiously await a reply to their Minute of the 28th ultimo, in which
they desired to be advised promptly as to the exact position of
affairs, and whether they are free to enforce the Customs and Fisheries
Laws of this Colony against American fishermen. They would
most strongly deprecate any arrangement consenting to tne use of
purse-seines by American fishermen and to shipping of Newfoundland
fishermen, and they are not prepared to consent to local fishermen
being engaged to work for Americans in the conduct of fisheries of
this Colony. By such a concession the policy of this Government
in respect to herring fishery, which received such marked indorse-
ment at the polls in 1904, and is rightly considered by mercantile
body as of vital interest to the trade of the Colony, would be com-
pletely thwarted. A telegram received from the Sub-Collector
998 CORRESPONDENCE, ETC.
of Customs at Port Saunders to-day states that American schooners
'Nonna' and 'Annie M. Parker' from Gloucester arrived that morn-
ing and were preparing to seine and net herring for export, and had
refused to pay light dues. In another communication from the
Sub-Collector of Customs at Bay of Islands, it is stated that Captain
Bonia of Gloucester, special agent for Gloucester firms, arrived
there by railway on the 28th ultimo, and is engaging men and hiring
boats for the full fishery. My responsible advisers again earnestly
pray that His Majesty's Government will permit the proclaiming of
sections 6 and 7 of 'The Foreign Fishing- Vessels Act, 1906,' so as to
enable them to deal with local fisheries, for it is entirely evident that
disorder cannot be avoided and the peaceable conduct of the fisheries
maintained in any other way."
I have asked my responsible advisers [to] tell me, for your informa-
tion, from what quarter, at what places, and under what circum-
stances disorder is expected, and what measures to preserve peace
are being taken.
Memorandum communicated by the Foreign Office to Mr. Carter,
October 4, 1906.
The proposals contained in Mr. Whitelaw Reid's private letter for
the suspension of the recruiting clause in section 1 of the Act of
1905, ir United States' fishermen would refrain from using purse
seines after the 1st November, have been considered by the New-
foundland Government, ' but they find themselves quite unable to
accept them.
In these circumstances His Majesty's Government would be glad
to be favoured, at the earliest possible moment, with the views of
the United States' Government on the modus vivendi proposals
contained in Sir E. Grey's Memorandum of the 25th September in
order that, if they are accepted, the Colonial Government and United
States' fishermen may both be made acquainted at once with the
terms of the arrangement proposed, and the necessary instructions
given for its observation.
FOREIGN OFFICE, October 4, 1906.
Governor MacGregor to Lord Elgin.
[Telegraphic.]
[Received October 5, 1906.]
With reference to the last part of my telegram of the 3rd instant,
my responsible advisers inform me that they have been apprized
that the people of Bay St. George and Bay of Islands regard the
usage of purse seines with great disfavour and alarm, and as destruc-
tive to their means of livelihood, and threats to destroy them have
been expressed. They hold that if number of Newfoundland fisher-
men engage (to) Americans, the majority will resent this. The
Sub-Collector at the Bay of Islands writes that armed force will be
wanted, as certain naturalized resident American subjects advise
PERIOD FROM 1905 TO 1909. 999
the people to defy and ignore law. My responsible advisers hare
sent Inspector of Fisheries to examine position and report, so that
proper steps to preserve peace may be taken.
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 8 a. m., October IS, 1906.}
I am desired by my Responsible Advisers to transmit following
message : —
Begins: The Committee of Council have had under consideration
a telegram received by His Excellency the Governor from the Right
Honourable the Secretary of State for the Colonies announcing the
conclusion of a Modus Vivendi with the Government of the United
States. They desire to record their profound regret that His Majesty's
Government have seen fit to ignore their representations and en-
treaties, and to conclude an arrangement which is, they submit, sub-
versive of the Colony's constitutional rights and calculated to work
severe injury to the fisheries of the Colony. The Committee also
regard with alarm the Cabinet's consent to an arrangement which is
apparently intended to over-ride statutes that have received the
Royal Assent. They earnestly hope that the arrangement is not
beyond reconsideration by His Majesty's Government, and that by
annulling the arrangement the Colony may be saved from the humil-
iation and danger that threatens it. Minute ends. — MACGREGOK.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 11.40 a. m., October 2S, 1906.}
Your telegram of the 12th October.0 His Majesty's Government
deeply regret that modus vivendi which has been concluded with the
United States Government is not acceptable to your Ministers, but
they do not understand grounds on which they base their complaint
of subversion of constitutional rights and over-riding of statutes, and
they submit that in the circumstances the correctness of their action
cannot reasonably be called into question. In any case it is now too
late for them to attempt to withdraw from the arrangement and they
trust that your Ministers will do what lies in their power to see that
it is properly observed. — ELGIN.
o Received 13th October.
1000 CORRESPONDENCE, ETC.
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 10.25 p. m., October 26, 1906.)
I am requested by Ministers' minute transmit the following mes-
sage:—
With reference to your telegram of 23rd instant, my responsible
advisers desire to say that in the opinion which they have expressed
respecting the subversion of constitutional rights and over-riding of
colonial statutes they are supported by the opinion of the Minister
of Justice and of learned counsel of high standing in England, and
they propose, in accordance with the advice of said counsel, to test
the question as to whether the modus vivendi can over-ride existing
legislation of the Colony by taking legal proceedings against colonial
fishermen who have engaged themselves and proceeded in violation
of the law to prosecute the herring fishery.
I have endeavoured to ascertain reference to law under which it is
intended to proceed, and shall inform you. — MACGREGOR.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 7.40 p. m., October 27, 1906.)
Your telegram of 26th October. I shall be glad to have informa-
tion promised as soon as possible ; also to learn substance of opinions
referred to, and data on which they were based.
In the meantime please report to what extent provisions of Bait
Act making it illegal to haul, catch or take bait fishes for exportation
without licence are actually enforced on Colonial fishermen, how
many such licences have been granted to Colonial fishermen this
year, and whether there have been any prosecutions this year of
Colonial fishermen for taking bait fishes for exportation without
licence, and if so, how many? — ELGIN.
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 7.20 a. m., November 1, 1906.)
Referring to your telegram of 27th October, Ministers request me
to send you following message : —
Bait Act has been rigidly carried out throughout Colony. No
licences have been issued this year to local fishermen to allow them
furnish foreigners with bait, nor have any such licences issued in case
of the French since 1887 or in case of Americans since 1904, but last
year, in deference to desire of His Majesty's Government that this
Government should abstain during last season from any action likely
to cause friction between the United States fishermen and British
subjects no prosecutions were instituted against those who violated
PERIOD FROM 1905 TO 1909. 1001
Bait Act by engaging themselves to Americans to catch bait fishes
or who sold to Americans. Twenty Colonial fishermen have been
prosecuted this year for taking bait fishes for exportation without
licence.
Am informed by Prime Minister that English counsel intimates
that proceedings may be taken under Cap. 129, Consolidated Stat-
utes, of 1892, or under the Marine and Fisheries Act, 1898. —
MACGREGOR.
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 9 a. m., November 4, 1906.)
Minister of Justice has prepared instruction for Inspector, Bay of
Islands : —
Instruction begins: Government has decided on enforcement of
provisions of Bait Act during the present herring fishing Bay of
Islands. Government has been advised by me that Bait Act is not
in any way superseded by terms of modus vivendi entered into be-
tween His Majesty's Government and the Government of the United
States of America. I am desired to request that you will take action
immediately against any one of our fishermen who has violated
Bait Act. I have instructed Counsel proceed to Bay of Islands and
he will advise you as to proper form of summons, &c. Until Counsel
arrives you can consider most convenient way to effect service of
process on the party whom you may elect as the defendant in the
case. Instruction ends.
I have requested that instruction may be withheld till 7th Novem-
ber.— MACGREGOR.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 7.5 p. m., November 9, 1906.)
Your telegram, 3rd November.0 As your Ministers are well
aware, the Modus Vivendi was arranged with a view to the preven-
tion of action which would embitter the discussion proceeding be-
tween His Majesty's Government and the Government of the United
States as to the proper meaning of the treaty of 1818 — a discussion
rendered inevitable by the policy of your Ministers.
With full knowledge of these facts your Ministers have deliber-
ately decided to take action which may immeasurably increase the
difficulty of the task which Newfoundland has imposed upon Great
Britain. In these circumstances I have to inform your Ministers
that, in endeavouring to frustrate the purely temporary measures
which His Majesty's Government consider most likely to lead to a
successful termination of the negotiations with the United States,
they incur a grave responsibility which His Majesty's Government
o Received 4th November.
1002 CORRESPONDENCE, ETC.
decline to share. His Majesty's Government will endeavour in the
future, as in the past, to defend the claims of Newfoundland under
the treaty of 1818 to the best of their ability, but if the difficulties
in their way become increased your Ministers must bear the blame. —
ELGIN.
Mr. Reid to Sir Edward Grey.
AMERICAN EMBASSY,
LONDON, November 15, 1906.
DEAR SIR EDWARD : Here is the little private and unofficial memo-
randum promised yesterday.
Believe me, &c., WHITELAW REID.
[Enclosure.]
Points of Fact communicated confidentially and unofficially, in interview
of November 14th.
United States Fishery Agent in Newfoundland reported that on
12th November Colonial authorities summoned crew to appear at
Court, Birchy Cove, for enlisting outside three-mile limit. Captain
was inclined to ignore summons.
In answer to Agent's request for instructions, State Department
said that penal proceedings under such circumstances against men
shipped outside three-mile limit appeared plain violation of modus
vivendi, but Department could not believe Newfoundland Government
intended wholesale punishment of their own fishermen for seeking
means of livelihood with clear permission from British Government.
Department supposed whole purpose was to make a test case, and
instructed Agent to ascertain. If so, to avoid conflict or disturbance,
was willing, without waiving rights, to facilitate raising and disposi-
tion of the question in an orderly way, for which appearance of one or
two men in Court would be sufficient. If, on contrary, wholesale
arrests were intended, effect would be either to break up or seriously
interfere with fishing under the modus vivendi, and the Department
should be promptly informed.
Department explains desire to avoid any conflict that might excite
Colonial feeling or cause embarrassment in dealing with Colony. But
if Newfoundland Government really trying to break up fishing under
modus vivendi, United States could not permit men to be taken from
its ships. No doubt of Great Britain's full intention to enforce
respect for its agreement, but prompt action seemed necessary.
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 7.45 a. m., November 17, 1906.)
Referring to your telegram of 9th November, Responsible Ministers
send long reply, summary of which follows : —
(1) They do not see that any reason existed to justify modus
vivendi, which they think was unnecessary. They refer to. your tele-
PERIOD FROM 1905 TO 1909. 1003
gram of 8th August, which stated His Majesty's Government were
informing United States Government that His Majesty's Govern-
ment were prepared to negotiate for provisional arrangement, and
would shortly submit proposals, from which Responsible Ministers
infer that engagement to enter into modus vivendi was actually made
without reference to opinion of this Government. Responsible
Ministers saw they could not prevent the arrangement, but set forth
their views and pointed out that modus vivendi not necessary, and
guaranteed to maintain peace if His Majesty's Government did not
interfere with enforcement of statute law against local fishermen.
Under the circumstances Responsible Ministers find it impossible to
admit any responsibility for modus vivendi.
(2) Policy of this Government same for twenty years; to enforce
Bait Act against foreigners using bounties or prohibitive duties. In
the years 1890 and 1892 American Government undertook to cancel
duty on Newfoundland fish, and Newfoundland for fifteen years
gratuitously allowed Americans privileges to be conveyed [? continued]
under conventions mentioned. United States Government accepted
concessions of Newfoundland in the 1890 and 1892' Conventions as
quid pro quo for remission of duties, which shows United States Govern-
ment did not think that they had right to purchase bait fishes or
employ local fishermen under Treaty of 1818.
(3) Responsible Ministers hold opinion that it is their duty to this
people to test validity of an arrangement apparently intended to
render nugatory law of Colony, and set aside its constitutional rights.
In reply to your telegram 8th August, Responsible Ministers 10th
August, referred His Majesty's Government to despatch 26th March,
1857, which declares consent of Newfoundland essential preliminary
to any modification of territorial rights or maritime rights, and five
days later Responsible Ministers dealt fully with situation and sug-
gested alternative to proposed modus vivendi.
(4) Object of Responsible Ministers in instituting legal proceedings
under Bait Act as custodians of rights and privileges of public is to test
validity of arrangement which, in their opinion, is infringement of
constitutional rights of this Colony.
Responsible Ministers are very grateful for assurance that His
Majesty's Government will defend claims of Newfoundland under
Treaty of 1818, and they assure His Majesty's Government that no
unlawful act on their part shall arise to increase difficulties of His
Majesty's Government in carrying out this intention. (Summary
Minute of Council ends.)
Full text of Minute of Council been posted to-day's post by "Glas-
gow."— MACGREGOR.
Sir Edward Grey to Mr. Reid.
FOREIGN OFFICE, June 20, 1907.
SIR: On the 20th of July last, Your Excellency communicated to
me a letter addressed to you by Mr. Root in which he gave reasons
which prevented his agreement with the views of His Majesty's Gov-
ernment as to the rights of American fishing vessels in the waters of
Newfoundland under the Convention of 1818.
1004 CORRESPONDENCE, ETC.
No reply was returned at the time to the arguments contained in
this letter, as the divergence of views between the two Governments
made it hopeless to expect an immediate and definitive settlement of
the various questions at issue and it was essential to arrive at some
arrangement immediately which would secure the peaceable and
orderly conduct of the impending fishery season.
Upon the conclusion of the Modus Vivendi, His Majesty's Govern-
ment further deferred any additional observations on the questions
at issue until the arrival in this country of the Premier of New-
foundland to attend the Imperial Conference.
They have now had the advantage of a full discussion with Sir R.
Bond, and although His Majesty's Government are unable to modify
the views to which they have on various occasions given expression,
of the proper interpretation of the Convention of 1818 in its bearing
on the rights of American fishermen, they are not without hope, hav-
ing regard to the willingness of the United States Government from a
practical point of view to discuss reasonable and suitable regulations
for the due control of the fishermen of both countries, that an arrange-
ment may be arrived at which will be satisfactory to both countries.
I desire at the outset to place on record my appreciation of the
moderation and fairness with which Mr. Root has stated the American
side of the question and I shall in my turn endeavour to avoid any-
thing of a nature to embitter this long-standing controversy.
It will be convenient to recapitulate the main grounds of divergence
between the two Governments on the question of principle.
His Majesty's Government, on the one hand, claim that the Treaty
gave no fishing rights to American vessels as such, but only to inhabi-
tants of the United States and that the latter are bound to conform
to such Newfoundland laws and regulations as are reasonable and not
inconsistent with the exercise of their Treaty rights. The United
States Government, on the other hand, assert that American rights
may be exercised irrespectively of any laws or regulations which the
Newfoundland Government may impose, and agree that as ships
strictly speaking can have no rights or duties, whenever the term is
used, it is but a convenient or customary form ©f describing the owners'
or masters' rights. As the Newfoundland fishery, however, is essen-
tially a ship fishery, they consider that it is probably quite unim-
portant which form of expression is used.
By way of qualification Mr. Root goes on to say that if it is intended
to assert that the British Government is entitled to claim that, when
an American goes with his vessel upon the Treaty Coast for the pur-
pose of fishing, or with his vessel enters the bays or harbours or the
coast for the purpose of obtaining shelter, and of repairing damages
therein, or of purchasing wood, or of obtaining water, he is bound to
furnish evidence that all the members of the crew are inhabitants of
the United States, he is obliged entirely to dissent from any such
proposition.
The views of His Majesty's Government are quite clear upon this
point. The Convention of 1818 laid down that the inhabitants of
the United States should have for ever in common with the subjects
of His Britannic Majesty the liberty to take fish of every kind on the
coasts of Newfoundland within the limits which it proceeds to define.
This right is not given to American vessels, and the distinction is an
important one from the point of view of His Majesty's Government,
PERIOD FROM 1905 TO 1909. 1005
as it is upon the actual words of the Convention that they base their
claim to deny any right under the Treaty to American masters to
employ other than American fishermen for the taking of fish in New-
foundland Treaty waters.
Mr. Root's language, however, appears to imply that the condition
which His Majesty's Government seek to impose on the right of fishing
is a condition upon the entry of an American vessel into the Treaty
waters for the purpose of fishing. This is not the case. His Majesty's
Government do not contend that every person on board an American
vessel fishing in the Treaty waters must be an inhabitant of the
United States, but merely that no such person is entitled to take fish
unless he is an inhabitant of the United States. This appears to meet
Mr. Root's argument that the contention of His Majesty's Govern-
ment involves as a corollary that no American vessel would be entitled
to enter the waters of British North America (in which inhabitants
of the United States are debarred from fishing by the Convention of
1818) for any of the four specified purposes, unless all the members
of the crew are inhabitants of the United States.
Whatever may be the correct interpretation of the Treaty as to
the employment of foreigners generally on board American vessels,
His Majesty's Government do not suppose that the United States
Government lay claim to withdraw Newfoundlanders from the
jurisdiction of their own Government so as to entitle them to fish
in the employment of Americans in violation of Newfoundland laws.
The United States Government do not, His Majesty's Government
understand, put their claim higher than that of a "common" fishery,
and such an arrangement cannot override the power of the Colonial
Legislature to enact laws binding on the inhabitants of the Colony.
It can hardly be contended that His Majesty's Government have
lost their jurisdiction not only over American fishermen fishing in
territorial waters of Newfoundland, but also over the British sub-
jects working with them.
It may be as well to mention incidentally in regard to Mr. Root's
contention that no claim to place any such restriction on the French
right of fishery was ever put forward by Great Britain; that there
was never any occasion to advance it, for the reason that foreigners
other than Frenchmen were never employed by French fishing vessels.
The main question at issue is, however, that of the application of
the Newfoundland regulations to American fishermen. In this con-
nection the United States Government admit the justice of the view
that all regulations and limitations upon the exercise of the right of
fishing upon the Newfoundland Coast, which were in existence at
the time of the Convention of 1818, would now be binding upon
American fishermen. Although Mr. Root considers that to be the
extreme view which His Majesty's Government could logically assert,
and states that it is the utmost to which the United States Govern-
ment could agree, His Majesty's Government feel that thev cannot
admit any such contention, as it would involve a complete departure
from the position which they have always been advised to adopt as
to the real intention and scope of the treaties upon which the
American fishing rights depend. On this vital point of principle
there does not seem to be any immediate prospect of agreement with
United States views, and it would, therefore, seem better to endeavour
1006 CORRESPONDENCE, ETC.
to find some temporary solution of the difficulty as to the regulations
under which the Americans are to fish.
His Majesty's Government note with satisfaction Mr. Root's
statement that the American Government are far from desiring that
the fishery should go unregulated, and believing as they do that the
Newfoundland regulations have been framed with the intention of
preserving and maintaining the fishery in the most efficient and
productive condition, and for the prevention of practices that must
be detrimental to the common interests they propose to communi-
cate a copy of all the regulations that are now in force, and if there
is anything in these regulations which the United States Government
feel to bear hardly upon the American fishermen, His Majesty's
Government will gladly pay the utmost consideration to any Ameri-
can representations on the subject with a view to the amendment of
the regulations in the sense*desired, provided that such be consistent,
with the due preservation of the fishery.
Pending this examination of the regulations, His Majesty's Govern-
ment would propose the following arrangements as to the provisions
in the Newfoundland enactments that have been most discussed.
These are the obligation to report at a Custom House and to pay
light dues, and the prohibition to use purse seines, and to fish on
Sundays. Other regulations, such as the prohibition to throw
ballast or rubbish into the water frequented by herring, and to throw
overboard on the fishing ground fish offal, heads and bones, have
occasionally come in question, but are clearly reasonable, and are
not, it is believed, objected to by the United States Government.
Fishing at night is another question which has been discussed,
although it is not forbidden by the regulations. His Majesty's Gov-
ernment understand that by tacit consent among the fishermen
themselves fishing is not pursued at night, and with this arrangement
there seems no reason to interfere.
With regard to the entry and clearance of American vessels at
Newfoundland ports, I would remind Your Excellency that the
American vessels engaged in the winter fishery in the Bay of Islands
must pass hi close proximity to several Custom Houses, and that it
cannot be said that the obligation to report and clear unduly inter-
feres with the operations of the vessels. On this point, however, His
Majesty's Government would, in order to secure an arrangement for
the next fishing season, be prepared to defer discussion o£ the ques-
tion of right; but they would urge, on the other hand, that it would
be most advisable that American vessels should comply with the
regulation on the ground that unless the vessels enter at the Custom
Houses, the British authorities have no cognizance that they are in
Newfoundland waters, and that, as His Majesty's Government are
responsible for keeping the peace, it is important that they should
know exactly what American vessels are on the fishing grounds.
Moreover, the provision in question is clearly necessary for the pre-
vention of smuggling, and unless American vessels have made proper
entry at a Custom House, there is no means, short of searching the
vessels, of ascertaining whether they are really fishing vessels, and
not smugglers.
The next point in dispute is the prohibition of purse seines. His
Majesty's Government have the independent testimony of British
PERIOD FROM 1905 TO 1909. 1007
naval officers who have been employed on the Treaty Coast as to the
destructive results of their use; and they would, therefore, point out
that there is complete justification for the Colonial regulation.
I would, moreover, remind Your Excellency that the regulation is
is force in all the waters of the Colony of Newfoundland and of the
Dominion of Canada, and applies equally to all fishermen whether
they be Newfoundlanders or not. His Majesty's Government, there-
fore, feel that they cannot interfere with the enforcement of the
regulation which prohibits purse seines in the waters of Newfound-
land. They would also point out that fishing on Sundays is always
liable to lead to regrettable breaches of the peace, and they would
propose that the American fishermen should agree to abstain from
this practice.
Finally, His Majesty's Government feel that the payment of light
dues by an American vessel entering a port of the Colony clearly
does not involve an unreasonable interference with the exercise of
the treaty rights of the American fishermen on board. These dues
are payable by all vessels of whatever description and nationality,
other than coasting and fishing vessels owned and registered in the
Colony. As, however, vessels of the latter class are under certain
conditions exempt either wholly or in part from payment, His
Majesty's Government consider that i't would be unfair to introduce
any discrimination against American vessels in this respect, and it is
proposed that the demand for light dues should be waived under the
same conditions as in the case of the Newfoundland vessels.
I venture to express the hope that the temporary arrangement out-
lined above will be agreed to by the United States Government.
I have, &c.,
E. GREY.
His Excellency the Honourable WHITELAW REID, &c., &c., &c.
Mr. Reid to Sir Edward Grey.
AMERICAN EMBASSY, LONDON, July 12, 1907.
SIR: Referring to your letter of June 20th, in relation to the New-
foundland Fisheries, I beg to say that while its propositions seemed
so much in conflict with our views on the subject that my previous
instructions would have enabled me to make an immediate reply, I
hastened to lay them before my Government.
Before communicating the result I desire to acknowledge and recip-
rocate to the full the kindly expressions you have been good enough
to use as to the moderation and fairness with which Mr. Root has
stated the American side of the case. We have had the same appre-
ciation of your conduct of the discussion, and we share your wish to
bring the long-standing controversy on the subject to a satisfactory
conclusion without having added anything tending in the slightest
degree to embitter it.
But with the utmost desire to find in your last letter some practical
basis for an agreement, we are unable to perceive it. Acquiescence
in your present proposals would seem to us equivalent to yielding all
the vital questions in dispute, and abandoning our fishing rights on
the coast of Newfoundland under the Treaty of 1818.
1008 CORRESPONDENCE, ETC.
Without dwelling on minor points, on which we would certainly
make every effort to meet your views, I may briefly say that in our
opinion, sustained by the observations of those best qualified to judge,
the surrender of the right to hire local fishermen, who eagerly seek to
have us employ them, and the surrender at the same time of the use
of purse seines and of fishing on Sunday would, under existing circum-
stances, render the Treaty stipulation worthless to us.
My Government holds this opinion so strongly that the task of
reconciling it with the positions maintained in your letter of June 20th
seems hopeless.
In this conviction my Government authorises me, and I now have
the honour, to propose a reference of the pending questions under the
Treaty of 1818 to arbitration before the Hague Tribunal.
We have the greater reason to hope that this solution may be agree-
able to you since your Ambassador to the United States recently sug-
gested some form of arbitration, with a temporary modus vivendi
pending the decision, as the best way of reaching a settlement. We
hope also that the reference of such a long-standing question between
two such nations at such a time to the Hague Tribunal might prove
an important step in promoting the spread of this peaceful and
friendly method or adjusting differences among all civilised countries
of the world.
If this proposition should be agreeable to you we should trust that
the conclusion might be reached in so short a period that the con-
tinuation in force meantime of the modus vivendi I had the honour of
arranging with you last year could work no real hardship to any
British or Colonial interests. In its practical operation last year it
resulted in voluntary arrangements by which our fishermen gave up
purse seines. They did, however, employ Newfoundland fishermen.
We do not think the continued employment of men so eager for the
work, and the consequent influx of their wages into the Colony could,
for the short time involved, work the Colony any harm. But if for
any reason you should find it unsuitable or inconvenient to renew for
so short a time this feature of the modus vivendi, we should be com-
pelled to insist on the use of purse seines for the reason already stated.
To give that up too we should consider under existing circumstances
as giving up altogether our Treaty rights of fishing on that coast.
Hoping that in these proposals we have made an offer not only indi-
cating our earnest desire to reach a mutually satisfactory arrange-
ment, but an honourable and agreeable means of doing so,
I have, &c.,
WHITELAW REID.
Sir EDWARD GRAY, Bart., &c., &c., &c.
Lord Elgin to Governor MacGregot
DOWNING STREET, July 19, 1907.
SIR: I have the honour to transmit to you, to be laid before your
Ministers, copy of a note addressed by the Secretary of State for
Foreign Affairs to the United States Ambassador at this Court pro-
posing a modus vivendi regarding the American fishery rights in New-
foundland waters for the season of 1907.
PEEIOD FROM 1905 TO 1909. 1009
2. The proposals embodied in this note have formed the subject of
repeated discussions with your Prime Minister, who received a copy
of the note before his departure from England ; but I regret to inform
you that they have not altogether met his wishes. I shall, therefore,
explain briefly the reasons which have induced His Majesty's Govern-
ment to adopt the views expressed in the note to Mr. Whitelaw Reid.
3. The expiration of the modus vivendi for the season of 1906 left
matters as they stood in the earlier part of that year. The Govern-
ment of the United States asserted that the fishery privileges granted
to them in Newfoundland waters by the Treaty or 1818 were to be
exercised independently of any Colonial regulations, while His
Majesty's Government claimed that it was within the power of the
Colonial Government to enact such regulations as did not interfere
with the exercise of the American right. Under these circumstances
His Majesty's Government were compelled to take into consideration
what arrangements could be made for the season of 1907.
4. Sir R. Bond suggested in his speech at the Colonial Conference
of the 14th of May that the rights granted to the inhabitants of the
United States under the Treaty of 1818 were not set forth in language
that was ambiguous, and he asked that His Majesty's Government
should define the rights of American citizens under the Treaty. But
His Majesty's Government have already intimated to the United
States Government the extent of the rights conferred, in their view,
on the American fishermen by the Treaty, and that definition has not
been accepted by the Government of the United States, who, on their
part, contend that the words of the Treaty bear precisely the opposite
meaning to that assigned to them by Sir R. Bond. His Majesty's
Government adhere to the interpretation of the Treaty conveyed in
Sir E. Grey's note to Mr. Whitelaw Reid of the 2nd of February, 1906,
but your Ministers will realise that it is impossible for one party to a
treaty to force its own interpretation of the meaning of the treaty
upon the other party.
5. Recourse must, therefore, be had to diplomacy for a settlement
of the points at issue, and His Majesty's Government will use every
effort to secure results favourable to Newfoundland, but obviously
some arrangement ad interim was essential for the approaching season.
Sir R. Bond suggested as a solution of the question that the assent
of the Crown should be given to the Act of 1906, and that the Colonial
Government should be permitted to enforce its laws for the regula-
tion of the fisheries.
6. To adopt this suggestion would have led to strong protests from
the United States Government, which would justly have pointed out
that His Majesty's Government were thus adopting their own inter-
pretation of the treaty in an extreme form. It would have involved
compelling the American fishermen to conform to Customs laws, to
pay light dues, not to use purse seines or fish on Sundays, and would
have deprived them of the assistance of Newfoundland fishermen in
carrying on their operations. His Majesty's Government, therefore,
felt that some arrangement must be made unless serious difficulties
were to be raised as soon as fishing commenced.
7. His Majesty's Government have, therefore, decided not to insist
on American vessels calling at Customs Houses — though they have
suggested to the United States Government good reasons why such
vessels should call — and to exempt those vessels from payment of
92909°— S. Doc. 870, 61-3, vol 3 25
1010 CORRESPONDENCE, ETC.
light dues in cases where similar vessels registered and owned in the
Colony are exempt. They recognised that those concessions are
substantial, but they consider that they are the least injurious to the
interests of the Colony. On the other hand, they have pressed the
right of the Colonial Government to prevent Newfoundlanders serving
on American vessels, and they have urged the United States Govern-
ment to accept the prohibition of the use of purse seines and of Sunday
fishing. These proposals are now under the consideration of the
United States Government, and no effort will be spared to secure the
most favourable terms possible for Newfoundland pending the further
discussion of the main questions at issue.
8. His Majesty's Government earnestly trust that in the carrying
out of anv modus vivendi which may be found necessary, and in the
conduct of negotiations, they will receive the fullest co-operation of
the Newfoundland Government. In his speech at the Colonial Con-
ference Sir R. Bond repudiated any desire to limit the treaty rights of
American citizens, and asked for nothing but justice and responsi-
bility sanctioned by the spirit and forms of the British Constitution.
His Majesty's Government feel, therefore, entitled to rely on his help
in arranging conditions on which the fishery may be carried on pend-
ing the final settlement of the dispute with the United States as to the
meaning of the Treaty of 1818; for they have no doubt that vour
Ministers will agree that the strict observance of treaty obligations
is binding upon all portions of the British Empire.
I have, &c., ELGIN.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 5.15 p.m., July 23, 1907.)
We have now received answer from the United States Ambassador
to our note of the 20th June, which was shown to your Prime Minister,
and a copy of which was privately sent to you on the 21st June. The
effect of the note is that the United States Government cannot give
their acquiescence to the present proposals of His Majesty's Govern-
ment which they feel would be tantamount to yielding all vital ques-
tions in dispute. In their opinion the surrender of the right to hire
local fishermen, and the surrender at the same time of the use of purse
seines and of fishing on Sunday would render their treaty rights worth-
less. We are, therefore, face to face with a reference of pending ques-
tions to arbitration and an ad interim renewal of the Modus Vivendi.
The United States Ambassador has proposed arbitration before the
Hague Tribunal and suggests that a conclusion to the proceedings
will be reached in so short a time that last year's Modus Vivendi can
be continued without causing any real hardship to the Colony. If,
however, we refused to renew the agreement as to the employment of
Newfoundland fishermen, they would be compelled to insist on the
use of purse semes. To give up both points they would consider
equivalent to abandoning altogether their treaty rights.
From the proceedings at the Conference and also from the corre-
spondence which took place with me, His Majesty's Government are
aware that Sir R. Bond is desirous to have all the outstanding ques-
PERIOD FROM 1905 TO 1909. 1011
fcions settled by arbitration before the Hague Tribunal, and the
United States Government are being so informed, and a communica-
tion will be addressed to you on procedure relating to that subject,
but I shall be glad, in the meantime, of the observations of your
Prime Mninister upon the continuance of last year's Modus Vivendi,
especially whether he attaches more importance to the prohibition of
the employment of Newfoundland fishermen or to that of the use of
purse seines. Telegraph reply. — ELGIN.
Lord Elgin to Governor-General Grey.
[Telegram.]
(Sent 5.25 p.m., August 8, 1907.)
Fishery dispute between United States and Newfoundland.
As your Prime Minister is aware, Newfoundland Government
expressed desire for reference of dispute to the Hague Tribunal.
American Government have now declared that they cannot acquiesce
in proposals which, after consulting Sir R. Bond, His Majesty's
Government have made to them for amicable settlement of dispute
and which went further than Bond wished ; and they also have asked
that pending questions under Treaty of 1818 may be referred to the
arbitration of the Hague Tribunal.
We are of opinion that it would be out of the question to refuse this
proposal, pressed upon us as it is both by Newfoundland and the
United States Government, but before replying to United States we
should be glad to learn whether your Government agree in principle.
If so, you will be further consulted in due course in regard to terms of
reference, procedure, costs, &c. — ELGIN.
Governor-General Grey to Lord Elgin.
[Telegram.]
(Received 8.10 p. m., August 14, 1907.)
Referring to your telegram of the 8th August, respecting the
fishery question, opinion is still entertained by my responsible
advisers that the Treaty of 1818 concerning right of American
fishermen in British waters is clear and without ambiguity. Since,
however, Government of Newfoundland has expressed a wish for
reference of the dispute to the Hague Tribunal they deem it their
duty to assist Newfoundland, and to agree to such a reference. —
GREY.
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 7.45 p. m., August 80, 1907.)
I have laid before Ministers a telegram received from Mr. Bryce
stating that he has been informed by the United States Government
that the unarmed revenue cutter "Gresham" sails on 1st September
1012 CORRESPONDENCE, ETC.
for Canadian and Newfoundland waters, conveying Mr. Alexander,
of the United States Fisheries Protection Department, to advise
American fishermen, as was done last year, and requesting that
facilities and courtesies may be afforded to the ship and the officers.
My Ministers take up the position that if the proposal submitted
to His Majesty's Government with reference to the conduct of the
fishery upon trie Treaty coast during coming season is accepted, the
presence of United States cutter is absolutely unnecessary, and
would only prove a source of irritation. If the proposal is not
accepted, then they assume that the presence of that cutter in the
territorial waters of this Colony is in connection with a modus vivendi
arranged between His Majesty's Government and the United States
of America, and as they cannot be consenting parties to the modus
vivendi outlined in your telegram of 10th instant, they must respect-
fully protest against the establishment of a dual authority in New-
foundland waters, which the presence there of the cutter "Gresham"
would constitute.
I concur with my responsible advisers that the American cutter
would be unnecessary were the proposal accepted.
I have sent the following message to Mr. Bryce : —
"Your telegram of the 26th of August. My Ministers have sub-
mitted proposals for next season's fishery which, if accepted by the
United States Government, would, in their opinion, make the pres-
ence of American cutter unnecessary and not desirable. If pro-
posals are not accepted Ministers protest against the dual authority
that would be instituted by presence of American cutter in New-
foundland waters."— ^MAcGREGOR.
Lord Elgin to Governor MacGregor.
DOWNING STREET, August 31, 1907.
SIR: As it has been decided, with the concurrence of the Govern-
ment of the Dominion of Canada, to submit to arbitration the ques-
tions at issue between His Majestv's Government and the Govern-
ment of the United States of America with regard to the interpreta-
tion of the fishery clauses of the Treaty of 1818 between Great Britain
and the United States, I have the honour to request that you will ask
your Ministers to be so good as to prepare a draft of the terms of
reference to the Hague Tribunal for consideration by His Majesty's
Government, and for submission to the Government of the United
States.
2. As the Government of the Dominion of Canada has expressed
its willingness to co-operate with your Government in the conduct
of the arbitration, I shall be glad if your Ministers will consult with
the Dominion Government in drawing up the terms of reference, and
also as to the mode in which the expenses of the arbitration will be
defrayed.
3. A despatch in similar terms has been addressed to the Governor-
General of Canada.
I have, &c., ELGIN.
PERIOD FROM 1905 TO 1909. 1013
Lord Elgin to Governor- General Grey.
DOWNING STREET, August 81, 1907.
MY LORD: As it has been decided, with the concurrence of Your
Excellency's Government, to submit to arbitration the questions at
issue between His Majesty's Government and the Government of the
United States of America with regard to the interpretation of the
fishery clauses of the Treaty of 1818 between Great Britain and the
United States, I have the honour to request that you will ask your
Ministers to be so good as to draw up, in consultation with the Gov-
ernment of Newfoundland, a draft of the terms of reference to the
Hague Tribunal for the consideration of His Majesty's Government,
and for submission to the Government of the United States.
2. Your Ministers will also no doubt desire to consult with the
Newfoundland Government as to the mode in which the expenses of
the arbitration will be defrayed.
3. A similar despatch has been addressed to the Governor of New-
foundland.
I have, &c., ELGIN.
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 3.15 p. m., September 1, 1907.)
In reply to your telegram of the 30th August, I have received a
letter from my Ministers of which a resume follows : —
"My Ministers deeply regret that their proposal, which was made as
an honourable compromise, has not been accepted. They do not
understand how the proposal can be said to be too late, as the fishery
does not begin for four or five weeks from now, and the vessels cannot
have started yet. They fear that Mr. Alexander may advise the
American fishermen that they may with impunity violate the statute
laws of this Colony.
My Ministers feel most acutely the manner in which their repre-
sentations have again been received by His Majesty's Government;
they made clear their position in regard to the modus vivendi in their
minutes of the 1st, 20th, and 22nd of August, to which they adhere,
and they cannot consent to the overriding of the constitution of this
Colony and the suspension of its laws. My Ministers, however, still
desire to aid His Majesty's Government as far as possible consistently
with their duty to this Colony, and the preservation of its rights ; they
will, therefore, grant permission to the fishermen of the Treaty Coast
to sell to Americans during the coming season on the receipt of an
assurance from His Majesty's Government that the terms of reference
to the Hague Tribunal shall include the question of the right of
American vessels to fish or trade in any or the bays, harbours, or
creeks of that portion of Newfoundland Coast between Cape Ray and
Quirpon Islands, together with all other questions that may be raised
under the Treaty."
MACGREGOR.
1014 CORRESPONDENCE, ETC.
Governor MacGregor to Lord Elgin.
GOVERNMENT HOUSE, ST. JOHN'S,
September 2, 1907. (Received September 14, 1907.)
MY LORD: I have the honour to transmit, for your information,
copy of a letter, dated 31st August, which I received from my Prime
Minister.
Your Lordship will not fail to notice that while my Ministers adhere
to the principles they have hitherto maintained in regard to the bind-
ing force of the laws of this Colony on American fishermen in the terri-
torial waters of Newfoundland; and while they continue to think that
their representations with regard to the modus vivendi have not re-
ceived the attention and consideration to which they were entitled,
yet they are at the same time desirous of lending every assistance to
His Majesty's Government in this difficult and complicated case,
which is declared by your Lordship to involve important imperial
interests. It is in this spirit, and in full confidence of a favourable
result to this Colony if the whole question is submitted to the Hague
Tribunal, that my Ministers now propose wThat they deem to be a
practical working arrangement for next season's fishery, under which
operations should be carried on temporarily without friction, and, of
course, without prejudice to the merits of the case for this Colony
before the International Tribunal.
2. It may be presumed that neither His Majesty's Government nor
that of the United States would desire to withhold any part of the
case from consideration, a complete and full representation of which
is clearly necessary and desirable in order to arrive at finality, and to
save future misunderstanding. Your Lordship is, for example, aware
that my Prime Minister has consistently disputed the right of Ameri-
can fishermen to fish or trade in the bays, harbours, and creeks of the
West Coast, a point of great importance on which special stress is laid
in the letter copy of which is enclosed.
I would, therefore, respectfully express the hope that your Lordship
may be able to meet the strong desire of this Government that the
reference to the Hague Tribunal shall cover the whole case as far as
it affects the interests of this Colony.
3. I enclose copy of the reply I have addressed to my Prime Min-
ister to his communication referred to above.
I have, &c.,
WM. MACGREGOR.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 3.15 p. m., September 2, 1907.)
Your telegram, 1st September. It will be necessary to refer to
United States Government the question of the terms of arbitration;
but provided that your Government now accept proposed modus
vivendi, His Majesty's Government would favourably consider the
reference to arbitration of question of bays. I do not, however,
gather from your telegram whether your Ministers propose to accept
modus vivendi, and to permit American vessels to employ Newfound-
PERIOD PROM 1905 TO 1909. 1015
land fishermen on terms mutually arranged, or merely to allow
Newfoundland fishermen to sell fish to Americans.
There is no chance of American Government accepting any arrange-
ment under which American vessels not allowed to employ New-
foundland fishermen.
Please reply immediately as American vessels have already sailed,
and the arrangements must be concluded at once. — ELGIN.
Lord Elgin to Governor MacGregor.
[Telegram.] .
(Sent 5.45 p. m., September 2, 1907.)
My telegram of to-day. If modus vivendi accepted United States
Ambassador says he will add to his Note that his Government would
be quite willing to give the most favourable consideration to any
arrangement which your Ministers might make with American fisher-
men on arrival in modification or supersession of modus vivendi.
Trust this proves satisfactory to your Ministers in view of last para-
graph of your telegram 20th August. — ELGIN.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 2.48 p. m., September 3, 1907.)
Your telegram, 30th August. You will have learned from my
telegram, 30th August, that United States Government have re-
fused your Ministers' proposal on ground that vessels have already
started for fishery, and that His Majesty's Government have con-
sented to adhere to arrangement in force in 1906 subject to omission of
right to use purse seines. We cannot prevent despatch of " Gresham"
to Newfoundland waters; the only question, therefore, which arises is
the treatment to be accorded to it. To refuse ordinary courtesies
would cause bad feeling which it is especially desirable to avoid dur-
ing negotiation of Arbitration Treaty, and might further involve with-
drawal of courtesies accorded to British naval vessels in United States
waters. In any case it is not desirable that an opportunity should
be given to United States Government to represent to an arbitral tri-
bunal that Newfoundland in any respect refuses to act in accordance
with the comity of nations. I earnestly hope, therefore, that Minis-
ters will reconsider their attitude.
With all deference to your Ministers we cannot see why they
should so strongly object to presence of responsible American official
during fishery; he will be useful in preventing improper action by
American fishermen, and he will be able to sift any alleged grievance
of American fishermen before it is brought to notice of United States
Government. — ELGIN.
1016 CORRESPONDENCE, ETC.
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 1.5 a. m., September 4, 1907.)
In reply to your telegrams of the 2nd September, my Ministers
have requested me to transmit the following message to you : —
" Referring to your telegrams of 2nd instant, my Ministers cannot
accept the modus vivendi. It must be apparent to His Majesty's
Government that their proposal contained in my telegram of 1st
instant, entirely obviates any necessity for the same as it permits
Americans to purchase herring on Treaty Coast as they did prior to
1904. My Ministers find it difficult to conceive what more can be
desired."
MACGREGOR.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 4 p. m., September 6, 1907.)
His Majesty's Government have received with much regret the
reply of your Ministers, contained in your telegram of 3rd September,
to my telegrams of 2nd September. Whatever might be the objec-
tions which could be urged against the conclusion of a modus vivendi
last year, they do not consider that such objections can be held valid
with regard to a modus vivendi made expressly with the purpose of
tiding over the time which must necessarily elapse before the decision
of the Hague Tribunal is obtained. That the terms of the modus
vivendi should not have been acceptable to your Ministers they much
regret, but some concession to tne United States Government was
imperative, and by my telegram of 23rd July your Prime Minister
was so informed, and expressly invited to advise as to whether he
preferred to permit the United States fishermen to use purse seines
or to employ Newfoundland fishermen. No reply was received to
this express enquiry, and His Majesty's Government, in view of the
language used by your Prime Minister during the discussion in London,
and of the danger of conflicts between Newfoundland and American
fishermen should the latter try to use purse seines, and thus interfere
with the fishing of the former, therefore decided to forbid the use of
purse seines, thus securing a much more favourable arrangement for
your Government than was the case last year. Further, His Maj-
esty's Government have obtained an undertaking from the United
States Government to consider favourably any arrangement made
by your Ministers with the American fishermen on arrival in modifi-
cation of, or in supersession of, the modus vivendi, and they gather
from your telegram of the 30th August that your Ministers contem-
plate an arrangement satisfactory to both parties.
His Majesty's Government, therefore, hope that the Newfoundland
Government will loyally co-operate in making effective the modus
vivendi, the conclusion of which can no longer be delayed in view of
the representations of the United States Government. It should be
clearly understood that the modus vivendi confers no immunity on
Newfoundlanders who disobey the laws of the Colony, but merely
PERIOD FROM 1905 TO 1909. 1017
secures the American vessels unimpeded exercise of Treaty Rights
pending the decision of the Arbitral Tribunal as to the extent of
Colonial jurisdiction. I may add that His Majesty's Government
will urge the United States Government to submit to arbitration any
point on which your Government and the Government of Canada are
agreed. They cannot, however, give a pledge as to any one point
until the views of the Dominion Government are known.
I will send text of modus vivendi as soon as it is available. — ELGIN
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 3.20 p. m., September 7, 1907.}
Referring to my telegram of yesterday's date, following modus
vivendi as embodied in Note from United States Ambassador has
been concluded : —
1. It is understood that His Majesty's Government will not bring
into force the Newfoundland Foreign Fishing Vessels Act of 1906,
which imposes on American fishing vessels certain restrictions in
addition to those imposed by the Act of 1905, and also that the provi-
sions of the first part of Section 1 of the Act of 1905, as to boarding
and bringing into port, and also the whole of Section 3 of the same
Act, will not be regarded as applying to American fishing vessels.
2. In consideration of the fact that the shipment of Newfound-
landers by American fishermen outside the three mile limit is not
to be made the basis of interference nor to be penalised, my Govern-
ment waives the use of pmrse semes by American fishermen during
the term governed by this agreement, and also waives the right to
fish on Sundays.
3. It is understood that American fishing vessels will make their
shipments of Newfoundlanders as fishermen sufficiently far from the
exact three mile limit to avoid reasonable doubt.
4. It is further understood that American fishermen will pay light
dues when not deprived of their rights to fish, and will comply with
the provisions of the Colonial Customs Law as to reporting at a Cus-
tom House when physically possible to do so.
But my Government has every desire to make the arrangement,
pending arbitration, as agreeable as possible to the Newfoundland
authorities, consistent with the due safeguarding of Treaty Rights
which we have enjoyed for nearly a century. If, therefore, the
proposals you have recently shown me from the Premier of New-
foundland or any other changes in the above modus vivendi should
be proposed by mutual agreement between the Newfoundland author-
ities and our fishermen, having due regard to the losses that might
be incurred by a change of plans so long after preparations for the
season's fishing had been made, and the voyage begun, my Govern-
ment will be .ready to consider such changes with you in the most
friendly spirit, and if found not to compromise our rights, to unite
with you in ratifying them at once.
Please communicate at once to your Ministers, but do not publish
till Monday. United States Ambassador has promised to delay
publication till then. — ELGIN.
1018 CORRESPONDENCE, ETC.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 2.40 p. m., September 9, 1907.)
With reference to my telegram of 7th September, His Majesty's
Government have had under their careful consideration the measures
necessary to fulfil the undertaking given to the American Govern-
ment in connection with modus vivendi that the shipping of Newfound-
land fishermen by American vessels shall not oe penalised. In
doing so they are most anxious in no way to detract from your
Government's control over Newfoundland fishermen, and they have,
therefore, decided that it would be most satisfactory to pass an Order
in Council under the Act 59, Geo. III., ch. 38, Section 1, which will
forbid the serving of process on board any American vessel or arrest
of any vessel or of its gear, &c. They consider that this Order,
while ensuring to the Americans the undisturbed enjoyment of the
fishery in accordance with the modus vivendi, will cause the least incon-
venience to the Government of Newfoundland, as it merely gives
legal sanction to the arrangement in force last year under which the
fishery was conducted without serious disturbance or breach of the
peace.
His Majesty's Government invite the co-operation of your Govern-
ment in carrying out the Order and have instructed the Senior Naval
Officer on the station to render them every assistance in maintain-
ing the law of the Colony as modified by the Order. They will be
prepared to revoke or modify its provisions immediately a satisfac-
tory arrangement is made by the Colonial Government with the
American fishermen as contemplated in the modus vivendi, or the
modus vivendi is accepted by your Government.
His Majesty's Government feel compelled, however, to place on
record their deep regret that they should have had no alternative
in consequence of the action of your Ministers but to avail themselves
of the legal powers conferred on them by the Act 59 Geo. III.
His Majesty's Government recognise to the full the inconvenience
caused to the Government of Newfoundland by the treaty obliga-
tions binding upon it, but these obligations were not created by His
Majesty's Government, and in 1904 this country made no inconsider-
able sacrifice of territory and money in order to reduce the pressure
of French treaty rights. I may remind your Ministers that in this
case the Government of Canada have, in order to meet their wishes,
consented to share in the arbitration, although they have already
obtained a friendly understanding with the United States. His
Majesty's Government consider, therefore, that they were entitled to
expect your Government's co-operation in arranging a new temporary
modus vivendi pending the decision of the Arbitral Tribunal to
which, in deference to your Government's wishes, the whole question
is shortly to be referred.
The Order in Council is being telegraphed separately. — ELGIN.
PERIOD FKOM 1905 TO 1909. 1019
Lord Elgin to Governor MacGregor.
DOWNING STREET, September 11, 1907 .
SIR: With reference to my telegram of the 9th of September, I have
the honour to transmit to you, to be laid before your Ministers, copies
of an Order in Council of the 9th instant, giving directions with
regard to the taking, drying, and curing of fish by the inhabitants of
the United States of America in common with British subjects on the
coasts of Newfoundland.
I have, &c., ELGIN.
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 7.39 a. m., September 12, 1907.}
My Ministers have handed in a lengthy minute dealing with your
telegrams of the 6th and 9th September, which my Ministers have
epitomized as follows: —
They expected that His Majesty's Government would have recog-
nised in their proposal an honourable compromise which, while
upholding the sovereignty of the Colonial law, permitted the Ameri-
cans to obtain herring precisely as they had ever done prior to 1904.
They point out that while their proposal would have secured the har-
monious conduct of the fishery, the forcing upon this Colony of an
objectionable arrangement is calculated to engender feelings of ill-
will and resentment among His Majesty's subjects.
They also point out that a reply to your enquiry of 23rd July was
sent on the 1st of August.
They enter a protest against the submission of this Colony's case
being prejudiced by Canadian Government or subjected to its approval.
They observe that while telegram of 9th September, which accom-
panied Order in Council, intimated the willingness of His Majesty's
Government to revoke or modify its provisions provided that satis-
factory arrangement is made by them with American fishermen or
modus vivendi is accepted, the initial paragraph of telegram embody-
ing text of Order in Council directs its publication and transmission
to Senior Naval Officer. They consider that they are at least entitled
to reasonable time in which to consider this proposal before Order in
Council is promulgated, and again point out that fishery will not
commence before at least month from date and that if suggestion of
His Majesty's Government is deemed practicable no negotiation
could take place until arrival of American fishermen. They ask,
therefore, that they be allowed reasonable time to consider what their
course of action should be before publication of Order in Council in
view of fact that they could not have foreseen infliction on this
Colony of such humiliation, which is calculated to prejudice this
Colony's case before the Hague Tribunal.
The full minute goes by the post of 12th September. I hope you
may delay publication or the Order in Council and communication
to the Senior Naval Officer till you have the full text.
His Majesty's ship "Brilliant" left llth September for Halifax;
it is not required at the present time here. — MACGREGOR.
1020 CORRESPONDENCE, ETC.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 12.45 p. m., September 14, 1907.)
Your telegram llth September. His Majesty's Government
regret that the resume^ of your Ministers' Minute which they give
affords no ground justifying the revocation of the Order in Council.
I am anxious, in the difficult position which has arisen, to show your
Ministers all possible courtesy and consideration, but I cannot encour-
age any hope that the Order in Council will be revoked without publi-
cation unless your Ministers accept without reserve the modus
vivendi and undertake to carry it out in its entirety. I will delay
publication as long as possible to enable your Ministers fully to con-
sider the situation, but I cannot consent to run any risk of further
complicating the difficult international position by allowing the
possibility of His Majesty's Order in Council being questioned on
the ground of non-publication: and while I authorize you to with-
hold publication for the present, it is only on the distinct understand-
ing that you are instructed to publish tne Order in Council immedi-
ately on the arrival of the American fishermen, unless before that
date your Ministers have accepted the modus vivendi.
Acceptance of modus vivendi will not prejudice modification or
supersession by agreement with American fishermen. — ELGIN.
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 5.22 p.m., September 15, 1907.')
The "Gresham" arrived here on the 14th instant. Shall I publish
the Order in Council or wait for the fishing vessels? — MACGREGOR.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 1.45 p.m., September 16, 1907.}
Your telegram 15th September. You should inform your Ministers
arrival of "Gresham" renders it essential for you to publish Order in
Council unless they are prepared to accept modus vivendi, and you
should ask for an immediate reply, which you will at once send to
me. Your Ministers should clearly understand that in the event of
unfavourable reply His Majesty's Government will have no alter-
native but to at once publish Order in Council, a course which,
though inevitable, is to be regretted, and the responsibility for which
will, in the circumstances, rest on your Government.
If hi the meantime fishing ships arrive you must, in order to avoid
greater complications, publish without further instructions. — ELGIN.
PERIOD FROM 1905 TO 1909. 1021
Governor MacGregor to Lord Elgin.
[Telegram.]
(Received 8.15 a.m., September 21, 1907.)
Your telegrams of 14th and 16th September. I have received a
minute from my Ministers, of which the principal points are as
follows : —
They hope the full minute of llth September may justify the
revocation of the Order in Council; they repeat the objections to the
prevention of service of process advanced by the Prime Minister in
his letters to your Lordship of the 15th and 17th June, and refer to
your letter to the Prime Minister, 18th June, which recognised the
cogency of his objections, in consequence of which they cannot
understand the action of His Majesty's Government in passing the
Order in Council. If it is contended that His Majesty's Government
were pledged to renew modus vivendi, and that Supreme Court had
shown that the modus vivendi could not legalize shipment of New-
foundland fishermen, their answer is that modus vivendi is not neces-
sary because of the undertaking of this Government to revert to the
status quo prior to 1905, thus giving to the Americans all the privi-
leges hitherto enjoyed by them on the Treaty Coast.
Promulgation or Order in Council would practically destroy case
of this Colony before the Hague Tribunal as furnishing argument
that the law of Newfoundland is not binding on Americans. My
responsible advisers refuse to accept any responsibility for Order in
Council which cannot be with justice put on them. To assist His
Majesty's Government ameliorate embarrassing position they pro-
posed reference to Hague Tribunal, and also a temporary working
arrangement to lawfully give Americans the privileges they had
before this dispute. My responsible advisers cannot be parties to
the modus vivendi, and they protest against the promulgation of the
Order in Council. They are advised by Attorney-General and
English Counsel that Order in Council is not operative against the
law of the Colony. Order in Council cannot grant any new right or
immunity. His Majesty's Government appear to overlook that my
responsible advisers undertake to place Americans in precisely the
same position as they occupied in 1905, thus making the modus
vivendi and Order in Council unnecessary. Whether Order in Council
is published or revoked, my responsible advisers will issue lawful
authority to the local fishermen on the Treaty Coast to sell fish to
Americans and others as heretofore, thus removing any possible
grounds of complaint so far as Americans are concerned and at the
same time upholding the law of this Colony. — End of resume.
In explanation of above, I should add" that a licence would be
issued to Newfoundland fishermen to sell to Americans or others,
but no engaging of Newfoundland fishermen as part of the crews
for Americans will be allowed. — MACGREGOR.
1022 CORRESPONDENCE, ETC.
Lord Elgin to Governor MacGregor.
[Telegram.]
(Sent 11.15 p. m., September 23, 1907)
Your telegram 20th September.0 His Majesty's Government
have received with great regret the refusal of your Ministers to co-
operate in carrying out the modus vivendi, which leaves His Majesty's
Government no alternative but definitely to instruct you to publish
the Order in Council. This step should, therefore, be taken at once.
The points raised by your Ministers will be dealt with by despatch,
but I think it right to warn them that His Majesty's Government
cannot support them in any attempt to enforce the service of process
on American vessels, and that the Senior Naval Officer on the Station
has been so instructed.
While taking the necessary steps to promulgate and legalize the
modus vivendi, you will understand that His Majesty's Government
will gladly welcome any friendly arrangement which can be made
to facilitate the fishery as between your Government and the Amer-
ican fishermen provided the pledges given by His Majesty's Govern-
ment to the United States Government are fully safeguarded. Indeed,
you may be able to suggest such an arrangement yourself, and your
good offices would, no doubt, be greatly appreciated. — ELGIN.
Lord Elgin to Governor MacGregor.
DOWNING STREET, September 26, 1907.
SIR: I have the honour to acknowledge the receipt of your tele-
gram of the 20th of September, containing the decision of your Min-
isters as to the acceptance of the modus vivendi with the United
States Government regarding the Newfoundland fishery.
2. In my telegrams of the 23rd of September, I informed you that
the refusal of your Ministers to accept the modus vivendi left His
Majesty's Government no option but to instruct you to publish the
Order in Council of the 9th or September, and I accordingly instructed
you to publish it in the next issue of the Newfoundland "Royal
Gazette."
3. His Majesty's Government had no alternative but to take this
action in the absence of an undertaking by your Ministers to carry
into effect the terms of the modus vivendi, and in view of the fact
that, as your Ministers were informed in my telegrams of the 30th
of August and the 2nd of September, the Government of the United
States have declined to accept the proposal of your Government to
permit the sale of fish to American fishermen as a substitute for the
modus vivendi. His Majesty's Government hope, however, that
your Ministers may, after all, be able to secure the acceptance of
the liberty to purchase fish in substitution for the modus vivendi
by negotiation with the American fishermen on their arrival in
Newfoundland. If this is done, His Majesty's Government will, in
« Received 21st September
PEEIOD FROM 1905 TO 1909. 1023
accordance with the addendum to the modus vivendi, have great
pleasure in inviting the adherence of the United States Government
to the arrangement.
4. I do not think it necessary to comment in detail on the view
expressed in your Ministers' Minute since the position of His Maj-
esty's Government in the matter has been so fully set out in my
despatch No. 70, of the 19th of September; but as your Premier has
referred to my letter to him of the 18th of June, I would remind
him that while I consented to omit from the draft note to the Foreign
Office any reference to the question of service of process on American
vessels, I distinctly intimated that the omission would in no way
interfere with the giving of full consideration to any proposal put
forward by the United States Government. In view of this fact,
and of the distinct intimation given in my telegram of the 10th of
August, of the intention of His Majesty's Government to take any
necessary action to make good their pledges to the United States
Government, I cannot quite understand the surprise expressed by
Sir E. Bond at the action now taken.
5. I cannot enter into a discussion as to the validity of His Majesty's
Order in Council of the 9th of September, which was issued on the
advice of the Law Officers of the Crown, but I cannot for a moment
admit that the issue of an Order in Council shows that the law of
Newfoundland is not applicable to Americans. On the contrary,
the issue of an Order in Council is a formal and deliberate expression
of the view of His Majesty's Government that the law of New-
foundland is binding on American vessels, and that no other means
exist of preventing the application of such provisions as interfc re
with the modus vivendi than a formal alteration of the Colonial Law
by a competent authority, in this case His Majesty in Council under
Section 1 of the Imperial Act 59 G. III., ch. 38.
I have, &c., ELGIN.
MISCELLANEOUS CORRESPONDENCE, DOCUMENTS,
ETC.
THE CHARTER OF MASSACHUSETTS BAY— 1691.*
WILLIAM & MARY by the grace of God King and Queene of
England Scotland France and Ireland Defenders of the Faith &c
To all to whome these presents shall come Greeting Whereas his late
Majesty King James the First Our Roy all Predecessor by his Letters
Patents vnder the Greate Seale of England bearing date at West-
minster the Third Day of November in the Eighteenth yeare of his
Reigne did Give and Grant vnto the Councill established at Plymouth
in the County of Devon for the Planting Ruleing Ordering and Gov-
erning of New England in America and to their Successors and
Assignes all that part of America lying and being in Breadth from
Forty Degrees of Northerly Latitude from the Equinoctiall Line to
the Forty Eighth Degree of the said Northerly Latitude Inclusively,
and in length of and within all the Breadth aforesaid throughout all
the Main Lands from Sea to Sea together alsoe with all the firme
Lands Soiles Grounds Havens Ports Rivers Waters Fishings Mines
and Mineralls aswell Royal Mines of Gold and Silver as other Mines
and Mineralls Pretious Stones Quarries and all and singular other
Comodities Jurisdiccons Royalties Priviledges Franchises and Prehem-
inences both within the said Tract of Land vpon the Main and alsoe
within the Islands and Seas adjoyning Provided al waves that the
said Lands Islands or any the premisses by the said Letters Patents
intended or meant to be Granted were not then actually possessed or
Inhabited by any other Christian Prince or State or within the
bounds Limitts or Territories of the Southern Collony then before
granted by the said late King James the First [to be planted f] by
divers of his Subjects in the South parts To Have and to hold
possesse and enjoy all and singular the aforesaid Continent Lands
Territories Islands Hereditaments and Precincts Seas Waters Fish-
ings with all and all manner of their Comodities Royaltyes Liberties
Preheminences and Profitts that should from thence forth arise from
thence with all and singular their appurtenances and every part and
parcell thereof vnto the said Councill and their Successors and
Assignes for ever to the sole and proper vse and benefitt of the said
Councill and their Successors and Assignes for ever To be holden of
his said late Majestie King James the First his Heires and Suc-
cessors as of his Manner of East Greenwich in the County of Kent
in free and Comon Soccage and not in Capite or by Knights Service
Yielding and paying therefore to the said late King his Heires and
Successors the Fifth part of the Oar of Gold and Silver which should
from time to time and at all times then after happen to be found
* The charter of 1629 had been cancelled by a judgment of the high court of
chancery of England June 18, 1684.
t These words occur in the printed copies, but are not in the original.
1024
PERIOD FROM 1905 TO 1909. 1025
gotten had and obteyned in att or within any of the said Lands
Limitts Territories or Precincts or in or within any part or parcell
thereof for or in respect of all and all manner of duties demands and
services whatsoever to be done made or paid to the said late King
James the first his Heires and Successors (as in and by the said Let-
ters Patents amongst sundry other Clauses Powers Priviledges and
Grants therein conteyned more at large appeareth And Whereas the
said Councill established at Plymouth in the County of Devon for
the Planting Euleing Ordering and Governing of New England in
America Did by their Deed Indented vnder their Cpmon Seale bear-
ing Date the Nineteenth Day of March in the Third Yeare of the
Reigne of our Royall Grandfather King Charles the First of ever
Blessed Memory Give Grant Bargaine Sell Enffeoffe Alien and Con-
firme to Sir Henry Roswell Sir John Young Knights Thomas South-
cott John Humphreys John Endicot and Simond Whetcomb their
Heires and Assines and their Associats for ever All that part of
New England in America aforesd which lyes and extends betweene
a great River there comonly called Monomack als Merrimack and a
certaine other River there called Charles River being in a Bottom
of a certaine Bay there comonly called Massachusetts als Mattachu-
setts als Massatusetts Bay And alsoe all and singular those Lands and
Hereditaments whatsoever lying within the space of Three English
Miles on the South part of the said Charles River or of any and every
part thereof And alsoe all and singuler the Lands and Hereditaments
whatsoever lying and being within the space of three English Miles
to the Southward of the Southermost part of the said Bay called the
Massachusetts als Mattachusetts als Massatusetts Bay And alsoe all
those Lands and Hereditaments whatsoever which lye and be within
the space of three English Miles to the Northward of the said River
called Monomack also Merrimack or to the Northward of any and
every part thereof And all Lands and Hereditaments whatsoever
lying within the Limitts aforesaid North and South in Latitude and
in Breadth and in length and longitude of and within all the Breadth
aforesaid throughout the Main Lands there from the Atlantick and
Western Sea and Ocean on the East parte to the South Sea on the
West part and all Lands and Grounds Place and Places Soile Woods
and Wood Grounds Havens Porte Rivers Waters Fishings and Here-
ditaments whatsoever lying within the said Bounds and Limitts and
every parte and parcel 1 thereof and alsoe all Islands lying in America
aforesaid in the said Seas or either of them on the Western or Eastern
Coasts or Parts of the said Tracts of Land by the said Indenture
menconed to be Given and Granted Bargained Sold Enffeoffed
Aliened and Confirmed or any of them And alsoe all Mines and
Mineralls aswell Royall Mines of Gold and Silver as other Mines and
Mineralls whatsoever in the said Lands and Premisses or any parte
thereof and all Jurisdiccons Rights Royalties Liberties Freedoms
Imunities Priviledges Franchises Preheminences and Comodities
whatsoever which they the said Councill established at Plymouth in
the County of Devon for the planting Ruleing Ordering and Gov-
erning of New England in America then had or might vse exercise
or enjoy in or within the said Lands and Premisses by the same
Indenture menconed to be given granted bargained sold enffeoffed
and confirmed in or within any part or parcell thereof To Have and
to hold the said parte of New England in America which lyes and
extends and is abutted as aforesaid and every parte and parcell
92909°— S. Doc. 870, 61-3, vol 3 26
1026 MISCELLANEOUS.
thereof And all the said Islands Rivers Ports Havens Waters Fish-
ings Mines Mineralls Jurisdiccons Franchises Royalties Liberties
Privil edges Comodities Hereditaments and premisses whatsoever with
the appurtenances vnto the said Sir Henry Roswell and Sir John
Young Thomas Southcott John Humphreys John Endicott and
Simond Whetcomb their Heires and Assignes and their Associates
for ever to the only proper and absolute vse and behoofe of the said
Sir Henry Roswell Sir [John*] Joung Thomas Southcott John
Humphryes John Endicott and Simond Whetcomb their Heires and
Assignes and their Associates for evermore To be holden of Our said
Royall Grandfather King Charles the first his Heires and Suc-
cessors as of his Manner of East Greenwich in the County of Kent
in free and Comon Soccage and not in Capite nor by Knights Service
Yielding and paying therefore vnto Our said Royall Grandfather
his Heires and Successors the fifth part of the Oar of Gold and
Silver which should from time to time and at all times hereafter
happen to be found gotten had & obteyned in any of the said Lands
within the said Limitts or in or within any part thereof for and in
satisfaccon of all manner of duties demands and services whatsoever
to be done made or paid to Our said Royall Grandfather his Heires
or Successors (as in and by the said recited Indenture may more at
large appeare And Whereas Our said Royall Grandfather in and by
his Letters Patents vnder the Greate Seale of England bearing date
at Westminster the Fourth Day of March in the Fourth yeare of his
Reigne for the consideracon therein menconed did grant and confirme
vnto the said Sir Henry Roswell Sir John Young Thomas Southcott
John Humphreys John Endicott and Simond Whetcomb and to their
Associates after named (vizt) Sir Ralph Saltenstall Kn* Isaac John-
son Samuell Aldersey John Ven Mathew Craddock George Harwood
Increase Nowell Richard Berry Richard Bellingham Nathaniell
Wright Samuell Vassall Theophilus Eaton Thomas Golfe Thomas
Adams John Browne Samuell Browne Thomas Hutchins William
Vassall William Pincheon and George Foxcroft their Heires and
Assignes All the said part of New England in America lying and
extending betweene the bounds and limitts in the said Indenture
expressed and all Lands and Grounds Place and Places Soiles Woods
and Wood Grounds Havens Ports Rivers Waters Mines Mineralls
Jurisdiccons Rights Royalties Liberties Freedomes Imunities Privi-
ledges Franchises Preheminences and Hereditaments whatsoever bar-
gained sold enffeoffed and Confirmed or menconed or intended to
be given granted bargained sold enffeoffed aliend and confirmed to
them the said Sir Henry Roswell Sir John Young Thomas Southcott
John Humphreys John Endicott and Simond Whetcomb their Heires
and Assignes and to their Associates for ever by the said recited
Indentu[r]e To have and to hold the said part of New England in
America and other the Premisses thereby menconed to be granted
and confirmed and every parte and parcell thereof with the appur-
tenances to the said Sir Henry Roswell Sir John Young Sir Richard
Saltenstall Thomas Southcott John Humphreys John Endicott
Simond Whetcomb Isaac Johnson Samuell Aldersey John Ven
Mathew Craddock George Harwood Increase Nowell Richard Perry
Richard Bellingham Nathaniel Wright Samuell Vassall Theophilus
* Omitted in the original.
MISCELLANEOUS. 1027
Eaton Thomas Golfe Thomas Adams John Browne Samuell Browne
Thomas Hutchins William Vassall William Pincheon and George
Foxcrof t their Heires and Assignes for ever to their own proper and
absolute vse and behoofe for evermore To be holden of Our said
Royall Grandfather his Heires and Successors as of his Manner of
East Greenwich aforesaid in free and comon Soccage and not in
Capite nor by Knights Service and alsoe yeilding and paying there-
fore to Our said Royall Grandfather his Heires and Successors the
fifth part only of all the Oar of Gold and Silver which from time
to time and at all times after should be there gotten had or obteyned
for all Services Exaccons and Demands whatsoever according to the
tenour and Reservacon in the said recited Indenture expressed And
further Our said Royall Grandfather by the said Letters Patents did
Give and Grant vnto the said Sir Henry Roswell Sir John Young
Sir Richard Saltenstall Thomas Southcott John Humphreys John
Endicott Simond Whetcomb Isaac Johnson Samuell Aldersey John
Ven Mathew Craddock George Harwood Encrease Nowell Richard
Perrey Richard Bellingham Nathaniel Wright Samuell Vassall The-
ophilus Eaton Thomas Golfe Thomas Adams John Browne Samuell
Browne Thomas Hut[c]hins William Vassall William Pincheon and
George Foxcroft their Heires and Assignes All that part of New
England in America which lyes and extends betweene a Greate River
called Monomack als Merrimack River and a certaine other River
there called Charles River being in the Bottom of a certaine Bay there
comonly called Massachusetts als Mattachusetts als Massatusetts Bay
and alsoe all and singular those Lands and Hereditaments whatso-
ever lying within the space of Three English Miles on the South part
of the said River called Charles River or of any or every part thereof
and alsoe all and singuler the Lands and Hereditaments whatsoever
lying and being within the space of Three English Miles to the South-
ward of the Southernmost part of the said Bay called Massachusetts
als Mattachusetts als Massatusetts Bay And alsoe all those Lands and
Hereditaments whatsoever which lye and bee within the space of
Three English Miles to the Northward of the said River called Mono-
mack als Merrimack or to the Northward of any and every parte
thereof And all Lands and Hereditaments whatsoever lyeing within
the limitts aforesaid North and South in Latitude and in Breadth
and in length and Longitude of and within all the Breadth aforesaid
throughout the Main Lands there from the Atlantick or Western Sea
and Ocean on the East parte to the South Sea on the West parte And
all Lands Grounds Place and Places Soils Wood and Wood Lands
Havens Ports Rivers Waters and Hereditaments whatsoever lying
within the said bounds and limitts and every part and parcell thereof
And alsoe all Islands in America aforesaid in the said Seas or either
of them on the Western or Eastern Coasts or partes of the said Tracts
of Lands thereby menconed to be given and granted or any of them
And all Mines and Mineralls as well Royall Mines of Gold and Silver
as other Mines and Mineralls whatsoever in the said Lands and
premisses or any parte thereof and free Libertie of Fishing in or
within any of the Rivers and Waters within the bounds and limitts
aforesaid and the Seas thereunto acljoyning and of all Fishes Royall
Fishes Whales Balene Sturgeon and other Fishes of what kind or
nature soever that should at any time thereafter be taken in or within
the said Seas or Waters or any of them by the said Sir Henry Ros-
well Sir John Young Sir Richard Saltenstall Thomas Southcott
1028 MISCELLANEOUS.
John Humphryes John Endicott Simond Whetcomb Isaac Johnson
Samuell Aldersey John Ven Mathew Craddock George Harwood
Increase Nowell Richard Perrey Richard Bellingham Nathaniel
Wright Samuell Vassall Theophilus Eaton Thomas Golfe Thomas
Adams John Browne Samuell Browne Thomas Hutchins William
Vassall William Pincheon and George Foxcroft their Heires or
Assignes or by any other person or persons whatsoever there Inhabit-
ing by them or any of them to be appointed to Fish therein Provided
alwayes that if the said Lands Islands or any the premisses before
menconed and by the said Letters Patents last menconed intended
and meant to be granted were at the time of granting of the said
former Letters Patents dated the third day of November in the Eigh-
teenth yeare of the Reigne of his late Majesty King James the First
actually possessed or inhabited by any other (Christian Prince or State
or were within the bounds Limitts or Territories of the said Southern
Colony then before granted by the said King to be planted by divers
of his Loveing Subjects in the South parts of America That then the
said Grant of Our said Royall Grandfather should not extend to any
such parts or parcells thereof soe formerly inhabited or lying within
the bounds of the Southern Plantacon as aforesaid but as to those
parts or parcells soe possessed or inhabited by any such Christian
Prince or State or being within the boundaries afororesaid should be
vtterly void To Have and to hold possesse and enjoy the said parts of
New England in America which lye extend and are abutted as
aforesaid and every part and parcell thereof and all the Islands
Rivers Ports Havens Waters Fishings Fishes Mines Minerals Juris-
dicons Franchises Royalties Riverties * Priviledges Comodities and
premisses whatsoever with the Appurtenances vnto the said Sir
Henry Roswell Sir John Young Sir Richard Saltenstall Thomas
Southcott John Humphreys John Endicott Simond Whetcomb
Isaac Johnson Samuell Aldersey John Ven Mathew Craddock
George Harwood Increase Nowell Richard Perry Richard Belling-
ham Nathaniell Wright Samuell Vassall Theophilus Eaton Thomas
Golfe Thomas Adams John Browne Samuell Browne Thomas
Hutchins William Vassall William Pincheon and George Fox-
croft their Heires and Assignes for ever To the only proper and
absolute yse and behoof e of the said Sir Henry Roswell Sir John
Young Sir Richard Saltenstall Thomas Southcott John Humphryes
John Endicott Simond Whetcomb Isaac Johnson Samuell Aldersey
John Ven Mathew Craddock George Harwood Increase Nowell
Richard Perry Richard Bellingham Nathaniell Wright Samuell
Vassall Theophilus Eaton Thomas Golfe Thomas Adams John
Browne Samuell Browne Thomas Hutchins William Vassall William
Pincheon and George Foxcroft their Heires and Assignes for ever-
more To be holden of Our said Royall Grandfather his Heires and
Successors as of his Manner of East Greenwich in the County of
Kent within the Realme of England in free and Comon Soccage and
not in Capite nor by Knights Service And alsoe yielding and paying
therefore to Our said Royall Grandfather his Heires and Successors
the Fifth part only of all the Oar of Gold and Silver which from
time to time and at all times thereafter should be gotten had and
obteyned for all services Exacons and demands whatsoever Provided
alwayps nnd his Majesties expresse Will and meaning was that only
* Liberties.
MISCELLANEOUS. 1029
one Fifth parte of all the Gold and Silver Oar above menconed in
the whole and no more should be answered reserved and payable vnto
Our said Royall Grandfather his Heires and Successors by colour or
vertue of the said last menconed Letters Patents the double reserva-
cons or recitalls aforesaid or any thing therein conteyned notwith-
standing And to the end that the affaires and businesse which from
time to time should happen and arise concerning the said Lands and
the Plantacons of the same might be the better managed and ordered
and for the good Government thereof Our said Royall Grandfather
King Charles the First did by his said Letters Patents Create and
make the said Sir Henry Roswell Sir John Young Sir Richard
Saltenstall Thomas Southcott John Humphreys John Endicott
Symond Whetcomb Isaac Johnson Samuell Aldersey John Ven
Mathew Caddock George Harwood Increase Nowell Richard Perry
Richard Bellingham Nathaniell Wright Samuell Vassall and The-
ophilus Eaton Thomas Golfe Thomas Adams John Browne Samuell
Browne Thomas Hutchins William Vassal William Pincheon and
George Foxcroft and all such others as should thereafter be admitted
and made free of the Company and Society therein after menconed
one Body Politique and Corporate in fact and name by the Name
of the Governour and Company of the Massachusetts Bay in New
England and did grant vnto them and their Successors divers powers
Liberties and Priviledges as in and by the said Letters Patents may
more fully and at large appeare And whereas the said Governour
and Company of the Massachusetts Bay in New England by vertue
of the said Letters Patents did settle a Collony of the English in the
said parts of America and divers good Subjects of this Kingdome
incouraged and invited by the said Letters Patents did Transport
themselves and their Effects into the same whereby the said Plantacon
did become very populous and divers Counties Townes and Places
were created erected made setforth or designed within the said parts
of America by the said Governour and Company for the time being
And UV/ryvv/.s' in the Terme of the holy Trinity in the Thirty Sixth
yea re of the Reigne of Our dearest Vncle King Charles the Second
a Judgment was given in Our Court of Chancery then sitting at West-
minster vpon a Writt of Scire Facias brought and prosecuted in the
said Court against the Governour and Company of the Massachusetts
Bay in New England that the said Letters Patents of Our said Royall
Grandfather King Charles the First bearing date at Westminster
the Fourth day of March in the Fourth yeare of his Reigne made
and granted to the said Governour and Company of the Massa-
chusetts Bay in New England and the Enrollment of the same
should be cancelled vacated and annihilated and should be brought
into the said Court to be cancelled (as in and by the said Judgment
remaining vpon Record in the said Court doth more at large appeare)
And whereas severall persons employed as Agents in behalfe of Our
said Collony of the Massachusetts Bay in New England have made
their humble application vnto Vs that Wee would be graciously
pleased by Our Royall Charter to Incorporate Our Subjects in Our
said Collony and to grant and confirme vnto them such powers
priviledges and Franchises as [in] Our Royall Wisdome should be
thought most conduceing to Our Interest and Service and to the
Welfare and happy State of Our Subjects in New England and Wee
being graciously pleased to gratifie Our said Subjects And alsoe to
the end Our good Subjects within Our Collony of New Plymouth
1030 MISCELLANEOUS.
in New England aforesaid may be brought vnder such a forme of
Government as may put them in a better Condicon of defence and
considering aswell the granting vnto them as vnto Our Subjects in
the said Collony of the Massachusetts Bay Our Royall Charter with
reasonable Powers and Priviledges will much tend not only to the
safety but to the Flourishing estate of Our Subjects in the said parts
of New England and alsoe to the advanceing of the ends for which
the said Plantacons were at first encouraged of Our especiall Grace
certaine knowledge and meer Mocon have willed and ordeyned and
Wee doe by these presents for Vs Our Heires and Successors Will and
Ordeyne that the Territories and Collonyes comonly called or known
by the Names of the Collony of the Massachusetts Bay and Collony
of New Plymouth the Province of Main the Territorie called Accadia
or Nova Scotia and all that Tract of Land lying betweene the said
Territorifon'es of Nova Scotia and the said Province of Main be
Erected Vnited and Incorporated And Wee doe by these presents
Vnite Erect and Incorporate the same into one real! Province by the
Name of Our Province of the Massachusetts Bay in New England
And of Our especial Grace certaine knowledge and meer mocon Wee
have given and granted and by these presents for Vs Our Heires and
Successors doe give and grant vnto Our good Subjects the Inhabitants
of Our said Province or Territory of the Massachusetts Bay and their
Successors all that parte of New England in America lying and
extending from the greate River comonly called Monomack als Merri-
mack on the North part and from three Miles Northward of the said
River to the Atlantick or Western Sea or Ocean on the South part
and all the Lands and Hereditaments whatsoever lying within the.
limitts aforesaid and extending as farr as the Outermost Points or
Promontories of Land called Cape Cod and Cape Mallabar North
and South and in Latitude Breadth and in Length and Longitude
of and within all the Breadth and Compass aforesaid throughout the
Main Land there from the said Atlantick or Western Sea and Ocean
on the East parte toVards the South Sea or Westward as far as Our
Collonyes of Rhode Island Connecticut and the Marragansett *
Countrey all f alsoe all that part or porcon of Main Land beginning
at the Entrance of Pescata way Harbour and soe to pass vpp the same
into the River of Newickewannock and through the same into the
furthest head thereof and from thence Northwestward till One Hun-
dred and Twenty Miles be finished and from Piscata way Harbour
mouth aforesaid North-Eastward along the Sea Coast to Sagadehock
and from the Period of One Hundred and Twenty Miles aforesaid
to crosse over Land to the One Hundred and Twenty Miles before
reckoned vp into the Land from Piscataway Harbour through
Newickawannock River and alsoe the North halfe of the Isles and
Shoals together with the Isles of Cappawock and Nantukett near
Cape Cod aforesaid and alsoe [all f] Lands and Hereditaments
lying and being in the Countrey and Territory comonly called
Accadia or Nova Scotia And all those Lands and Hereditaments
lying and extending betweene the said Countrey or Territory of Nova
Scotia and the said River of Sagadahock or any part thereof And
all Lands Grounds Places Soiles Woods and Wood grounds Havens
Ports Rivers Waters and other Hereditaments and premisses whatso-
* Narragansett.
f In printed copies this is •' the,'1 but the omission in the original seems better
supplied as above.
MISCELLANEOUS. 1031
ever lying within the said bounds and limitts aforesaid and every
part and parcell thereof and alsoe all Islands and Isletts lying within
tenn Leagues directly opposite to the Main Land within the said
bounds and all Mines and Mineralls aswell Royall Mines of Gold and
Silver as other Mines and Mineralls whatsoever in the said Lands
and premisses or any parte thereof To Have and to hold the said
Territories Tracts Countreys Lands Hereditaments and all and singu-
lar other the premisses with their and every of their Appurtences
to Our said Subjects the Inhabitants of Our said Province of the
Massachusetts Bay in New England and their Successors to their only
proper vse and behoofe for evermore To be holden of Vs Our Heires
and Successors as of Our Mannor of East Greenwich in the County
of Kent by Fealty only in free and Comon Soccage y eliding and pay-
ing therefore yearly to Vs Our Heires and Successors the Fifth part
of all Gold and Silver Oar and pretious Stones which shall from
time to time and at all times hereafter happen to be found gotten
had and obteyned in any of the said Lands and premisses or within
any part thereof Provided neverthelesse and Wee doe for Vs Our
Heires and Successors Grant and ordeyne that all and every such
Lands Tenements and Hereditaments and all other estates which any
person or persons or Bodyes-Politique or Corporate Townes Villages
Colled ges or Schooles doe hold and enjoy or ought to hold and enjoy
within the bounds aforesaid by or vnder any Grant or estate duely
made or granted by any Generall Court formerly held or by vertue
of the Letters Patents herein before recited or by any other lawfull
Right or Title whatsoever shall be by such person and persons Bodyes
Politique and Corporate Townes Villages Colldeges or Schooles their
respective Heires Successors and Assignes for ever hereafter held and
enjoyed according to the purport and Intent of such respective Grant
vnder and Subject neverthelesse to the Rents and Services thereby
reserved or made payable any matter or thing whatsoever to the
contrary notwithstanding And Provided alsoe that nothing herein
conteyned shall extend or be vnderstood or taken to impeach or
prejudice any right title Interest or demand which Samuell Allen
of London Merchant claiming from and vnder John Mason Esqr
deceased or an}' other person or persons hath or have or claimeth
to have hold or enjoy of in to or out of any part or parts of the prem-
isses scituate within the limitts above menconed But that the said
Samuel Allen and all and every such person and persons may and
shall have hold and enjoy the same in such manner (and no other
then) as if these presents had not been had or made It being Our
further Will and Pleasure that no Grants or Conveyances of any
Lands Tenements or Hereditaments to any Townes Colledges Schooles
of Learning or to any private person or persons shall be judged or
taken to be avoided or prejudiced for or by reason of any want or
defect of Form but that the same stand and remaine in force and be
mainteyned adjudged and have effect in the same manner as the same
should or ought before the time of the said recited Judgment accord-
ing to the Laws and Rules then and there vsually practised and
allowed And Wee doe further for Vs Our Heires and Successors
Will Establish and ordeyne that from henceforth for ever there shall
be one Governour One Leivten1 or Deputy Governour and One Secre-
tary of Our said Province or Territory to be from time to time
appointed and commissionated by Vs Our Heires and Successors and
1032 MISCELLANEOUS.
Eight and Twenty Assistants or Councillors to be advising and
assisting to the Governour of Our said Province or Territory for the
time being as by these presents is hereafter directed and appointed
which said Councillors or Assistants are to be Constituted Elected
and Chosen in such forme and manner as hereafter in these presents
is expressed And for the better Execucon of Our Royall Pleasure
and Grant in this behalfe Wee doe by these presents for Vs Our
Heires and Successors Nominate Ordeyne make and Constitute Our
Trusty and Welbeloved Simon Broadstreet John Richards Nathaniel
Saltenstall Wait Winthrop John Phillipps James Russell Samuell
Sewall Samuel Appleton Barthilomew Gedney John Hawthorn
Elisha Hutchinson Robert Pike Jonathan Curwin John Jolliffe
Adam Winthrop Richard Middlecot John Foster Peter Serjeant
Joseph Lynd Samuell Hayman Stephen Mason Thomas Hinckley
William Bradford John Walley Barnabas Lothrop Job Alcott
Samuell Daniell and Silvanus Davis Esquiers the first and present
Councillors or Assistants of Our said Province to continue in their
said respective Offices or Trusts of Councillors or Assistants vntill
the last Wednesday in May which shall be in the yeare of Our Lord
One Thousand Six Hundred Ninety and Three and vntill other
Councillors or Assistants shall be chosen and appointed in their stead
in such manner as in those presents is expressed And Wee doe further
by these presents Constitute and appoint Our Trusty and wel-
beloved Isaac Addington Esquier to be Our first and present Secre-
tary of Our said Province during Our Pleasure And Our Will and
Pleasure is that the Governour of Our said Province from the time
being shall have authority from time to time at his discretion to
assemble and call together the Councillors or Assistants of Our said
Province for the time being and that the said Governour with the
said Assistants or Councillors, or Seaven of them at the least shall
and may from time to time hold and keep a Councill for the ordering
and directing the Affaires of Our said Province And further Wee
Will and by these presents for Vs Our Heires and Successors doe
ordeyne and Grant that there shall and may be convened held and
kept by the Governour for the time being vpon every last Wednesday
in the Moneth of May every yeare for ever and at all such other
times as the Governour of Our said Province shall think fitt and
appoint a great and Generall Court of Assembly Which said Great
and Generall Court of Assembly shall consist of the Governour and
Councill or Assistants for the time being and of such Freeholders of
Our said Province or Territory as shall be from time to time elected
or deputed by the Major parte of the Freeholders and other Inhab-
itants of the respective Townes or Places who shall be present at such
Eleccons Each of the said Townes and Places being hereby impow-
ered to Elect and Depute Two Persons and noe more to serve for
and represent them respectively in the said Great and Generall Court
or Assembly To which Great and Generall Court or Assembly to be
held as aforesaid Wee doe hereby for Vs Our Heires and Successors
give and grant full power and authority from time to time to direct
appoint and declare what Number each County Towne and Place
shall Elect and Depute to serve for and represent them respectively
in the said Great and Generall Court or Assembly Provided alwayes
that noe Freeholder or other Person shall have a Vote in the Eleccon
of Members to serve in any Greate and Generall Court or Assembly
MISCELLANEOUS. 1033
to be held as aforesaid who at the time of such Eleccon shall not have
an estate of Freehold in Land within Our said Province or Territory
to the value of Forty Shillings per Annu at the least or other estate
to the value of Forty pounds Sterl' And that every Person who
shall be soe elected shall before he sitt or Act in the said Great and
Genera 11 Court or Assembly take the Oaths menconed in an Act of
Parliament made in the first yeare of Our Reigne Entituled an Act
for abrogateing of the Oaths of Allegiance and Supremacy and
appointing other Oaths and thereby appointed to be taken instead
of the Oaths of Allegiance and Supremacy and shall make Repeat
and Subscribe the Declaracon menconed in the said Act before the
Governour and Leivten* or Deputy Governour or any two of the
Assistants for the time being who shall be there vn to authorized and
Appointed by Our said Governour and that the Governour for the
time being shall have full power and Authority from time to time
as he shall Judge necessary to adjourne Prorogue and dissolve all
Great and Generall Courts or Assemblyes met and convened as afore-
said And Our Will and Pleasure is and Wee doe hereby for Vs Our
Heires and Successors Grant Establish and Ordeyne that yearly once
in every yeare for ever hereafter the aforesaid Number of Eight and
Twenty Councillors or Assistants shall be by the Generall Court or
Assembly newly chosen that is to say Eighteen at least of the Inhab-
itants of or Proprietors of Lands within the Territory formerly called
the Collony of the Massachusetts Bay and four at the least of the
Inhabitants of or Proprietors of Lands within the Territory formerly
called New Plymouth and three at the least of the Inhabitants of
or Proprietors of Land within the Territory formerly called the
Province of Main and one at the least of the inhabitants of or Pro-
prietors of Land within the Territory lying between the River of
Sagadahoc and Nova Scotia. And that the said Councillors or
Assistants or any of them shall or may at any time hereafter be
removed or displaced from their respective Places or Trust of Coun-
cillors or Assistants by any Great or Generall Court or Assembly
And that if any of the said Councillors or Assistants shall happen to
dye or be removed as aforesaid before the Generall day of Eleccon
That then and in every such Case the Great and Generall Court or
Assembly at their first sitting may proceed to a New Eleccon of one
or more Councillors or Assistants in the roome or place of such Coun-
cillors or Assistants soe dying or removed And Wee doe further
Grant and Ordeyne that it shall and may be lawfull for the said
Governour with the advice and consent of the Councill or Assistants
from time to time to nominate and appoint Judges Commissioners
of Oyer and Terminer Sheriffs Provosts Marshalls Justices of the
Peace and other Officers to Our Councill and Courts of Justice belong-
ing Provided alwaves that noe such Nominacon or Appointment of
Officers be made without notice first given or sumons yssued out
seaven dayes before such Nominacon or Appointment vnto such of
the said Councillors or Assistants as shall be at that time resideing
within Our said Province And Our Will and Pleasure is that the
Governour and Leivten1 or Deputy Governour and Councillors or
Assistants for the time being and all other Officers to be appointed
or Chosen as aforesaid shall before the Vndertaking the Execucon
of their Offices and Places respectively take their severall and respec-
tive Oaths for the due and faithfull performance of their duties in
1034 MISCELLANEOUS.
their severall and respective Offices and Places and alsoe the Oaths
appointed by the said Act of Parliament made in the first yeare of
Our Reigne to be taken instead of the Oaths of Allegiance and
Supremacy and shall make repeate and subscribe the Declaracon
menconed in the said Act before such Person or Persons as are by
these presents herein after appointed (that is to say) The Governour
of Our said Province or Territory for the time being shall take the
said Oaths and make repeate and subscribe the said Decleracon before
the Leivten1 or Deputy Governour or in his absence before any two
or more of the said Persons hereby Nominated and appointed the
present Councillors or Assistants of Our said Province or Territory
to whom Wee doe by these presents give full power and Authority
to give and administer the same to Our said Governour accordingly
and after Our said Governour shall be sworn and shall have sub-
scribed the sd Declaracon that then Our Leivten* or Deputy Governour
for the time being and the Councillors or Assistants before by these
presents Nominated and appointed shall take the said Oaths and
make repeat and subscribe the said Declaracon before Our said Gov-
ernour and that every such person or persons as shall (at any time
of the Annuall Eleccons or otherwise vpon death or removeall) be
appointed to be the New Councillors or Assistants and all other
Officers to bee hereafter chosen from time to time shall take the Oaths
to their respective Offices and places belonging and alsoe the said
Oaths appointed by the said Act of Parliament to be taken instead
of the Oaths of Allegiance and Supremacy and shall make repeate
and subscribe the declaracon menconed in the said Act before the
Governour or Leivten1 or Deputy Governour or any two or more
Councillors or Assistants or such other Person or Persons as shall be
appointed thereunto by the Governour for the time being to whom
Wee doe therefore by these presents give full power and authority
from time to time to give and administer the same respectively
according to Our true meaning herein before declared without any
Comission or further Warrant to bee had and obteyned from vs Our
Heires and Successors in that behalf e And Our Will and Pica -ure
is and Wee doe hereby require and Comand that all and every person
and persons hereafter by Vs Our Heires and Successors nominated
and appointed to the respective Offices of Governour or Leiv1 or
Deputy Governour and Secretary of Our said Province or Territory
(which said Governour or Leiv1 or Deputy Governour and Secretary
of Our said Province or Territory for the time being Wee doe hereby
reserve full power and Authority to Vs Our Heires and Successors
to Nominate and appoint accordingly shall before he or they be
admitted to the Execucon of their respective Offices take aswell the
Oath for the due and f aithfull performance of the said Offices respec-
tivety as alsoe the Oaths appointed by the said Act of Parliament
made in the First yeare of Our Reigne to be taken instead of the said
Oaths of Allegiance and Supremacy and shall alsoe make repeate
and subscribe the Declaracon appointed by the said Act in such
manner and before such persons as aforesaid And further Our Will
and Pleasure is and Wee doe hereby for Vs Our Heires and Suc-
cessors Grant Establish and Ordaine That all and every of the Sub-
jects of Vs Our Heires and Successors which shall goe to and Inhabit
within Our said Province and Territory and every of their Children
which shall happen to be born there or on the Seas in goeing thither
MISCELLANEOUS. 1035
or returning from thence shall have and enjoy all Libertyes and
Immunities of Fre and naturall Subjects within any of the Dominions
of Vs Our Heires and Successors to all Intents Construccons and
purposes whatsoever as if they and every of them were borne within
this Our Realme of England and for the greater Ease and Encourage-
ment of Our Loveing Subjects Inhabiting our said Province or Terri-
tory of the Massachusetts Bay and of such as shall come to Inhabit
there Wee doe by these presents for vs Our heires and Successors
Grant Establish and Ordaine that for ever hereafter there shall be
a liberty of Conscience allowed in the Worshipp of God to all Chris-
tians (Except Papists) Inhabiting or which shall Inhabit or be
Resident within our said Province or Territory And Wee doe hereby
Grant and Ordaine that the Governor or leivetent or Deputy Gouernor
of our said Province or Territory for the time being or either of
them or any two or more of the Councill or Assistants for the time
being as shall be thereunto appointed by the said Gouernor shall and
may at all times and from time to time hereafter have full Power
and Authority to Administer and give the Oat lies appointed by the
said Act of Parliament made in the first yeare of Our Reigne to be
taken instead of the Oathes of Allegiance and Supremacy to all and
every person and persons which are now Inhabiting or resideing
within our said Province or Territory or which shall at any time or
times hereafter goe or passe thither And Wee doe of our further
Grace certaine knowledge and meer mocon Grant Establish and
Ordaine for Vs our heires and Successors that the great and Generall
Court or Assembly of our said Province or Territory for the time
being Convened as aforesaid shall for ever have full Power and
Authority to Erect and Constitute Judicatories and Courts of Record
or other "Courts to be held in the name of Vs Our heires and suc-
cessors for the Hearing Trying and Determining of all manner of
Crimes Offences Pleas Processes Plaints Accons Matters Causes and
things whatsoever ariseing or happening within Our said Province
or Territory or between persons Inhabiting or resideing there whether
the same be Criminall or Civil and whether the said Crimes be
Capitall or not Capitall and whether the said Pleas be Reall per-
sonall or mixt and for the awarding and makeing out of Execution
thereupon To which Courts and Judicatories wee doe hereby for
vs our heirs and Successors Give and Grant full power and Authority
from time to time to Administer oathes for the better Discovery of
Truth in any matter in Controversy or depending before them And
wee doe for vs Our Heires and Successors Grant Establish and
Ordaine that the Gouernor of our said Province or Territory for the
time being with the Councill or Assistants may doe execute or per-
forme all that is necessary for the Probate of Wills and Granting
of Administracons .for touching and concerning any Interest or
Estate which any person or persons shall have within our said
Province or Territory And whereas Wee judge it necessary that all
our Subjects should have liberty to Appeale to vs our heires and
Successors in Cases that may deserve the same Wee doe by these
presents Ordaine that incase either party shall not rest satisfied
with the Judgement or Sentence of any Judicatories or Courts within
our said Province or Territory in any Personal! Accon wherein the
matter in difference doth exceed the value of three hundred Pounds
Sterling that then he or they may appeale to vs Our heires and Sue-
1036 MISCELLANEOUS.
cessors in our or their Privy Councill Provided such Appeale be
made within Fourteen dayes after ye Sentence or Judgment given
and that before such Appeale be allowed Security be given by the
party or parties appealing in the value of the matter in Difference
to pay or Answer the Debt or Damages for the which Judgement
or Sentence is given With such Costs and Damages as shall be
Awarded by vs Our Heires or Successors incase the Judgement or
Sentence be affirmed And Provided alsoe that no Execution shall be
stayd or suspended by reason of such Appeale vnto vs our Heires
and Successors in our or their Privy Councill soe as the party Sueing
or takeing out Execution doe in the like manner give Security to the
value of the matter in difference to make Restitucion in Case the
said Judgement or Sentence be reversed or annul'd vpon the said
Appeale And we doe further for vs our Heires and Successors Give
and Grant to the said Governor and the great and Generall Court or
Assembly of our said Province or Territory for the time being full
power and Authority from time to time to make ordaine and estab-
lish all manner of wholesome and reasonable Orders Laws Statutes
and Ordinances Directions and Instructions either with penalties or
without (soe as the same be not repugnant or contrary to the Lawes
of this our Realme of England) as they shall Judge to be for the
good and welfare of our said Province or Territory and for the
Gouernment and Ordering thereof and of the People Inhabiting or
who shall Inhabit the same and for the necessary support and Defence
of the Government thereof And wee doe for vs our Heires and Suc-
cessors Giue and grant that the said Generall Court or Assembly
shall have full power and Authority to name and settle annually all
Civill Officers within the said Province such Officers Excepted the
Election and Constitution of whome wee have by these presents
reserved to vs Our Heires and Successors or to the Governor of our
said Province for the time being and to Settforth the severall Duties
Powers and Lymitts of every such Officer to be appointed by the said
Generall Court or Assembly and the formes of such Oathes not
repugnant to the Lawes and Statutes of this our Realme of England
as shall be respectiuely Administered vnto them for the Execution
of their severall Offices and places And alsoe to impose Fines mulcts
Imprisonments and other Punishments And to impose and leavy
proportionable and reasonable Assessments Rates and Taxes vpon
the Estates and Persons of all and every the Proprietors and Inhab-
itants of our said Province or Territory to be Issued and disposed
of by Warrant vnder the hand of the Governor of our said Province
for the time being with the advice and Consent of the Councill for
Our service in the necessity defence and support of our Government
of our said Province or, Territory and the Protection and Preserva-
tion of the Inhabitants there according to such Acts as are or shall
be in force within our said Province and to dispose of matters and
things whereby our Subjects inhabitants of our said Province may
be Religiously peaceably and Civilly Governed Protected and De-
fended soe as their good life and orderly Conversation may win the
Indians Natives of the Country to the knowledge and obedience of
the onely true God and Saviour of Mankinde and the Christian Faith
which his Royall Majestie our Royall Grandfather king Charles the
nrst in his said Letters Patents declared was his Royall Intentions
MISCELLANEOUS. 1037
And the Adventurers free Possession * to be the Princepall end of
the said Plantation And for the better secureing and maintaining
Liberty of Conscience here by granted to all persons at any time being
and resideing within our said Province or Territory as aforesaid
Willing Commanding and Requireing and by these presents for vs
Our heires and Successors Ordaining and appointing that all such
Orders Lawes Statutes and Ordinances Instructions and Directions
as shall be soe made and published vnder our Seale of our said
Province or Territory shall be Carefully and duely observed kept
and performed and put in Execution according to the true intent and
meaning of these presents Provided alwaies and Wee doe by these
presents for vs Our Heires and Successors Establish and Ordaine
that in the frameing and passing of all such Orders Laws Satutes
and Ordinances and in all Elections and Acts of Government what-
soever to be passed made or done by the said Generall Court or
Assembly or in Councill the Governor of our said Province or Terri-
tory of the Massachusetts Bay in New England for the time being
shall have the Negative voice and that without his consent or Appro-
bation signified and declared in Writeing no such Orders Laws
Statutes Ordinances Elections or other Acts of Government whatso-
ever soe to be made passed or done by the said Generall Assembly
or in Councill shall be of any Force effect or validity anything herein
contained to the contrary in anywise notwithstanding And wee doe
for vs Our Heires and Successors Establish and Ordaine that the
said Orders Laws Statutes and Ordinances be by the first opportunity
after the makeing thereof sent or Transmitted vnto vs Our Heires
and Successors vnder the Publique Seale to be appointed by vs for
Our or their approbation or Disallowance And that incase all or
any of them shall at any time within the space of three yeares next
after the same shall have been presented to vs our Heires and Suc-
cessors in Our or their Privy Councill be disallowed and rejected and
soe signified by vs Our Heires and Successors vnder our or their
Signe Manuall and Signett or by or in our or their Privy Councill
vnto the Governor for the time being then such and soe many of them
as shall be soe disallowed and riected f shall thenceforth cease and
determine and become vtterly void and of none effect Provided
alwais that incase Wee our Heires or Successors shall not within the
Terme of Three Yeares after the presenting of such Orders Lawes
Statutes or Ordinances as aforesaid signifie our or their Disallowance
of the same Then the said orders Lawes Statutes or Ordinances shall
be and continue in full force and effect according to the true Intent
and meaneing of the same vntill the Expiracon thereof or that the
same shall be Repealed by the Generall Assembly of our said province
for the time being Provided alsoe that it shall and may be Lawfull
for the said Governor and Generall Assembly to make or passe any
Grant of Lands lying within the Bounds of the Colonys formerly
called the Collonys of the Massachusetts Bay and New Plymouth
and province of Main in such manner as heretofore they might have
done by vertue of any former Charter or Letters Patents which grants
of lands within the Bounds aforesaid Wee doe hereby Will and
ordaine to be and continue for ever of full force and effect without
* Profession. t Rejected.
1038 MISCELLANEOUS.
pur further Approbation or Consent And soe as Neverthelesse and
it is Our Royall Will and Pleasure That noe Grant or Grants of any
Lands lying or extending from the River of Sagadehock to the Gulph
of St. Lawrence and Canada Rivers and to the Main Sea Northward
and Eastward to be made or past by the Governor and Generall
Assembly of our said Province be or any force validity or Effect
vntill Wee Our Heires and Successors shall have Signified Our or
their Approbacon of the same And Wee doe by these presents for vs
Our Heires and Successors Grant Establish and Ordaine that the
Governor of our said Province or Territory for the time being shall
have full Power by himselfe or by any Cheif Comander or other
Officer or Officers to be appointed by him from time to time to traine
instruct Exercise and Govcrne the Militia there and for the speciall
Defence and Safety of Our said Province or Territory to assemble in
Martial Array and put in Warlike posture the Inhabitants of Our
said Province or Territory and to lead and Conduct them and with
them to Encounter Expulse Repell Resist and pursue by force of
Armes aswell by Sea as by Land within or without the limitts of
Our said Province or Territory and alsoe to kill slay destroy and
Conquer by all fitting wayes Enterprises and meanes whatsoever all
and every such Person and Persons as shall at any time hereafter
Attempt or Enterprize the destruccpn Invasion Detriment or Annoy-
ance of Our said Province or Territory and to vse and exercise the
Law Martiall in time of actual! Warr Invasion or Rebellion as occa-
sion shall necessarily require and alsoe from time to time to Erect
Forts and to fortifie any place or Places within Our said Province
or Territory and the same to furnish with all necessary Amunicpn
Provisions and Stores of Warr for Offence or Defence and to comitt
from time to time the Custody and Government of the same to such
Person or Persons as to him shall seem meet And the said Forts and
Fortificacons to demolish at his Pleasure and to take and surprise
by all waies and meanes whatsoever all and every such Person or
Persons with their Shipps Arms Ammuncon and other goods as shall
in a hostile manner Invade or attempt the Invading Conquering or
Annoying of Our said Province or Territory Provided alwayes and
Wee doe by these presents for Vs Our Heires and Successors Grant
Establish and Ordeyne That the said Governour shall not at any
time hereafter by vertue of any power hereby granted or hereafter
to be granted to him Transport any of the Inhabitants of Our said
Province or Territory or oblige them to march out of the Limitts
of the same without their Free and voluntary consent or the Consent
of the Great and Generall Court or Assembly of Our said Province
or Territory nor grant Comissions for exerciseing the Law Martiall
vpon any the Inhabitants of Our said Province or Territory without
the Advice and Consent of the Councill or Assistants of the same
Provided in like manner and Wee doe by these presents for Vs Our
Heires and Successors Constitute and Ordeyne that when and as often
as the Governour of Our said Province for the time being shall
happen to dye or be displaced by Vs Our Heires or Successors or be
absent from his Government That then and in any of the said Cases
the Leiytenant or Deputy Governour of Our said Province for the
time being shall have full power and authority to doe and execute
all and every such Acts Matters and things which Our Governour
MISCELLANEOUS. 1039
of Our said Province for the time being might or could by vertue of
these Our Letter Patents lawfully doe or execute if he were personally
present vntill the returne of the Governour soe absent or Arivall or
Constitucon of such other Governour as shall or may be appointed
by Vs Our Heires or Successors in his stead and that when and as
often as the Governour and Leivtenant or Deputy Governour of Our
said Province or Territory for the time being shall happen to dye or
be displaced by Vs Our Heires or Successors or be absent from Our
said Province and that there shall be no person within the said Prov-
ince Comissionated by Vs Our Heires or Successors to be Governour
within the same Then and in every of the said cases the Councill
or Assistants of Our said Province shall have full power and Author-
ity and Wee doe hereby give and grant vnto the said Councill or
Assistants of Our said Province for the time being or the Major
parte of them full power and Authority to doe and execute all and
every such Acts matters and things which the said Governour or
Leivtenant or Deputy Governour of Our said Province or Territory
for the time being might or could lawfully doe or exercise if they or
either of them were personally present vntill the returne of the Gov-
ernour Leivtenant or Deputy Governour soe absent or Arrivall or
Constitucon of such other Governour or Leivtenant or Deputy Gov-
ernour as shall or may be appointed by Vs Our Heires or Successors
from time to time Provided alwaies and it is hereby declared that
nothing herein shall extend or be taken to Eerect or grant or allow
the Exercise of any Admirall Court Jurisdicon Power or Authority
but that the same shall be and is hereby reserved to Vs and Our Suc-
cessors and shall from time to time be Erected Granted and exercised
by vertue of Comissions to be yssued vnder the Great Scale of Eng-
land or vnder the Seale of the High Admirall or the Comissioners
for executing the Office of High Admirall of England And further
Our expresse Will and Pleasure is and Wee doe by these presents
for Vs Our Heires and Successors Ordaine and appoint that these
Our Letters Patents shall not in any manner Enure or be taken to
abridge bar or hinder any of Our loveing Subjects whatsoever to vse
and exercise the Trade of Fishing vpon the Coasts of New England
but that they and every of them shall have full and free power and
Libertie to continue and vse their said Trade of Fishing vpon the
said Coasts in any of the seas therevnto adjoyning or any Arms of
the said Seas or Salt Water Rivers where they have been wont to
fish and to build and set vpon the Lands within Our said Province
or Collony lying wast and not then possesst by perticuler Proprietors
such Wharfes Stages and Workhouses as shall be necessary for the
salting drying keeping and packing of their Fish to be taken or
gotten vpon that Coast And to Cutt down and take such Trees and
other Naterialls there growing or being or growing vpon any parts
or places lying wast and not then in possession of particuler pro-
prietors as shall be needf nil for that purpose and for all other neces-
sary easments helps and advantages concerning the Trade of Fishing
there in such manner and forme as they have been heretofore at any
time accustomed to doe without makeing any Wilfull Wast or Spoile
any thing in these presents conteyned to the contrary notwithstand-
ing And lastly for the better provideing and furnishing of Masts for
Our Royall Navy Wee doe hereby reserve to Vs Our Heires and Suc-
cessors all Trees of the Diameter of Twenty Four Inches and vpwards
1 040 MISCELLANEOUS.
of Twelve Inches from the ground growing vpon any soyle or Tract
of Land within Our said Province or Territory not heretofore
granted to any private persons And Wee doe restraine and forbid all
persons whatsoever from felling cutting or destroying any such Trees
without the Royall Lycence of Vs Our Heires and Successors first had
and obteyned vpon penalty of Forfeiting One Hundred Pounds
Sterling vnto Ous Our Heires and Successors for every such Tree
soe felled cutt or destroyed without such Lycence had and obteyned
in that behalfe anything in these presents conteyned to the contrary
in any wise Notwithstanding. In Witnesse whereof Wee have caused
these our Letters to be made Patents. Witnesse Ourselves att West-
mibster the Seaventh Day of October in the Third yeare of Our
Reigne
By Writt of Privy Seale
PlGOTT.
Pro Fine in Hanaperio quadragint Marcos
J. TREVOR C. S.
W. RAWLINSON C. S.
G. HUTCHINS C. S.*
EXTRACTS FROM MINUTES OF COLONIAL LEGISLATIVE ASSEM-
BLIES, MISCELLANEOUS BRITISH-COLONIAL AND OTHER COR-
RESPONDENCE, REPORTS, ETC.
Extract from the minutes of the Legislative Assembly of Nova Scotia.
(WEDNESDAY, 24TH FEBRUARY, 1836)
Mr. Uniacke, from the Joint Committee of the Council and this
House, reported an Address to His Majesty, which the Committee
had prepared and concurred in, in regard to the encroachments upon
the Fisheries, &c. ; and he read the same in his place, and afterwards
delivered it in at the Clerk's Table, where it was again read, and is
as follows:
To the KING'S MOST EXCELLENT MAJESTY.
The Joint Address of Your Majesty's Council and House of Assem-
bly for the Province of Nova-Scotia, now in General Assembly
convened.
MAY rr PLEASE YOUR MAJESTY — •
We, Your Majesty's Council and House of Assembly, of this Your
Majesty's loyal Province of Nova-Scotia, now convened in General
Assembly, beg leave most respectfully to submit to the consideration
of Your Majesty's Government, the great importance of preserving
unimpaired, the Rights and Privileges belonging to Your Majesty's
subjects engaged in the Fisheries upon the Coasts of this Province;
and also, to prevent Foreigners from interfering or participating in
such Rights and Privileges. That, by the Statute of the Imperial
* Sir John Trevor, Sir William Rawlinson, and Sir George Hutchins were
appointed lords commissioners of the great seal May 15, 1690; and were suc-
ceeded by Lord Somers as chancellor May 3, 1693.
MISCELLANEOUS. 1041
Parliament, passed in the 59th year of the Reign of our late Most
Gracious Sovereign George the Third, j)ower was given to His
Majesty, by and with the advice of His Privy Council, by any order
or orders in Council to be from time to time made for that purpose,
to make such Regulations and give such Directions, as may be neces-
sary to prevent Fishermen of the United States from taking, drying
or curing Fish, in the Bays or Harbors of His Majesty's Dominions
in America, or in any other manner whatever abusing the privileges
by the Treaty and Act of the Imperial Parliament reserved to them.
That, as no such Order in Council has passed, it may be presumed
that it may be extremely difficult for Your Majesty's Council to
submit such Order for Your Majesty's consideration, as may be best
adapted to meet the exigencies of the case in all Your Majesty's
Dominions in America. That your Majesty's subjects in this Prov-
ince have experienced great inconvenience and loss in this branch
of Industry, by Foreign interference — and the Province is injuriously
affected by the Illicit Trade carried on by Vessels ostensibly engaged
in the Fisheries, who hover on the Coast, and, in many cases, combine
Trade with the Fishery — a traffic, prejudicial alike to the Revenue —
the importation of British Manufactures — the honest Trader, and
the political and moral sentiments, habits and manners, of the people.
To prevent the continuance and extension of such evils, the Legis-
lature of this Your Majesty's loyal Province of Nova-Scotia, have
embodied in an Act such Regulations and Restrictions as they con-
ceive will most effectually prevent such interference in the Fishery,
and the Illicit Trade connected with it, — and, thereby secure the
Rights and Privileges recognized by the Treaty, and intended to be
guarded by the Statute. This course has become the more necessary,
as the Act of the Imperial Parliament contemplates the further Regu-
lations of the Fisheries by some such means, of which all persons
concerned will be bound to take notice. Many of the irregularities
complained of may have taken place from the want of such Regula-
tions? There is no intention of intimating that the Government of
the United States approves of, or sanctions, any interference with a
branch of the Fishery which they have expressly relinquished.
We, therefore, most earnestly and respectfully pray that Your
Majesty will be pleased to give Your Royal Assent to the said Act;
and, by an Order of Your Majesty', in Council, declare the said Act
to contain the Rules, Regulations and Restrictions, respecting the
Fisheries for the Coasts, Bays, Creeks and Harbors of Nova-Scotia.
Resolved, That the said Address be received and adopted by this
House.
Resolved, That the Council be desired to join by Committee, with
the Committee of this House, who reported the foregoing Address, in
preparing and presenting to His Excellency the Lieutenant-Governor
an Address, praying him to forward the foregoing Address to His
Majesty, with his favourable recommendation of the prayer thereof.
Ordered, That the Clerk do acquaint the Council with the above
Resolution.
*******
92909°— S. Doc. 870, 61-3, vol 3 27
1042 MISCELLANEOUS.
(MONDAY, 29th February, 1836)
A Message from the Council, by Mr. Haliburton :
MR. SPEAKER, * * *
The Council have appointed Mr. Cogswell, Mr. Tobin and Mr. Al-
lison, a Committee for the purpose of joining a Committee of this
Honorable House, in preparing an Address to His Excellency the
Lieutenant-Governor, praying His Excellency to forward the joint
Address of the Council and House of Assembly to His Majesty, on
the subject of the Bill, entitled "An Act relating to the Fisheries and
for the prevention of Illicit Trade in the Province of Nova- Scotia
and the Coasts and Harbors thereof," together with His Excellency's
favorable recommendation thereof, as desired by this Honorable
House.
And then the Messenger withdrew.
*******
(SATURDAY, 12th March, 1836.)
Mr. Uniacke, from the Joint Committees of the Council and this
House, appointed to prepare an Address to His Excellency the Lieu-
tenant-Governor, on the subject of the Act relating to the Fisheries,
and the Address to His Majesty in relation thereto, reported, that
the Committee had prepared an Address accordingly; and he read
the same in his place, and afterwards delivered it in at the Clerk's
Table, where it was again read, and is follows : —
To His Excellency Major-General, SIR COLIN-CAMPBELL.
Knight Commander of the Most Honorable Military Order of
the Bath, Lieutenant-Governor, and Commander in Chief,
in and over His Majesty's Province of Nova- Scotia, and its
Dependencies, <&c., <&c., <&c.
The Address of His Majesty's Council and House of Assembly of the
Province of Nova- Scotia, in Legislature Assembled.
MAY IT PLEASE YOUR EXCELLENCY —
The Provincial Legislature have passed an Act in the present
Session, entitled, "An Act relating to the Fisheries, and for the pre-
vention of Illicit Trade, in the Province of Nova- Scotia, and the
Coasts and Harbors thereof," to which your Excellency has been
pleased to give Your Assent. That as this Act is of more than usual
importance, as respects the rights and interests of His Majesty's Sub-
jects, and the protection of the Laws and Trade of this Province, both
branches of the Provincial Legislature, have united in an address
to our Most Gracious Sovereign, praying that His Majesty will be
most graciously pleased to give His Royal Assent to the said Act, and,
by an order in Council, declare the same to contain the Rules, Regu-
lations and Restrictions, under which the Fishery shall be conducted ;
and we respectfully request that Your Excellency will be pleased to
transmit the said Act and Address, with Your Excellency's strongest
recommendation for His Majesty's Royal Approbation.
Resolved, That the said Address be received and adopted by this
House.
Ordered, That the Committee of this House who joined in prepar-
ing said Address, do join the Committee of the Council, to wait upon
MISCELLANEOUS. 1043
His Excellency the Lieutenant-Governor with the said Address, and
the Address to His Majesty therein referred to.
Extracts from the journal of the legislative assembly of Nova
Scotia, 1843.
Lord Russell to Lord Falkland.
DOWNING STREET, 9th April, 1841.
MY LORD : I have the honor to transmit, herewith, to your Lordship,
the copy of a letter from the Under. Secretary of State for Foreign
Affairs, enclosing the copy of a note from the Minister at this Court
from the United States of America, complaining of the proceedings
of the Provincial authorities of Nova Scotia towards the vessels and
citizens of that Republic, engaged in fishing on the coasts of that
Province.
I have to request that you will make immediate enquiry into the
allegations contained in Mr. Stevenson's note, and that you will
furnish me with a detailed report on the subject, for the information
of Her Majesty's Government.
I have, etc.,
(Signed) J. RUSSELL.
The Right Honorable VISCOUNT FALKLAND, etc., etc.
[Inclosure.]
Under Secretary of State to Mr. Stephen.
FOREIGN OFFICE, 2nd April, 1841.
SIR: I am directed by Viscount Palmerston to transmit to you,
herewith, for the consideration of Lord John Russell, a copy of a note
from Mr. Stevenson, Minister from the United States of America,
relative to certain proceedings of the Colonial authorities of Nova
Scotia towards the vessels and citizens of the United States, engaged
in fishing on the neighboring Coasts of Nova Scotia.
I have, etc.
(Signed) LEVESON.
JAMES STEPHEN, Esq., etc.
(Inclosing copy of letter, Mr. Stevenson to Lord Palmerston,
March 27, 1841.)
Lord Falkland to Lord Russell.
GOVERNMENT HOUSE,
Halifax, 28th April, 1841.
MY LORD: I transmit a copy of a report of a Committee on the
Fisheries of Nova Scotia, which report has been adopted by the
House of Assembly, and to which I have been requested to call your
Lordship's attention.
The greatest anxiety is felt by the inhabitants of this Province that
the convention with the Americans, signed at London on the 20th
October, 1818, should be strictly enforced; and it is hoped that the
1044 MISCELLANEOUS.
consideration of the Report may induce your Lordship to exert your
influence in such a manner as to lead to the augmentation of the force
(a single vessel) now engaged in protecting the Fisheries on the
Banks of Newfoundland, and the south shore of Labrador^ and the
employment in addition of one or two steamers for that purpose.
The people of this Colony have not been wanting in efforts to
repress the incursions of the natives of the United States upon their
fishing grounds, but have fitted out with good effect some small armed
vessels, adapted to follow trespassers into shoal water or chase them
on the seas (and the expediency of this measure has been corroborated
by the testimony of Capt. Milne, R. N., in his Report of the Fisheries
of Newfoundland,) but finding their own means inadequate to the
suppression of this evil, the Nova Scotians earnestly entreat the fur-
ther intervention and protection of the mother country.
I have the honor to forward herewith, in accordance with a request
made to me in the same Resolutions, a case stated (raising the neces-
sary questions as to the right of Fishery which the people of these
colonies possess) for the purpose of being referred to the Crown
Officers in England, in order that the existing Treaties and the rights
of these North American Provinces under them may be more strictly
defined.
I shall feel obliged by your Lordship's allowing the opinion of the
Crown Officers to be taken on the said case, and I am authorized by
the House of Assembly here to defray any expense that may be
incurred in obtaining such opinion.
I have, etc.,
(Signed) FALKLAND.
The LORD JOHN RUSSELL, etc., etc.
[Inclosure.]
Case stated by the Right Honorable Lord Viscount Falkland,
Lieutenant Governor of Nova Scotia, at the request of the House of
Assembly of that Province, for the purpose of obtaining the opinion
of the law officers of the Crown in England.
At the Peace of 1783, a Treaty was entered into between the
United States of America and Great Britain, by which the people
of the former country obtained the right " To take fish on the Grand
Bank and all other Banks of Newfoundland, in the Gulf of Saint
Lawrence, and all other places in the sea where the inhabitants of
both countries had been used to fish before, and the liberty to fish
on such parts of the coast of Newfoundland as British Fishmen used,
but not to dry or cure fish there, and on the coasts, bays and creeks
of all other British Dominions in America." They also obtained
liberty to dry and cure fish in any of the unsettled Bays, Harbors,
and Creeks of Nova Scotia, Magdalen Islands and Labrador, but as
soon as any of them were settled this liberty was to cease, unless con-
tinued by agreement with the inhabitants.
The United States declared War against Great Britain in 1812;
peace was subsequently proclaimed, and a convention was entered
into between the two countries, and signed at London, October 20th,
1818, the first article of which is as follows —
"Whereas differences have arisen respecting the liberty claimed by
the United States for the Inhabitants thereof to take, dry and cure
fish on certain coasts, bays, harbors and creeks of His Britannic
MISCELLANEOUS. 1045
Majesty's Dominions in America, it is agreed between the high con-
tracting parties that the Inhabitants of the said United States shall
have for ever, in common with the subjects of His Britannic Majesty,
the liberty to take fish of every kind on that part of the southern coast
of Newfoundland which extends from Cape Ray to the Rameau
Islands on the western and northern coast of Newfoundland, from
the said Cape Ray to the Quirpon Islands, on the shores of the Mag-
dalen Islands, and also on the coasts, bays, harbors and creeks, from
Mount Joly on the southern coasts of Labrador, to and through the
straits of Bellisle, and thence northwardly indefinitely along the
coast, without prejudice, however, to any of the exclusive rights of
the Hudson's Bay Company, and that the American Fishermen shall
also have liberty for ever to dry and cure fish in any of the unsettled
bays, harbors and creeks of the southern part of the coasts of New-
foundland hereabove described, and of the coast of Labrador; but
so soon as the same or any portion thereof shall be settled, it shall
not be lawful for the said Fishermen to dry or cure fish on or within
at such portion so settled, without previous agreement for such pur-
pose with the inhabitants, proprietors or possessors of the ground.
And the United States hereby renounce for ever any liberty hereto-
fore enjoyed or claimed by the inhabitants thereof, to take, dry, or
cure fish on or within three marine miles of any of the coasts, bays,
creeks, or harbors of His Majesty's Dominions in America, not in-
cluded Avithin the above mentioned limits — provided, however, that
the American Fishermen shall be admitted to enter such bays or har-
bors for the purpose of shelter and of repairing damages therein, of
purchasing wood, and obtaining water, and for no other purpose
whatever. But they shall be under such restrictions as may be neces-
sary to prevent their taking, drying, or curing Fish therein, or in
any other manner abusing the privileges hereby reserved to them."
An Act passed in the 59th year of the reign of His late Majesty
George 3, chap. 38, entitled, An Act to enable His Majesty to make
regulations with respect to the taking and curing Fish on certain
parts of the coasts of Newfoundland and Labrador, and His Majesty's
other possessions in North America, according to a Convention made
between His Majesty and the United States of America. And in
the year 1836, His late Majesty William the Fourth, in the 6th year of
His' Reign, by an order in Council, assented to, and made the clauses
of a certain Act of the Assembly of Nova Scotia, the Rules, Regula-
tions, and restrictions respecting the Fisheries, on the coasts, bays,
etc. of that Province, by the first section of which, it is enacted, that
any ship, vessel or boat, which shall be foreign, and not navigated
according to the laws of Great Britain and Ireland, which shall have
been found fishing, or preparing to fish, or to have been fishing,
within three marine miles of the coasts, bays, creeks, or harbors of
this Province, such ship, vessel or boat, and their respective cargoes
shall be forfeited. Nova Scotia is indented with Bays, many of
which reach from 60 to 100 miles into the interior, such as the Bay
of Fundy, St. Mary's Bay, the Bras d'Or Lake, and Manchester Bay;
the land on the shores is entirely British territory, and Nova Scotia
proper is separated from the Island of Cape Breton by a narrow
strait called the Gut of Canso, in some parts not wider than three
quarters of a mile. In the Bay of Fundy, St. Mary's Bay, and the
1046 MISCELLANEOUS.
Gut of Canso, Americans conduct the Fishery, and their Fishing
vessels pass also through the latter, or anchor there, and not only fish,
but by using bait, toll the mackerel into deep waters, thereby injuring
the profitable Seine Fisheries of Fox Island and Crow Harbor,
Arichat, St. Peter's Bay and other stations in the neighborhood of
Canso which formerly were the most productive Fisheries of Nova
Scotia. They also land on the Magdalen Islands, set nets and sweep
seines in the spring of the year, at a time when the Herrings resort to
those waters to spawn, thereby destroying the spawn and young fish,
and consequently ruining the Fishery.
The opinion of the Law Officers of the Crown in England is re-
quested on the following points.
1st.— Whether the Treaty of 1783 was annulled by the War of 1812,
and whether citizens of the United States possess any right of Fishery
in the waters of the Lower Provinces other than ceded to them by
the convention of 1818, and if so, what right. 2d. — Have American
citizens the right under that Convention, to enter any of the Bays of
this Province to take Fish ; if after they have so entered they prose-
cute the Fishery more than three marine miles from the shores of
such Bays; or should the prescribed distance of three marine miles
be measured from the headlands, at the entrance of such Baj^s, so as
to exclude them. 3d. — If the distance of three marine miles is to be
computed from the indents of the coast of British America, or from
the extreme headlands, and what is to be considered a headland.
4th — Have American vessels, fitted out for a Fishery, a right to pass
through the Gut of Canso, which they cannot do without coming
within the prescribed limits, or to anchor there or to Fish there ; and
is casting bait to lure fish in the track of the vessel fishing, within
the meaning of the Convention. 5th — Have American citizens a
right to land on the Magdalen Islands, and conduct the Fishery from
the shores thereof by using nets and seines; or what right of Fishery
do they possess on the shores of those Islands and what is meant by
the term shore. 6th — Have American Fishermen the right to enter
the Bays and Harbors of this Province for the purpose of purchas-
ing wood or obtaining water, having provided neither of these arti-
cles at the commencement of their voyages, in their own countries ; or
have they the right of entering such Bays and Harbors in cases of
distress, or to purchase wood and obtain water, after the usual stock
of those articles for the voyage of such Fishing craft has been
exhausted or destroyed. 7th — Under existing Treaties, what rights
of Fishery are ceded to the citizens of the United States of America,
and what reserved for the exclusive enjoyment of British subjects.
Lord Stanley to Lord Falkland.
DOWNING STREET, 28th November, 181$.
MY LORD: I have the honor to acknowledge the receipt of your
Lordship's Despatch of the llth July last, enclosing copies of two
reports made by Committees of the House of Assembly of Nova
Scotia, complaining of the encroachments of American citizens on
the Fisheries of British North America, and praying the establish-
MISCELLANEOUS. 1047
ment of a general code of regulations for their protection — together
with a copy of a case prepared by you in April, 1841, to be submitted
to Her Majesty's Law Officers, raising certain questions, as to the
rights of Fishery conferred by the Treaties on the subject, on British
and American Fishermen respectively. I enclose for your informa-
tion a copy of the Report, which on the 30th August was received
from the Queen's Advocate and Her Majesty's Attorney General, on
the case drawn up by Your Lordship ; since that date the subject has
frequently engaged the attention of myself and my colleagues, with
the view of adopting further measures if necessary, for the protection
of British interest m accordance with the law as laid down in the
enclosed Report. We have, however, on full consideration come to
the conclusion, as regards the Fisheries of Nova Scotia, that the pre-
cautions taken by the Provincial Legislature appear adequate to the
purpose, and that being now practically acquiesced in by the Ameri-
cans, no further measures are required.
I have, etc.
(Signed) STANLEY.
The Right Honorable VISCOUNT FALKLAND, etc., etc.
[Inclosure.]
Opinion of Law Officers of the Crown.
DOCTORS COMMONS, August 30th, ISJ^l.
MY LORD : We are honored with your Lordship's commands, signi-
fied in Mr. Backhouse's Letter of the 26th of May, stating that he
was directed to transmit to us the accompanying letter from the
Colonial Office, enclosing a copy of a despatch from the Lieutenant
Governor of Nova Scotia, together with an address to Her Majesty
from the House of Assembly of that Province, complaining of the
continued encroachments of American Fishermen on the Fishing
ground of Nova Scotia and the adjacent Colonies, and praying that
Her Majesty would establish by an order in Council, general regula-
tion? for the protection of the Fisheries, according to the code an-
nexed to the address.
We are also honored with Mr. Backhouse's letter of the 8th June,
stating that he was directed to transmit to us the copy of a Letter
frori the Colonial Office, together with a copy of a despatch from the
Lieutenant Governor of Nova Scotia, enclosing a case for opinion as
to vhat rights have been ceded to the citizens of the United States of
America, and as to what rights have been exclusively reserved to Her
Majesty's subjects, and to request that we would take the papers into
consideration, and report to your Lordship pur opinion upon the sev-
era questions stated in the case above mentioned.
Query 1st. — In obedience to your Lordship's commands, we have
talen these papers into consideration, and have the honor to report,
that we are of opinion, that the Treaty of 1783 was annulled by the
wir of 1812 ; and we are also of opinion, that the rights of Fishery
O- the citizens of the United States must now be considered as defined
and regulated by the Convention of 1818; and with respect to the
general question, " if so. what right ", we can only refer to the terms
of the convention, as explained and elucidated by the observations
which will occur in answering the other specific queries.
1048 MISCELLANEOUS.
2d. Except within certain defined limits to which the query put
to us does not apply, we are of opinion that by the terms of the
Treaty, American citizens are excluded from the right of fishing
within three miles of the Coast of British America, and that the
prescribed distance of three miles is to be measured from the head-
lands or extreme points of land next the sea of the coast, or of the
entrance of the Bays, and not from the interior of such Bays or In-
dents of the coast, and consequently that no right exists on the part
of American citizens to enter the Bays of Nova Scotia there to take
fish, although the fishing being within the Bay may be at a greater
distance than three miles from the shore of the Bay, as we are of
opinion the term headland is used in the Treaty to express the part
of land we have before mentioned, excluding the interior of the Bays
and the indents of the coast.
4th. By the treaty of 1818 it is agreed that American citizens
should have the liberty of fishing in the Gulf of St. Lawrence, within
certain defined limits, in common with British subjects; and such
treaty does not contain any words negativing the right to navigate
the passage or Gut of Canso, and therefore it may be conceded that
such right of navigation is not taken away by that Convention ; but
we have now attentively considered the course of navigation to the
Gulf, by Cape Breton, and likewise the capacity and situation of the
passage of Canso, and of the British Dominions on either side, and
we are of opinion that, independently of Treaty, no Foreign country
has the right to use or navigate the passage of Canso ; and attending
to the terms of the convention relating to the liberty of Fishery
to be enjoyed by the Americans, we are also of opinion that that
convention did not either expressly or by implication, concede any
such right of using or navigating the passage in question. We are
also of opinion that casting bait to lure Fish in the track of my
American vessels navigating the passage, would constitute a fishing
within the negative terms of the convention.
5th. With reference to the claim of a right to land on the Magdilen
Islands, and to fish from the shores thereof, it must be observed, that
by the Treaty, the liberty of drying and curing Fish (purposes wlich
could only be accomplished by landing) in any of the unsettled Biys,
etc. of southern part of Newfoundland, and of the coast of Labrador
is specifically provided for; but such liberty is distinctly negati/ed
in any settled Bay, etc., and it must therefore be inferred, that if the
liberty of landing on the shores of the Magdalen Islands had been
intended to be conceded, such an important concession would have
been the subject of express stipulation, and would necessarily have
been accompanied with a description of the inland extent of the shore
over which such liberty was to be exercised, and whether in settjed
or unsettled parts, but neither of these important particulars are
provided for, even by implication, and that, among other considera-
tions leads us to the conclusion that American citizens have no rigfrt
to land or conduct the Fishery from the shores of the Magdalen
Islands. The word " shore " does not appear to be used in the Con-
vention in any other than the general or ordinary sense of the word,
and must be construed with reference to the liberty to be exercised
upon it, and would therefore comprise the land covered with water,
as far as could be available for the due enjoyment of the liberty
granted.
MISCELLANEOUS. 1049
6th. By the Convention, the liberty of entering the Bays and
Harbors of Nova Scotia for the purpose of purchasing wood and
obtaining water, is conceded in general terms, unrestricted by any
condition expressed or implied, limiting it to vessels duly provided at
the commencement of the voyage ; and we are of opinion that no such
condition can be attached to the enjoyment of the liberty.
7th. The rights of Fishery ceded to the citizens of the United
States and those reserved for the exclusive enjoyment of British
subjects, depend altogether upon the Convention of 1818, the only
existing Treaty on this subject between the two countries, and the
material points arising thereon have been specifically answered in
our replies to the preceding Queries.
We have, etc.,
(Signed) J. DODSON,
THOS. WILDE.
VISCOUNT PALMERSTON, K. B., etc., etc.
Mr. Grampian to Mr. Clayton.
WASHINGTON, March 88, 1849.
SIR: On the 12th of May, 1846, an address was voted by the
Canadian Parliament to her Majesty the Queen, praying that, in the
event of a change being made in the law regulating the admission of
foreign grain into the British markets, due regard should be had to
the interests of Canada; and, as a measure which would be greatly
conducive to this object, her Majesty was respectfully requested to
cause the necessary steps to be taken for opening a negotiation with
the government of the United States for the admission of the products
of Canada into their ports on the same terms that theirs are admitted
into the ports of Great Britain and that colony.
To this request her Majesty was pleased to accede, and the governor
general of Canada was accordingly instructed by her Majesty's
principal secretary of state for the colonies, in a despatch dated June
3, 1846, to assure the legislative assembly that her Majesty would
readily cause directions to be given to her Majesty's minister at
Washington to avail himself of the earliest suitable opportunity to
press the important subject of the establishment of an equality of
trade between the dominions of the republic and British North
America on the notice of the United States government ; and that " it
would afford her Majesty the most sincere satisfaction if any com-
munication which might hereafter be held for this purpose should
have the effect which is desired by her faithful commons of Canada."
An instruction to this effect was, in consequence, immediately ad-
dressed by her Majesty's government to Mr. Pakenham, her Majesty's
minister at Washington, directing him to bring this subject under the
serious consideration of the government of the United States, when-
ever he might consider the time to be favorable for pressing on their
attention a subject believed by her Majesty's government to be of
deep interest and importance both to Canada and the United States.
As an important measure of a general nature in relation to the
tariff was pending in the Congress of the United States at the time
1050 MISCELLANEOUS.
Mr. Pakenham received the above instruction, he availed himself
of the discretion which it allowed to him as to the time of acting
upon it to defer bringing forward the proposition of her Majesty's
government until the result of the deliberations of the United States
legislature on the question of the tariff should be known.
In the month of December, 1846, accordingly, he made a commu-
nication on the subject to the United States Secretary of the Treasury,
who immediately submitted the matter to the consideration of the
government. In the early part of 1848, I had myself the honor of
communicating with Mr. Walker upon the subject, and I learned
with satisfaction that the views of the United States government
were highly favorable to the principle of a reciprocal relaxation of
commercial restrictions between Canada and the United States. As
the speediest way of bringing about so desirable an object, it was,
upon consultation, judged most expedient to introduce into Congress
a bill by which the duties on certain agricultural and natural prod-
ucts imported into the United States from Canada should be abol-
ished, conditionally? under the understanding that a bill exactly
similar in its provisions should be introduced into the Canadian
Parliament respecting the like agricultural and natural productions
imported into that province from the United States.
This bill was accordingly drawn up by a distinguished member
of the Committee on Commerce of the House of Representatives —
Mr. Grinnell — and its adoption very strongly recommended by the
Secretary of the Treasury, in a letter to that committee, dated 1st of
May, 1848. The bill was passed without opposition by the House
of Representatives, during the first session of the last Congress; but
was, from the great pressure of other business, not voted upon during
that session by the Senate ; and, during the session of the same Con-
gress lately brought to a close, has, from the same cause, I regret to
observe, been lost in that body.
I have thus at some length recounted the steps which have been
hitherto taken in this matter by her Majesty's legation, in order to
place in a clearer light my motives for taking this early opportunity
of again submitting this important question to the serious considera-
tion of the United States government.
The proceedings of Congress in this matter have been watched with
anxiety by the provincial government and the people of Canada, and
a great deal of disappointment has, I am assured, been felt in that
province on their being apprized that the act for a reciprocity of
trade has, from whatever cause, failed to become law. I cannot,
therefore, but feel anxious to assure her Majesty's government that
the disposition of the government of the United States to meet the
proposed measure of commercial relaxation in a spirit of liberal rec-
iprocity remains unchanged.
The Canadian legislature are not, indeed, without reasonable
grounds for expecting to be met in such a spirit by the United States;
for confidently relying upon the proofs so frequently given by the
United States government that a just reciprocity is the guiding
principle of their policy in commercial arrangements with other
nations, the Canadian Parliament have already, on their side, and
without stipulating for any equivalent, made very important advances
towards a more Hberal system of commercial intercourse. I allude
to the act of theT*rovincial Parliament of 1847, by which, immedi-
MISCELLANEOUS. 1051
ately availing themselves of the power conferred upon them by the
imperial government (by the act of the British Parliament called the
" British possessions act ") to regulate duties on the products both of
foreign nations and of the mother country, the duties on American
manufactures were lowered from 12^ to 7^ per cent., while those on
British manufactures were raised from 5 to 7£ per cent., thus placing
the United States entirely upon a par with the mother country in this
important particular.
That the feeling of disappointment to which I have alluded, and
the impression that there is now no hope of placing their commercial
relations with the United States on a more satisfactory and mutually
advantageous footing, should have the effect of causing the Canadian
legislature to retrace their steps in the liberal course which they
evidently wish to pursue with regard to the commercial relations of
the province with the United States, would assuredly be a subject of
great regret to her Majesty's government. It could not, therefore,
but be satisfactory for them to learn that the favorable consideration
of the government of the United States will now be given to this
subject, with a view to the negotiation of such a treaty as would
secure the proposed objects, should that appear to be a course likely
to insure their speedy attainment.
I am the more desirous at the present moment of ascertaining the
disposition of the United States government with regard to this
matter, from having lately received an instruction from her Majesty's
Government directing me, with the concurrence of the lieutenant gov-
ernor of New Brunswick, to negotiate with the government of the
United States a convention, upon the principle of reciprocity, extend-
ing to that province also advantages similar to those proposed by the
contemplated measure as regards Canada; and I am, consequently,
already in communication with his Excellency Sir Edmund Head
upon this subject.
It is, of course, on grounds of the interest of Canada and New
Brunswick that her Majesty's government urge this measure. It is
both the duty of her Majesty's government to look to those interests
in the first place, and it would also be absurd to pretend that that
consideration is not their governing motive. But there can be little
doubt that the measure of relaxation desired by the British North
American colonies on their own account would be almost, if not quite,
equally advantageous to the United States, as establishing a free and
unrestricted intercourse between them and the countries in question,
and thereby affording a much more extended demand for United
States produce than the Canadas or New Brunswick, in their present
restricted power of mutual exchange, are enabled to sustain.
I am unwilling, on the present occasion, to enter into unnecessary
detail ; but I think that I can confidently appeal to the custom-house
reports, both of the United States and Canada, to show that the ex-
ports from the United States to Canada already much exceed the
imports from that province, leaving a heavy balance of trade against
the latter — a state of things which, if not remedied, must clearly tend
to diminish, and not to increase, the profitable commercial transactions
between the two countries. That a more extended use of the canals
of the United States by the Canadian dealer in grain would take place
on the removal of the present inconvenient custom-house formalities,
cannot, I believe, be doubted. That the present state of the respective
1052 MISCELLANEOUS.
tariffs is one which raises very vexatious and harassing impediments
to the local trade in agricultural produce along a very extended fron-
tier, and encourages the demoralizing practice of smuggling, is not
to be denied ; and that the removal of such restrictions would tend to
promote a friendly feeling between the inhabitants of the respective
frontiers — and this is an object, it is not doubted, very desirable to
both governments — cannot reasonably be questioned.
Without, therefore, adverting to other measures of great impor-
tance to the trade and navigation of both countries, which, should the
present proposition meet with the concurrence of the United States
government, it is confidently expected may be brought to bear, I ven-
ture to submit the above statement to the just and favorable consid-
eration of the government of the United States.
I avail myself of this opportunity to renew to you, sir, the assur-
ance of my highest consideration.
JOHN F. CRAMPTON.
Sir H. L. Bidwer to Mr. Webster.
BRITISH LEGATION,
June 34, 185T.
SIR: I have already expressed to you at different periods, and
especially in my note of 22d March last, the disappointment which
was experienced in Canada, when at the close of last session of Con-
gress it was known that no progress whatever had been made in the
bill which had been brought forward for three years successively for
reciprocating to the measure which passed the Canadian legislature
in 1847, and which granted to the natural produce of this country
an entry free of duty into Canada whensoever the Federal Legisla-
ture of the United States should pass a measure similarly admitting
into the United States the natural produce of the Canadas. This
disappointment was the greater, inasmuch as the Canadian govern-
ment has always adopted the most liberal commercial policy with
respect to the United States, as well in regard to the transit through
its canals, as in regard to the admission of manufactured goods com-
ing from this country.
I have now the honor to enclose to you the copy of an official com-
munication which I have received from the governor-general, Lord
Elgin, by which you will perceive that unless I can hold out some
hopes that a policy will be adopted in the United States similar to
that which has been adopted in Canada, and which the Canadian
authorities would be willing, if met in a corresponding spirit, to
carry out still farther, the Canadian government and legislature are
likely forthwith to take certain measures, which, both in themselves
and their consequences, will effect a considerable change in the com-
mercial intercourse between the Canadas and the United States.
I should see with great regret the adoption of such measures, and
I am induced to hope, from the conversations I have recently had
with you, that they will be unnecessary.
The wish of her Majesty's government indeed would be rather to
improve than impair all relations of friendship and good neighbor-
hood between her Majesty's American possessions and the United
States; and I feel myself authorized to repeat to you now, what I
MISCELLANEOUS. 1053
have at different times already stated to Mr. Clayton and yourself,
viz.: that her Majesty's government would see with pleasure any ar-
rangement, either by treaty or by legislation, establishing a free in-
terchange of all natural productions not only between Canada and the
United States, but between the United States and all her Majesty's
North American provinces; and furthermore, I am willing to say
that in the event of such an arrangement, her Majesty's government
would be ready to open to American shipping the waters of the river
St. Lawrence with the canals adjoining, according to the terms of a
letter which I addressed to Mr. Clayton on 27th March, 1850, for the
information of the Committee on Commerce in the House of Repre-
sentatives, and to which I take the liberty of referring you, whilst I
may add that her Majesty's government would in this case be like-
wise willing to open to American fishermen the fisheries along the
coast of Nova Scotia and New Brunswick, according to the conditions
specified in the enclosed extract from instructions with which I am
furnished.
The willingness to grant to American citizens on such reasonable
conditions two important privileges so long enjoyed exclusively by
the subjects of Great Britain, will testify clearly to the spirit by
which the British government is on this occasion animated; and as
affairs have now arrived at that crisis in which a frank explanation
of the views of either party is necessary for the interests and right
understanding of both, I take the liberty of begging you to inform me
whether you are disposed, on the part of the United States, to enter
into such a convention as will place the commercial relations between
the United States and her Majesty's North American colonies on the
footing which I have here proposed ; or whether, in the event of there
appearing to you any objection to proceed by convention in this
matter, you can assure me that the United States government will
take the earliest opportunity of urgently recommending Congress to
carry out the object aforesaid by the means of legislation.
I avail myself of this opportunity to renew to you the assurance of
my highest consideration.
H. L. BULWER.
Hon. DANIEL WEBSTER, &c., &c., &c.
[Inclosure.]
Lord Elgin and Kincardine to Sir H. L. Bulwer.
GOVERNMENT HOUSE,
Toronto, June 7, 1851.
SIR: I have the honor to transmit for your excellency's information
the copy of a memorandum and accompanying documents, which has
been submitted to me by the Honorable Mr. Hincks, inspector-general
of public accounts in this province, on the subject of the closing of
the Canadian canals to foreign vessels. You are, I believe, aware .that
a measure, such as that recommended by Mr. Hincks, has been for
some time contemplated by the Canadian Government.
I have been most unwilling to have recourse to it, more particularly
after the representations made by the gentlemen from Oswego, who
visited this city some time ago.
The discussion which took place in the legislative assembly last
evening, to which Mr. Hincks refers in his memorandum, indicates,
1054 MISCELLANEOUS.
however, very clearly, the direction which public opinion is taking on
these questions, and I cannot conceal from your excellency my belief
that, unless you are enabled to give me some assurance that negotia-
tions with the government of the United States are in progress, which
are likely to result in placing the commercial relations between the
provinces and the United States on a more satisfactory footing, it
wrill not be in my power any longer to refrain from adopting the
steps which the inspector-general suggests, and which may, I think,
very probably be followed up by others calculated to check the trade
between British North America and the United States.
Under these circumstances, I deem it my duty to invite your ex-
cellency's attention to the documents which I herewith enclose, and to
request you will, at your earliest convenience, furnish me, for my
guidance, with such information respecting the views of the govern-
ment of the United States as it may be in your power to give.
I have, &c.,
ELGIN AND KINCARDINE.
The Kt. Hon. Sir HENRY L. BULWER, G. C. B., &c.} &c., &c.
[Annex 1 to foregoing.]
The papers alluded to in this despatch, are :
1st. Memorandum from Mr. Hincks to the Governor-General of
Canada, recommending that the canals should be closed to foreign
shipping, in regard to which no immediate steps were taken in conse-
quence of the expected arrival of a deputation from Oswego, to confer
with the Governor-General on this subject.
2dty. Memorandum subsequent to the arrival of said deputation,
recommending that the canals should be closed, unless the British
minister at Washington could give some assurance that the trade
between Canada and the United States is likely to be placed on a
more satisfactory footing.
3dly. Resolutions about to be proposed by the Hon. Mr. Robinson,
to the effect that a duty of twenty per cent, should be levied on
American goods, and that a system of differential duties should be
returned to, encouraging importers to bring their goods into Canada,
via St. Lawrence, instead of through the United States.
4thly. Resolutions about to be proposed by the Hon. Mr. Merritt,
that her Majesty be prayed to recommend to her Imperial Parliament
to enact that similar duties should be imposed on foreign produce
(as enumerated in schedule A herewith appended) imported into
Great Britain and her dependencies, as are levied on British produce
in those foreign countries.
SCHEDULE A.
Grain, and breadstuffs of all kinds, vegetables, fruits, seeds, ani-
mals, hides, wool, cheese, tallow, horns, salted and fresh meats, ores
of all kinds of metals, plaster of paris in stone or ground, ashes,
timber, staves, wood, and lumber of all kinds.
MISCELLANEOUS. 1055
[Annex 2 to foregoing.]
[Extract.]
" Her Majesty's government are prepared, on certain conditions
and with certain reservations, to make the concession to which so
much importance seems to have been attached by Mr. Clayton,
namely: to throw open to the fishermen of the United States, the
fisheries in the waters of the British North American colonies, with
permission to those fishermen to land on the coast of those colonies
for the purpose of drying their nets and curing their fish ; provided,
that in so doing, they do not interfere with the owners of private
property, or with the operations of British fishermen. Her Majesty's
government, however, would require as an indispensable condition, in
return for this concession, that all fish, either cured or fresh, imported
into the United States from the British North American possessions
in vessels of any nation or description, should be admitted into the
United States duty free, and upon terms, in all respects, of equality
with fish imported by citizens of the United States."
N. B. As the concession above stated applies solely to the sea
fishery, the fisheries in estuaries and in the mouths of rivers are not,
of course, included.
Her Majesty's government do not propose that any part of this
arrangement should apply to Newfoundland.
Extracts from the journal of the legislative assembly of Newfound-
land, 1844.
Address to the Queen.
WEDNESDAY, APRIL 24, 1844.
To the QUEEN'S MOST EXCELLENT MAJESTY.
MAY IT PLEASE YOUR MAJESTY,
We, Your Majesty's most dutiful and loyal subjects, the General
Assembly of Newfoundland, in Legislative Session convened, ap-
proach Your Majesty with sentiments of sincere and affectionate
attachment to Your Majesty's person and Government, and humbly
crave Your Most Gracious Majesty's attention to the condition of
this ancient appendage to Your Majesty's crown.
The value of the Trade and Fisheries of Newfoundland has for
centuries been acknowledged by the Government of England, as a
nursery for seamen wherewith to man Your Majesty's navy; its
extreme importance has ever been recognized in time of peace, and
realized in time of war.
Its insular situation — the multitude of its safe and commodious
harbours — the healthfulness of its climate — and its proximity to
Great Britain, whilst it is the key to the western world must ever
make the maintenance and prosperity of this Colony a matter of
national importance.
The inexhaustable mine of wealth in her seal and cod fisheries
which a bountiful providence has opened to the enterprise and in-
dustry of her people, would enable Newfoundland to assume and
preserve that rank in Your Majesty's Colonial possessions to which
she is entitled had she been permitted to enjoy the full use and benefit
1056 MISCELLANEOUS.
of all her fisheries, and had she been spared the injurious conse-
quences which flow from the competition, within her own bosom, of
a foreign nation.
The population of Newfoundland at present amounts to nearly
100,000 souls, altogether of British birth or extraction. They con-
sume annually the produce of other countries to an amount exceeding
£300,000 sterling. They annually export produce equal in value to
one million sterling, and there are employed in its fisheries alone not
less than 20,000 active, enterprising and able bodied seamen.
The most valuable description of our fish, and such alone as is
suitable for the Spanish and Portuguese markets, is taken on the
Western Coast and on the Banks of Newfoundland.
The bait essential to these Fisheries is caplin and herring. These
fish periodically visit certain parts of the bays and shores of this
Island, attracting after them shoals of codfish ; they annually return
in increased quantities to these localities, where they are not molested,
and there occasion a corresponding increase of the fish which make
them their prey.
An illicit traffic has of late years been opened between some of your
Majesty's subjects in this Island and the French settlers at St. Pierre
and Miquelon, which we have no power to check, and by means of
which the vessels of the latter are abundantly supplied with bait to
the prejudice of the fishermen on our shores, who for want of it are
often times unable to prosecute their fisheries, or even to procure a
sufficiency of food for their daily consumption. Payment for this
bait is made partly in cash, but chiefly in spirits and other articles
of French manufacture, which the large bounties given by the French
Government to encourage their fisheries enabled the settlers to give
liberally in return for so essential an accommodation. These articles
are smuggled into our ports to the serious damage of our revenues,
and to the demoralization of your Majesty's subjects. A few years
ago the French fisheries at St. Pierre was seriously diminished by the
exhaustion of the bait within their boundaries, and the French au-
thorities were constrained to forbid the taking of any caplin or
herrings around their islands, except for the use of their small open
boats. Their necessity stimulated the illicit traffic with the British,
whereby their wants have become supplied at our expense, and in
consequence of the preservation of their bait, -codfish now swarm in
their waters, whilst they desert the opposite shores of Newfoundland.
We beg to remark that the French fishery is limited only by the
supply of bait, and since the supply from our shores has been obtained
it has greatly increased: already nearly 300 square rigged vessels,
varying from a 100 to 400 tons burthen, besides a multitude of open
boats, carrying on the cod fishery from St. Pierre and Miquelon.
These obtained last year from the shores of Newfoundland upwards
of 70,000 barrels of fresh caplin and about 28.000 barrels of fresh
herring; and so intent are the French upon this fishery, and so anxious
are they to extend it, that owing to the facilities above referred to,
fifty additional square rigged vessels were last summer sent to St.
Pierre from France. The consequence is that whilst the British fish-
eries in the Bays of Placontia and Fortune, and on the Banks, are
annually diminishing, those of the French are progressively increas-
ing ; in proof whereof we humbly crave permission to state, that last
year the French caught nearly one million four hundred thousand
MISCELLANEOUS. 1057
quintals codfish, whilst Your Majesty's subjects all over this Island,
have not taken more than one million quintals. The number of French
fishermen annually employed in these fisheries already amounts to
nearly 20,000 ; and we feel assured that unless Your Majesty's Gov-
ernment will interpose for our protection the most valuable of the
British Fisheries of Newfoundland, — those on the Western shores, —
will speedily become lost to your Majesty's subjects, and pass into the
hands of the people of France.
An apparatus for screwing fish preparatory to its shipment for the
South American and West Indian markets has been recently estab-
lished at St. Pierre, and during the last year your Majesty's subjects
have had to compete in Brazil, in the West Indies, and in Portugal
with French made fish, caught by British bait.
The Legislature of this Colony, in the year 1836, attempted to
arrest, by local enactment, the destructive progress of this illicit
trade, but without success. The commanders of your Majesty's ships
of war, who from time to time have cruised along our coasts, have
successively represented the urgent necessity that exists for the estab-
lishment of sufficient protection to our fisheries on the Western shore.
The Revenues of the Colony are wholly insufficient for such a pur-
pose, but even were that not so, the service appears to participate
more of an Imperial than of a local character.
The presence, during the summer months, of two small armed
sailing vessels, or of a steam vessel, would alone suffice for so impor*
tant a service ; and we earnestly hope that when your Majesty recol-
lects that the evils which oppress us arise from causes over which we
have no control, it will not be deemed unreasonable in us to crave
from the Parent state assistance in those difficulties which the policy
of the parent state occasioned.
We know that your Majesty cannot directly prevent the French
Government increasing their fisheries in Newfoundland, neither do
we ask or expect that your Majesty will grant to your Majesty's sub-
jects a bounty similar to that which so effectually stimulates and
invigorates the subjects of France and the citizens of the United
States to prosecute the cod fisheries of Newfoundland; but we look
with confidence to the maternal solicitude of your most gracious
Majesty for that protection in our rights which can only come from
the Imperial Government.
We beg to remark that in the year after the treaty and declara-
tion of Versailles in 1783, an Act was passed by the Parliament of
England, in the 26th year of the reign of your Majesty's august
predecessor of blessed memory, King George the Third, absolutely
prohibiting any of your Majesty's subjects in Newfoundland from
selling to foreigners any bait whatsoever. All we now most duti-
fully ask of your Majesty is such assistance as may be necessary to
carry the said enactment into practical operation. The mode in
which that assistance may be accorded we submit to the wisdom of
your Majesty, confident that the prosperity of this colony will
engage your most gracious Majesty's solicitude, and that such meas-
ures will be adopted by your Majesty's Government as will secure
to your Majesty's loyal subjects in Newfoundland that protection
which none living under the benign though vigorous sway of the
British sceptre, ask in vain.
92909°— S. Doc. 870, 61-3, vol 3 28
1058 MISCELLANEOUS.
Extracts from the journals of the legislative assembly of Newfound-
land, 184o.
Report of the Committee of the Newfoundland Assembly appointed in 1845 to
enquire into the state of the Fisheries on the Banks and Shores of Ncic-
foundland.
The Bank and Shore Fisheries have engaged the deep attention
of your Committee. These important subjects have not hitherto
been investigated by the Legislature ; they have therefore considered
it their duty to take a general review of them from the earliest
period.
These Fisheries were coeval with the Colonial dominion and mari-
time superiority of England. Newfoundland was her earliest Colo-
nial possession: the fisheries, the first nursery of those seamen that
gained her the dominion of the ocean, and with it her vast unbounded
Colonial Empire, and trade of the world.
Soon after the discovery of the Island by Cabot, in the Reign of
Henry VII., the fisheries gave employment to a considerable number
of ships and seamen. As far back as the year 1549, an Act of the
British Parliament (Edward VII.) was passed for the better en-
couragement of the fisheries of Newfoundland. During the Reigns
of Elizabeth, James I, Charles I & II., the trade and fisheries en-
.gaged much of the attention of the Crown and Parliament. There
were two hundred and sixty ships employed in the Newfoundland
fisheries in the Reign of Elizabeth. The seamen nursed in these
Fisheries mainly assisted in manning her fleets, which defeated the
powerful Armada of Spain.
Charles I. in a commission for well-governing his subjects of New-
foundland, observes, that " the navigation and mariners of the Realm
have been much increased by the Newfoundland fisheries." Various
Acts were passed in the Reign of Charles II., and measures were
adopted to revive the fisheries of Newfoundland, which had greatly
declined. The preamble of the Act 10th & llth William and Mary
declared that " the trade and fisheries of Newfoundland is a bene-
ficial trade to the kingdom, in the employment of a great number of
seamen and ships, to the increase of Her Majesty's Revenue and the
encouragement of trade and navigation."
The Act 15th George III. declares the Fisheries " the best nurseries
for able and experienced seamen, always ready to man the Royal
Navy when occasion may require ; and it is the greatest national im-
portance to give all due encouragement to the said fisheries."
In 1763, Lord Chatham, then Mr. Pitt, negociated in the first
instance the Treaty of Paris, which upon his resignation of office
was concluded by Lord Bute. Lord Chatham, who had contended,
on the part of England, for the whole exclusive fishery of Newfound-
land, and affirmed it to be of itself an object worthy to be contested
by the extremity of war, censured severely his successor in office for
having returned to France some of the privileges which she had
before enjoyed upon the coast, and for having ceded, in addition,
St. Pierre and Miquelon.
By the Treaty of 1783, additional concessions were made to France
in the fisheries of Newfoundland. No part of the Treaty was more
uniformly censured than that which related to Newfoundland. The
preliminary articles were censured by a vote of the House of Com-
MISCELLANEOUS. 1059
mons, and the Minister of the day had to retire; however, the advan-
tages ceded to the French were confirmed. Lord Viscount Townshend
said — " The admission of that Nation (the French) to a participa-
tion of the Newfoundland fisheries was a piece of the most dreadful
policy and concession that ever disgraced a nation."
Mr. Fox said, " It was evident that our fisheries in Newfoundland,
so much boasted of, were in a manner annihilated, not to mention
the impolicy of ceding St. Pierre and Miquelon."
Sir Peter Burrell said — " Will any gentleman say that leaving
the Americans liberty to dry their fish on the unsettled coast of
Newfoundland was the way to prevent disputes: for his part he saw,
in the wording of the treaty, an eternal source of quarrels and dis-
putes; and when he considered the footing on which the Americans
are with the French, he was not without his apprehensions that the
right which the treaty granted to the latter to dry their fish on a
coast near 190 miles in length, would occasion various attempts to
bring in the Americans to this privilege."
Lord Mulgrave, on the same occasion said — " He considered the
Greenland fisheries much inferior to the Newfoundland fisheries."
Mr. Pitt expressed similar opinions.
The great advantages, in a national point of view, of the New-
foundland fisheries, have been fully admitted by the most eminent
statesmen of a later period. On a motion proposed by Sir John
Newport in 1815, in which he expressed his views of the vast im-
portance of the fisheries of Newfoundland, Lord Castlereagh said
" He concurred with much of what had been said by the Right Hon.
Baronet as to the value of these Fisheries; he most completely co-
incided with him that they were not only valuable as a great source
of wealth to the country but they were still more so as a source of
maritime strength."
The greatest of trade Ministers, the late lamented Mr. Huskisson,
in his celebrated speeches upon the Shipping Interests, Colonial
Trade and Navigation, never loses sight of the great importance of
the Fisheries. To the support of them, as a great source of the
maritime power of England, he assented to a deviation from the
great leading principles of his own commercial system. In that
eminent Statesman's speech on the Navigation Laws of the United
Kingdom, he says —
First of the Fisheries —
" The ocean is a common field alike open to all the people of the
earth ; its productions belong to no particular Nation. It was there-
fore our interest to take care that so much of those productions as
might be wanted for the consumption of Great Britain should be
exclusively procured by British industry and imported in British
ships. This is so simple and so reasonable a rule, that in this part
of our navigation system, no alteration whatever has been made, nor
do I believe that any ever will be contemplated."
Sir Howard Douglas said that, " the Fisheries in the British
Quarters of America were the most productive in the world : if they
were not ours whose would they be? what would be the effect of the
total abandonment and transfer to another Power of this Branch of
Industry upon our Commercial marine and consequently upon our
naval ascendancy ? "
Your Committee could without end produce authorities, both
British and Foreign, to prove the inestimable value of the fisheries
1060 MISCELLANEOUS.
on the Great Bank and Shores of Newfoundland. The French Gov-
ernment have at all periods duly estimated its importance. The
Americans, even before they were separated from the Government of
the Parent Country, but more particularly since, have lost no op-
portunity to extend the Fisheries in the Gulf of St. Lawrence and
on the Banks and Shores of Newfoundland. Your Committee
would conclude upon this head by referring to the opinion of cele-
brated French authority, (L'Abbe RaynalJ on the great value, in
a commercial and national point of view, of the Newfoundland
Fisheries.
" The other Colonies, he says, have exhibited a series of injustice,
oppression and carnage, which will for ever be holden in detestation.
Newfoundland alone hath not offended against humanity nor injured
the rights of any other people. The other settlements have yielded
productions, only by receiving an equal value in exchange. New-
foundland alone hath drawn from the depths of the waters riches
formed by nature alone, and which furnishes subsistence to several
countries of both hemispheres.
" How much time hath elapsed before this parallel hath been
made, — of what importance did fish appear when compared to the
money which men went in search of in the new world. It was long
before it was understood, if even it be yet understood, that the rep-
resentation of the thing is not of greater value than the thing itself,
and that a ship filled with Cod and a Galleon are vessels equally
laden with Gold: — there is even this remarkable difference, that
mines can be exhausted and the fisheries never are. Gold is not re-
productive, but the fish are so incessantly."
Your Committee consider it necessary to explain the grounds on
which they refer to so many authorities to prove the value of the
Newfoundland fisheries. The proposition, as far as they could learn,
has never yet been questioned. They were induced to make these
references in consequence of the utter neglect with which these fish-
eries have been regarded by the British Government, since the peace
of 1814, on the one hand, and the avidity with which they were prose-
cuted by the French and American Governments since that period on
the other. " Great Britain, who owns, supports, and defends these
Colonies and Fisheries, and has derived from them the principal
means of defending herself, gave up, at the conclusion of the war, to
her vanquished opponents the most valuable portion of her Colonial
coasts and waters. To the French in 1814 she conceded the North
coast and Western coast of Newfoundland, from Cape St. John to
Cape Ray: to the Americans in 1818 she gave up the right of taking
fish on the Southern and Western coasts of the same Island, from the
Rameau Islands to Cape Ray and from Cape Ray to the Quirpon
Islands, to the Magdalen Islands, and on the whole coast of Labrador,
from Mount Jolly Northwards to the limits of Hudson's Bay, to-
gether with the liberty of using the unsettled parts of Labrador and
the Southern parts of Newfoundland, for drying and curing fish."
It cannot be questioned that Great Britain, by these concessions, ceded
to the French and the Americans the best fishing grounds ; and these
Governments, to make the most of these advantages, grant large
bounties for the encouragement of these fisheries, with the avowed
purpose of increasing their maritime strength. Your Committee
may therefore state that the Newfoundland fisheries, instead of being,
MISCELLANEOUS. 1061
in the words of the British Act of Parliament, a nursery for seamen
to man the British Navy when an occasion should require, have be-
come converted into the best nurseries both for the French and
American Navies.
The deep sea fishery on the Grand Bank and other Banks can only
be prosecuted in Crafts and Vessels of a large size, and with an expen-
sive outfit. The French and Americans, by their bounties, are en-
abled to prosecute them to advantage, while every attempt of the
British has proved a failure, arising not from want of skill or enter-
prise on their parts, but altogether from the superior advantage en-
joyed in the form of bounties by their Foreign rivals.
The unequal competition has swept the British ships from that
fishery; it is now monopolized by the French and Americans, and
without a rival.
As the Newfoundland fisheries are now composed of that portion
carried on by the British, that by the French, and that by the Ameri-
cans, your Committee will give an abstract of each fishery, founded
on such official information and otherwise as they could obtain.
1ST, THE FISHERIES.
In 1615, Captain R. Whitbourne represents the British fisheries as
employing 250 Ships, averaging about 60 tons, and Twenty Mariners
to each ship — in all fifteen thousand tons of shipping, 5,000 seamen
and 1,250 fishing boats.
In 1644, in a representation made, the fishery was represented to
consist of 270 sail of Ships, computed at 80 tons each, and for every
80 tons 50 men — in all 2,160 tons and 10,800 seamen.
In the Reign of Charles II, the British fishery greatly declined
and the French fishery advanced in proportion.
In 1677 the British fishery is represented to consist of 109 ships,
4,475 seamen, and 892 boats, with 337 belonging to bye boat keepers.
In 1684, owing to the same cause, the French competition, the
British Fishery was reduced to 43 fishing ships, 1,409 seamen, and
294 boats, with 304 boats belonging to resident boat keepers. The
extraordinary falling off of the fishery at this period is thus ex-
plained by the Lords of the Privy Council of Trade, in 1718.
" But this decay of the fishery trade was not the only loss this
Kingdom sustained on this occasion; for as Captain Jones, one of
the Commodores of the Convoy in 1682, hath affirmed of his own
knowledge, the traders from New England to Newfoundland yearly
made voyages for the sake of spiriting away the fishermen, so that the
Newfoundland fishery, which was formerly the great nursery, for
breeding up stout and able mariners, was now become a mere drain
that carried off very many of the best and most useful of all the
British Sailors, and it is too notorious that this practice has prevailed
ever since."
1062
MISCELLANEOUS.
The state of the British Fishery, from 1699 to 1729, exhibits the
same rise and fall, as will appear by the following
OFFICE OF THE COMMITTEE OF THE PRIVY COUNCIL FOB TRADE, I
Whitehall, 19th March, 1792. )
S
3
3
to
3
1
•o
.2
11
M
3
I
s>
Q
CO
o
^
o
"r^ 3
_§ CO
T3
i'"1
Average of years.
8.
8,
t-5
1
fj
0
1
1C
11
1
^: 3
2
3
,a
p.
o
f
6
o
W S
3
£8
»_
"3
c
"3
u
"3
h
"3
b
^
1
"3
1
i-S
1
§
rl
o
0
.a
1
"3
o
S
"o
e
S
rt
6
CO
_co
o
s
6 M
3
3
p
3
3
^3
_s>
§
3 ^
fc
P3
*
«
cy
&
s
p
^-
1699, 1700, 1701 ..
192
7,991
4,026
1,314
21S, 320
154, 370
1,049
3,506
1714, 1715, 1716
!•' 1
9,148
2,119
9S2
97,730
102, 3' 3
891
3,501
1749, 1750, 1751
33,512
4,108
3,149
1,370
432.318
422.116
1,308
2,532
5, 855
1764-5-6-7-8-9, 1770-1-2-3-4.
516
40,(i91
5,435
6,441
2,1(3
62; i, 276
524,293
5,146
2.882
12,340
1784-5-6-7-8-9, 1790-1-2
480
48,950
4,422
4,617
2,258
637, 955
622, 108
2,974
2, 304
15,253
The occasional decline of the British fisheries appears to be ac-
counted for by a variety of causes. The true causes — French and
American competition and large bounties — are scarcely noticed. It
was confidently stated that it was owing to the resident population
not exceeding in those days from five to ten thousand. A report of
the Lords of the Privy "Council of trade states, in 1718, that the
indulgence shewn to the planters in 1677, by permitting them to
remain in the country, rendered the Charter ineffectual, reduced the
fishery to the lowest ebb, and favoured both the French and the New
Englanders in carrying on the fishing trade. The same Report in
further accounting for the decline of the British Fisheries, attributed
it mainly to the neglect in not enforcing the 10th article of the Char-
ter of Charles I., which ordains —
" That no person shall set up any Tavern, for selling Wines, Beer,
&c. to entertain the Fishermen, &c. ; and it is as certain that the
flourishing state of the fishery trade during the aforesaid period, was
in a great measure, owing to this wholesome prohibition ; for, as long
as it was maintained, so long the trade prospered; and it was no
sooner dispensed with, than the trade sensibly declined ; and although
the planters were afterwards kept in awe for some time by the Char-
ters that were granted by King Charles IT. which confirmed the said
prohibition, nevertheless, when that difficulty was surmounted, and
they were at liberty to pursue their own measures, the fishery imme-
diately languished."
The true cause of the falling off of the British fishery may be at-
tributed to the unequal competition with which it had to contend
from foreigners, their fisheries on the Newfoundland coast have been
invariably supported by large bounties and other encouragements.
It can be much more satisfactorily accounted for in that way, than
to attribute it to the settlement of the Island, a resident population,
MISCELLANEOUS. 1063
or even the establishment of taverns and public houses. A subsequent
report of the Lords of the Committee of the Privy Council of Trade,
on the subject of the Newfoundland fishery dated 17th March, 1786,
accounts for it in a much more satisfactory manner when they state —
The French give a bounty upon fish, the produce of their fishery,
imported into their West India Islands, of ten livres per quintal, and
at the same time lay a duty of five livres per quintal upon all fish
imported into those islands by foreign nations. This bounty and
duty taken together is equal to a prohibition of foreign fish; and it
is a clear proof that even in the opinion of their own government,
nothing less than an encouragement more than equal to the first cost
of their fish can enable their fishery to have a share of their own
markets in the West Indies.
The French also give a bounty of 5 livres per quintal upon all fish,
the produce of their fishery, carried into Spain, Portugal and Italy.
This bounty is also so extravagant as clearly to evince the opinion of
the French Government of the low state of their fishery. If the
Legislature here was to give a like bounty upon the fish of Your
Majesty's subjects carried on in those markets, it would amount to
120,000 Pounds per annum. Such a measure can therefore be cal-
culated merely to introduce their fish into those markets, but can
never be intended as a permanent encouragment.
Your Committee wish particularly to draw attention to these opin-
ions of the Lords of the Committee of the Privy Council of Trade,
to show how mistaken they were in supposing that the French in-
tended their bounties merely as a temporary expedient. It will fur-
ther appear that they have not only continued them down to the
present time, but have extended the fishery thereby to an extent
greater than at any former period.
Your Committee having shewn that it was large bounties alone
enabled the French to carry on the fishery on the coast of Newfound-
land, down to the period of 1793, have now briefly to remark, that
from the war which broke out in that year until the year 1814, with
the slight interruption of the Peace of Amiens of 1802, the British
had full possession of the fisheries undisturbed by the competition of
the French; during that period the fisheries greatly increased and
prospered, and the quantity of fish caught ranged from eight hun-
dred thousand to a million quintals per annum. It realized high
prices in all the foreign markets; the price at Newfoundland ad-
vanced to the enormous sum of 45s. sterling per quintal. The esti-
mated value of the exports, the produce of the fisheries of one or two
of the last years of the war, were stated to exceed two millions and
one half sterling.
Your Committee have now to draw your attention to the violent
and sudden revolution, the rapid and unparalleled decline -in the
trade and fisheries, consequent upon the Peace, first with France,
and then with America. To the French were ceded the Islands of
St. Pierre and Miquelon, and the shores from Cape Ray to Cape
John. To the Americans were soon after granted equally valuable
fishing grounds; and in addition their respective Governments
granted enormous bounties to uphold their fisheries, equal almost to
the intrinsic value of fish. It leaves no ground to doubt the cause
which brought such universal ruin at that period, upon the British
trade and fisheries. Your Committee cannot better point out the
1064 MISCELLANEOUS.
cause of the great depression of the fisheries of that period, than by
giving an extract from the evidence before the House of Commons
in 1817.
George Garland, Esq. states to the Committee, (Michael Angelo
Taylor, Esq., in the chair) — That
'Another cause of the distress of trade may be found in the sur-
render by our Government, to France, by the late treaty, of a large
part of the coast of Newfoundland, which is by far the most favour-
able part of the whole Island for the prosecution of the fishery, and
to which, in consequence of the general scarcity of fish about St.
John's and in Conception Bay, the inhabitants of those districts, the
most populous in the Island, were wont annually to resort during
the whole of the fishing season, though at a distance of 200 or 300
miles. Since the cession of the French Shore, the British fishermen
of the said districts, confined to their own coast, have not caught
above half the quantity of fish which they formerly did with the same
outfit. The merchants urgently requested the Government, previous
to the peace, to retain this valuable part of the island, and though
we do not presume to question the expediency of the sacrifice which
has been made of their individual interests for the promotion of
national objects, yet I would submit that it strengthens their claim
to reasonable relief ; and lastly, but by no means least, another cause
is to be found in the growing competition of the French Newfound-
land trade, which is fostered by its Government with the most anxious
solicitude, freed from duties either on its ships or produce, and
encouraged by enormous bounties on its produce, and on the men
engaged in the trade, as will appear by a document which I beg to
produce.
"FRENCH BOUNTIES ON THEIR NEWFOUNDLAND FISHERIES."
" On Fish exported from Newfoundland, or from France to the
French Colonies, 24 francs per pelletrical, which is equal to 12
francs or 10 shillings per English quintal of 112 Ibs.
" On fish exported from Newfoundland to France, and from thence
to Spain, Portugal, Italy, and the Levant Ports, 12 francs per met-
rical quintral, which is equal to six francs or five shillings per English
quintal of 112 Ibs.
" On fish exported from Newfoundland to Italy, Spain and Portu-
gal, direct, 10 francs per metrical quintal, which is equal to five francs
or four shillings and two pence per English quintal of 112 Ibs.
" On every killogramme of oil exported from Newfoundland to
France ten centimes, which is equal to 75 shillings per ton of 256
gallons English.
" Of every killogramme of cods' roes and eggs, from Newfoundland
to France, 20 centimes, which is equal to 8s. 4d. per English quintal
or cwt. Besides the above a bounty of 50 francs or 41s. 8d., per man,
is allowed to the French merchants for every man and boy employed
in the French shore fishery, and 15 francs or 12s. 6d. for every man
and boy employed in the French Bank fishery sailing annually from
the French ports.
" This competition has already excluded us from the French
markets, where in the year 1815 we disposed of 100.000 quintals of
fish ; it has met us in the markets of Spain and Italy, although, in a
MISCELLANEOUS. 1065
limited degree, owing to the recent re-establishment of the French
fisheries; and it is evident that nothing but the support and assist-
ance of our Government in some way or other can enable us to main-
tain the competition much longer with rivals who receive a bounty
equal to one third of the value of the article. I have now completed
the exposition of the causes of distress."
Mr. Attwood said —
" Because it appears that the French are actually prosecuting their
fishery with all the enterprise and activity that might be expected
from such unlimited encouragement, notwithstanding the French
fishery was so very unfortunate last year, that they were only able
to supply little more than France, and their own colonies with fish.
I am told, on the authority of the French Consul, that they have
despatched more than four times the number of vessels on the fishery
this year than they sent out last year. These are the grounds of my
opinion, and without support from our Government or the interven-
tion of some great political event, that three-fourths of the present
Newfoundland trade will go from this country, into the hands of
France in the space of three years."
The result of the representations and evidence adduced before the
Committee was the following Report.
" It appears also to your Committee, that the trade itself has ex-
perienced a serious and alarming depression. The causes from which
this has arisen will require, in the opinion of your Committee, in the
ensuing Session of Parliament, a much more detailed and accurate
investigation; but enough has been shown by the testimony of re-
spectable witnesses, to prove, before this House separates, that the
fisheries will be most materially injured, the capital embarked in it
by degrees withdrawn, and the nursery for seamen, hitherto so justly
valued, almost entirely lost.
Notwithstanding this strong representation on the part of a Com-
mittee of the British House of Commons, the subject has not since
been taken up by the Government. — No relief or support has been
afforded from that period to the present; the British fisheries have
been left to languish and contend with the unequal competition ; and
as it was clearly proved, by the evidence of Mr. Garland and Mr.
Attwood, the great and most important portions of the most valuable
of the Newfoundland fisheries have fallen into the hands -of the
French and Americans, and without any rivalry on the part of the
British. The British fishery is now confined to an in-shore fishery
prosecuted in punts and small craft, leaving the deep sea fishery on
the Great Bank and other valuable Banks and fishing grounds alto-
gether in the hands of the French and Americans.
Your Committee have no hesitation in stating that, if the framers
of the treaties of 1814 and 1818, had agreed to exclude the British
from these great fisheries, they could not more effectually have de-
prived them of all participation in them.
Your Committee will now briefly remark upon the state of the
fisheries from the peace of 1814, down to the present period, having
to contend with the difficulties already noticed. Thrown altogether
upon their own resources, unaided by the Parent Government, it
must appear difficult to account for the preservation, by the British,
of even a remnant of the fisheries. According to all mercantile calcu-
lation they should have fallen into the hands of the French and
1066 MISCELLANEOUS.
Americans; however, the necessities of the large population which
grew up during the period of a prosperous fishery, worked for itself
auxiliary means of employment. The cultivation of the soil, combin-
ing fishery and farming — has enabled them to exist in the country,
and thereby to preserve the inshore fishery, the only portion that now
remains to them. They have extended that fishery, and the aggregate
quantity of fish caught is equal to that of the amount of the most
prosperous years.
Your Committee, in making this admission, contend that it only
proves that a trade capable of holding up against difficulties that
would have overwhelmed any other in Her Majesty's wide extended
dominions, is worthy of more attention and consideration from the
Parent Government than has hitherto been extended towards it.
BRITISH BANK FISHERY.
The Great Bank Fishery suddenly declined after the Treaties of
1814 and 1818. In the year 1775 it gave employment to about four
hundred sail of registered vessels, averaging from eighty to one hun-
dred and forty tons burthen, employing from eight to ten thousand
fishermen and shoremen. As many as one hundred and forty sail
was fitted out from the District of St. John's, and the remainder
from the various harbours of the Island. This important branch of
the British Fishery was extensively prosecuted during the whole of
the French war. No sooner did the French regain the privilege of
prosecuting the fishery, than their extensive Bounties undermined
the British Bank Fishery. Various attempts have been made to
participate in it, but every attempt only brought ruin and disappoint-
ment on the British Merchant or fishermen; the consequence is, at
this time, that the great Newfoundland Bank Fishery, so valuable
in a commercial, but more particularly in a national point of view,
is surrendered, without a struggle, to the rivals of England, the
French and Americans; — these powers employing at least one thou-
sand vessels of considerable burthen, manned with not less than thirty
thousand seamen ; the British not having more than five vessels and
fifty men employed in the great deep-sea fishery on the Banks of
Newfoundland.
Your Committee have to draw your attention to the mode of fish-
ing lately adopted by the French ; they have adopted what is called
the Bultow system, by which means they extend lines and hooks
miles round the ship. For a particular and accurate description of
this mode of fishing your Committee have to refer to the statements
of Messrs. Mudge and Co., appended to this Eeport.
Your Committee, in reference to this subject, have reason to believe
that the Bultow system of fishing is most destructive; — it is a novel
mode of fishing, not sanctioned by any previous practice or custom. —
A question may arise whether it is not a violation of the spirit of the
treaty with France. It is a subject that should, without delay, be
brought under the consideration of Her Majesty's Government.
Your Committee have not sufficient data to give a particular and
authentic account of the French and American Fisheries prosecuted
in the Gulf of St. Lawrence and on the Banks and Shores of
Newfoundland.
MISCELLANEOUS. 1067
FRENCH FISHERIES.
It is universally admitted, by all those who are acquainted with
the subject, that the French occupy by far the best fishing stations.
Having possession of the Islands of St. Pierre and Miquelon, they
can prosecute the fishery to the Grand Bank with the greatest facility.
They have also what has been called the Garden of Newfoundland,
the line of coast from Cape Ray to Cape John; that portion of it
between Cape John and the Straights of Belleisle secured to them
the most prolific fishing grounds; they not only have the advantage
of catching a larger quantity of fish, but the climate is found, by the
absence of fog, much more suitable for making and curing it, and
preparing it for the foreign markets.
The principal British Fishery was carried on in that quarter
during the war. To use the words of an intelligent writer on the
subject: "British fishers are consequently driven to the shores of
Labrador, a longer voyage, where the quality of the fish, and the
means of drying and curing them, are far inferior. — The North-
Eastern coast of Newfoundland happens to be precisely that which
is most exempted from fog; the same winds which envelope other
parts of the Island in damp and mist, leaves this portion clear and
dry — a circumstance unknown, or apparently unregarded, by those
who, in addition to other concessions of land and water, seems thus
to have also given away the light and heat of the sun; the conse-
quence is, that in the curing of our fish a great part is destroyed by
the fog and damp, while the French fishermen, in addition to the
abundance and quality of their fish, possess and monopolize the still
greater advantage of the clearest and sunniest coasts."
Your Committee have reason to believe that this exclusive fishery
is an usurpation on the part of the French — that all they are entitled
to by treaty is a concurrent right; at the same time it must be ad-
mitted that their exclusive claim has, in some degree, been sanctioned
by the forebearance and policy of the British Government.
The extent of the French fishery of St. Pierre and Miquelon, and
on the other coasts of the Island, may be estimated by a catch of a
million quintals of fish, employing upwards of seven hundred sail of
Large ships, and from twenty to five and twenty thousand fishermen
and seamen. The French, both at St. Pierre and Miquelon, and on
the Northern part of the Island, carry on an illicit trade with the
British settlers, particularly in bait, for the supply of their Bankers,
which is greatly injurious to British interests, and calculated to
destroy the British fisheries on the coast by depriving them of their
regular supply of bait. Your Committee have to draw particular
attention to this point, and have to refer to the evidence appended to
this Report.
In making this brief reference to the French fisheries, your Com-
mittee must observe, that if the British and French fisheries were
prosecuted without encouragement in the form of bounties, British
industry, notwithstanding the other advantages possessed by the
French^ would assume its usual superiority, but it is impossible for
them to compete with the French, upheld as they are by immense
bounties. The object of France is not to create n trade, but to create
a r::\ y. Ii is fn^Hhlv said by Mr. MrCregor, in his history: "In
ceding to France the right of I'iaiiing on the shores of Newfoundland,
1068 MISCELLANEOUS.
from Cape John to Cape Ray, with the Islands of St. Pierre and
Miquelon, we gave that ambitious nation all the means that her gov-
ernment desires of manning a navy ; and, if we were determined to lay
a train of circumstances which, by their operation, should sap the very
vitals of our native strength, we could not more effectually have done
so than by granting a full participation of those fisheries to France
and America."
AMERICAN FISHERIES.
Your Committee, in referring to the American fisheries, have also
to say, that they have no data to ground a correct estimate of them ;
but they can state that it is very extensive, employing from one thou-
sand five hundred to two thousand sail of decked vessels, averaging
from forty to one hundred tons burthen. The catch of fish in the
British waters has been estimated at one million one hundred thou-
sand quintals, which must give employment to twenty-five thousand
fishermen and seamen. The American fishers are observed in great
numbers on the Grand Bank, and on the fishing grounds in the Gulf
of St. Lawrence — all along the shores of Nova Scotia, Prince Ed-
ward's Island, Newfoundland, and the shores of Labrador. They
commence their Fishery early in the Spring, and follow it up with
the greatest assiduity, to the latest period of the fall. The American
fishery is encouraged by a bounty of twenty shillings per ton, and the
supply of their own markets protected by a duty of five shilling per
quintal on foreign fish.
Your Committee have to observe that the great catch of Fish by the
Americans, supported as it is by bounties and other encouragements,
operates, concurrently with the French catch and bounties, to sap the
foundation of the British fishery.
By the Convention of 1818 the Americans of the United States are
allowed to fish along all our coasts and harbors, within three marine
miles of the shore, (an indefinite distance) and of curing fish in such
harbours and bays as are uninhabited, or, if inhabited, with the con-
sent of the inhabitants. The expert and industrious Americans, ever
fertile in expedients, and always on the alert in the produce of gain,
know well how to take advantage of such a profitable concession.
From the sea coasts of Newfoundland ceded to France, which
comprehend half the shores of the Island, and the best fishing
grounds, our fishermen have been expelled, and driven to the necessity
of resorting from two to four hundred miles further North, to the
coast of Labrador, where they are again met by the swarms of
Americans.
" By particular circumstances, and the better to accomplish their
object, the Americans are known to be guided by one feeling to act
more in union on arriving on the fishing coasts; they frequently
occupy the whole of the best fishing banks, to the exclusion of our
fishermen ; and their daring aggressions have gone so far as to drive
by force our vessels and boats from their stations, and tear down the
British flag in the harbors, hoisting in its place that of the United
States ; — they are easily enabled, from their vastly superior numbers,
to take all manner of advantage of our people. They frequently fish
by means of seines, which they spread across the best places along
the shores, and thus prevent the industry and success of the British
Fishermen."
MISCELLANEOUS. 1069
Mr. Young on the same subject, says —
"As early as the month of March if any stranger approach the
coast of Nova Scotia, his observations would induce him to believe,
that he was advancing toward the territory of some great commercial
State. At a short distance from the shore, and on the banks and
most productive fishing grounds, he would perceive fleets or con-
tinuous lines of small shallops, and if the day and season were
auspicious, he would discover that their crews were busily employed
in drawing forth the treasures of the deep. Seeing them thus an-
chored within view, nay, within almost the shadow of their shore,
and employed in appropriating the resources which would appear to
belong to it, the deduction would be irresistible that they had re-
cently left the neighboring harbors, and were of course manned by
the inhabitants. He would, however be in error. On inquiry he
would learn that they have come a distance of three hundred miles
to avail themselves of the privilege — that they belonged to a rival
state, and that they enjoyed the right by virtue of a treaty, which
the Government have bestowed, without necessity and without re-
turn. He would learn also, that this liberal concession was highly
disadvantageous to the inhabitants on the coast by lessening the
productiveness of the fishing grounds."
Extract from the minutes of the Legislative Assembly of Newfound-
land, 1846-7.
TUESDAY, DECEMBER 15, 1846.
Resolved, That a Committee be appointed to prepare Addresses
to Her Majesty the Queen, and both Houses of the Imperial Parlia-
ment, on the subject of the Fisheries of the Colony.
Ordered, That the Hon. Mr. Morris, Hon. Mr. Kent, Mr. Glen,
and Mr. Job, do form such Committee.
*******
THURSDAY, JANUARY 14, 1847.
The Hon. Mr. Morris, from the Select Committee appointed to
prepare an Address to Her Majesty upon the state of the Fisheries
of this Colony, reported that they had prepared a draft of the said
Address, which he read in his place, and is as follows —
To the QUEEN'S MOST EXCELLENT MAJESTY,
We, Your Majesty's devoted and loyal Subjects, the General As-
sembly of Newfoundland, beg most humbly to draw Your Majesty's
attention to the present state of the Fisheries of this, Your Majesty's
most ancient Colony; and at the same time to remind Your Majesty
that the Fisheries of Newfoundland, from the earliest period of
Transatlantic Colonization, were considered of great national im-
portance. In these fisheries were formed the first nursery for seamen
to man the Navy of England, which gained for her the dominion of
the seas, her vast Colonial Empire, and the trade of the world.
The General Assembly deeply regret the necessity they are under
of complaining of the unwise policy, sanctioned by the advisors of
Your Majesty s Royal Predecessors, in ceding to the subjects of
Foreign Powers the right of fishing on the Banks, and also the prin-
cipal parts of the Shores and Harbours of Newfoundland. By virtue
1070 MISCELLANEOUS.
of the Treaty of Utrecht, and by subsequent Treaties founded there-
on, the subjects of France exercise an exclusive right of fishing on
the best and most productive fishing ground; and by the American
Treaty of 1818, the subjects of the United States enjoy almost equal
privileges. Under the sanction of these Treaties the French and
Americans have monopolized the whole of the deep sea fishery on
the Grand Bank and other Banks, as well as the fisheries from the
principal Harbours in the Island. The subjects of France claim and
exercise an exclusive right to fish in all the Harbours between Cape
Ray and Cape John, an extent of upwards of three hunred miles of
coast; — they also occupy the Islands of St. Pierre and Miquelon, on
the opposite side of the Island. These privileges give the French the
command of the Northern fishery, the Western fishery, and the fish-
ery in the Gulf of St. Lawrence. The possession of the Islands of
St. Pierre and Miquelon gives them command of the fishery on
the Grand Bank and the productive fishing grounds in the Gulf of
St. Lawrence. The subjects of the United States of America par-
ticipate in all these advantages ; and the consequence is, the subjects
of Foreign Powers have engrossed the whole of the deep sea fishery.
To show to your Majesty the great decrease of the British deep sea
fishery, the General Assembly have only to state that in former
periods the British employed on the Grand Banks upwards of four
hundred ships, of the burthen of from 80 to 200 tons ; and upwards
of 1000 large boats, manned with from four to six men each, on vari-
ous other Banks. At the present time there are fitted out for the
Grand Bank from the Island of Newfoundland, by your Majesty's
subjects, not more than two small vessels, and the large class of
boats is reduced to about two hundred. In short, we can state that the
deep sea fishery has passed into the hands of Foreigners, and the only
fishery left to Your Majesty's subjects is the inshore fishery, prose-
cuted in small boats, each manned by two or three men. The Gen-,
eral Assembly have to state to Your Majesty that the deep sea Fish-
eries have always been considered the great nursery for seamen, and
they humbly presume to express to Your Majesty their opinion that
it is not consistent with sound policy to allow them to be engrossed
altogether by foreigners. On a moderate calculation, the number of
fishermen and seamen employed by them in the Bank and other
Fisheries of Newfoundland, does not fall short of forty thousand
men.
The General Assembly wish to draw Your Majesty's attention to
the value attached to the Newfoundland Fisheries by the Govern-
ment of France, which will more clearly appear by reference to
the Report of the Minister of the Marine of that country, for the
year 1829, to the King of France, recommending a continuation of
the Bounties for the support of the French Newfoundland Fisheries.
He said " Besides, the expense of Bounties is not without compensa-
tion, and it may be said none other is more beneficial to the state."
" This fishery employs and gives support to 12,000 seamen, who, even
supposing they could be employed in peaceable times in Your
Majesty's Navy, would cost the country from six to eight millions for
six or eight months in the year. In 1828, the total amount of Boun-
ties reached three millions. Thus this trade gives to the state for
three millions that naval advantage which the Admiralty could not
MISCELLANEOUS. 1071
dispense with, although the cost would be six or eight millions,
without reckoning many other expenses. Thus the only question
that has so long been discussed is this, whether the same advantages
may be obtained, at a reduced expense; prudence would forbid my
recommending at present an experiment which might compromise
this valuable trade, as well as in some degree the security of the
state" " That at present a reduction could not be made without
being liable to endanger the property of a great many merchants,
the existence of a large portion of our maritime population, and the
interests of a branch of the public service, to the prosperity of which
the whole national welfare is so closely allied"
The General Assembly, in drawing Your Majesty's attention to the
recommendation of the French Minister to the King of France, show-
ing the paramount importance, in a national point of view, of the
Fisheries on the Banks and along the shores of Newfoundland,
humbly take leave to remind Your Majesty that their great value
has been viewed in the same light by Your Majesty's Royal Prede-
cessors, and by the long line of eminent ministers and statesmen who
directed and guided their Councils.
MAY IT PLEASE YOUR MAJESTY — •
It is not the exclusive privilege exercised by Foreigners on the most
productive Fishing grounds that we so much complain of, as the
effect of the large Bounties and other protection afforded by the
Governments of France and America to their subjects engaged in the
Newfoundland Fisheries. These Bounties amount to many hundred
thousand pounds per annum ; the effect of which operates against the
British Fisheries more injuriously than would a direct impost for
an equal amount. It creates an unequal competition in the markets
in Europe and the West Indies, most injurious to Your Majesty's
subjects engaged in the Fisheries. British fish must be sold in these
markets at the same rate as the fish of the French and Americans,
caught under the protection of enormous bounties. There are many
other matters connected with this subject which we might adduce,
but we will not at present presume to press them on Your Majesty's
attention. We now most humbly pray that Your Majesty will direct
an inquiry to be made into the cause why the deep sea fishery on the
Banks of Newfoundland has been transferred altogether into the
hands of the subjects of France and America.
The General Assembly humbly pray Your Majesty will take steps
to persuade the Governments of France and America to withdraw
their Bounties to the Newfoundland Fisheries, so that Your Majesty's
subjects may be placed on an equal footing with them.
We humbly hope that means may be devised to afford some encour-
agement for the development of the Agricultural resources of the
country. Were it not for the employment afforded by the cultivation
of the soil, since the cession of the Fisheries to the French and
Americans by the treaties of 1814 and 1818, Your Majesty's subjects
could not have withstood the unequal competition, and must have
removed from the Island, and surrendered those valuable Fisheries
altogether into the hands of their foreign rivals.
Resolved, That the said Address be adopted.
Ordered, That the said Address be engrossed.
1072 MISCELLANEOUS.
On motion of the Hon. Mr. Morris, seconded by the Hon. Mr. Kent,
Resolved, That copies of the said Address, mutatus mutandis, be
presented to both Houses of the Imperial Parliament, and that the
Hon. Mr. Speaker transmit the Address to the House of Lords to the
Right Honorable Earl Clarendon, and the Address to the House of
Commons to the Hon. C. P. Wallace.
Extracts from the minutes of the Legislative Assembly of Newfound-
land, 1848-9.
WEDNESDAY, APRIL 18, 1849.
*******
Mr. Shea, from the Joint Committee of this House and Her Maj-
esty's Council to inquire into the state of the Fisheries of this Colony,
presented the draft of An Address to Her Most gracious Majesty,
which he read in his place, and afterwards delivered in at the Clerk's
table, where it was again read, as follows : —
To the QUEEN'S MOST EXCELLENT MAJESTY.
MAY IT PLEASE YOUR MAJESTY —
We, Your Majesty's loyal subjects, the Council and Assembly of
Newfoundland, in Session convened, beg leave most humbly to ap-
proach Your Majesty with feelings of the most profound respect
lor Your Majesty's person and government.
The present depressed condition of this Colony imperatively de-
mands of us that we should bring the subject prominently under the
notice of Your Majesty. We cannot believe that a feeling of uncon-
cern will pervade Your Majesty's counsels in regard to the interests
of this Island, the oldest transatlantic possession of the British
Crown; and though the benefits we might have hoped for have not
heretofore attended on our appeals on this subject to the parent gov-
ernment, the daily aggravating evils under which we labour compel
us to renewed effort to obtain a hearing for our just complaints.
We feel assured that a correct appreciation of these evils must lead
to the application of those measures of redress which a loyal de-
pendency may always confidently hope for at the hands of a paternal
government. We are sensible of the lively interest Your Majesty
entertains for all who live under the dominion of the British Crown
and that Your Majesty would not permit the continuance of a state
of things which experience has shown to be pregnant with ruinous
results.
The grounds on which we presume to rest our appeal for Your
Majesty's consideration are, that the interests of this colony were
sacrificed to views of Imperial policy. By the treaty of Utrecht and
subsequent treaties, foreign powers were granted the right of fishing
on the Banks and the principal part of the shores and harbors of
Newfoundland. The French have successfully claimed the right of
the exclusive enjoyment of the Fisheries from Cape Ray to Cape
John, an extent or three hundred miles of coast, and embracing the
most valuable portions of the fishing grounds of this Island. The
American Treaty of 1818, gives the subjects of the latter power privi-
leges nearly equal to those enjoyed by the French, and thus are the
natural rights of Your Majesty's loyal subjects ruinously compro-
MISCELLANEOUS. 1073
mised. The exigencies of Imperial interests might have demanded
these concessions at the hands of Your Majesty s predecessors; but
we humbly and respectfully submit whether it is consistent with any
recognized principles of justice, that the Imperial advantages on
which these Treaties were grounded should be purchased at the sac-
rifice of those rights, the preservation of which can alone secure the
prosperity of this ancient and loyal colony.
But even if the evil rested here — if it were simply the right of
foreign powers to concurrent privileges of fishing on our coasts, and
prosecuting their avocations on similar terms, we should feel but
comparatively small cause of complaint, for fair competition would
leave us but little to apprehend for tne success of our trade and
fisheries. Accordingly, in the abstract, the concessions embraced in
the treaties referred to would have been lightly regarded by Your
Majesty's loyal subjects; but they have been made the foundation
of the system under which those foreign powers now prosecute their
fisheries, sustained by enormous bounties which have urged them
into a condition of activity and strength, furnishing us every day
with fresh proofs of the hopelessness of unaided competition, of
which the decreasing productiveness of our fisheries and the awful
impoverishment of the people are a truthful and lamentable devel-
opment.
MAT IT PLEASE YOUR MAJESTY —
We look to the source of all this, and we find it has been for
matters of imperial policy that our interests have been thus totally
disregarded.
The various results of these bounties have frequently been brought
by the Legislature and the people of this Colony under the notice of
the Imperial Government. The foreign fisheries so sustained are
annually becoming augmented, while ours are marked by correspond-
ing diminution and decay. The effect of these bounties has been to
give to the French and Americans the entire deep sea fishing, form-
erly the boasted nursery for British seamen, but now completely
transferred to our powerful and ambitious rivals for maritime
supremacy. The bounty on the French-caught fish is fully equal to
the price usually obtained for British cure, and met as we are in
almost all our Markets by the protected fish of our competitors, we
are frequently driven to consent to sales which leave much less than
the actual cost of production.
A most fruitful source of the prosperity of the French fisheries is
to be found in the supplies of bait they receive from our shores for
the Bankers which fit out at St. Pierre and Miquelon. in direct con-
travention of the Imperial Act 26, G. 3., cap. 26. This traffic is car-
ried on to the serious injury of the British on that part of the coast
and to the detriment generally of our fisheries. This question is
ably treated of by Captain Loch of Your Majesty's ship Alarm, who
was employed in the protection of our fisheries in the past year, and
whose valuable report forms an appendix to this Address.
These evils have been progressing for many years until they have
reached a crisis which places our existence as a colony in utter peril.
The great fire in 1846 which swept away three quarters of a million
of the capital of the country assisted materially in hastening this
conjuncture, and precipitated the result which the operation of the
92909°— 8. Doc. 870, 61 -3, vol 3 29
1074 MISCELLANEOUS.
treaties in question was producing by slower but not less certain
means.
Since the period of that disastrous event, the sum of Thirty-five
Thousand Pounds have been disbursed from the public Treasury
of the colony to preserve the fishing population from actual starva-
tion.
Nor do we see a prospect of relief from a continued pressure while
the evils of foreign competition in our fisheries remain uncorrected.
So strong is the feeling widely spreading on this subject that num-
bers of our most hardy fishermen are quitting the colony to seek
from our rivals that remunerative employment which they despair
of being able to obtain at home, and it creates not unnaturally a
feeling of deep discontent that in the prosecution of similar pursuits
in which they are often together engaged, the subjects of other
powers find an adequate recompense for their toil, while British
fishermen in Newfoundland are unable to obtain the common neces-
saries of life, and have latterly been dependent in a great degree on
the bounty of the local government for support.
MAY IT PLEASE YOUR MAJESTY —
The result of such a condition of things must be inevitably ruin-
ous.— The continued emigration of our fishermen ran scarcely be
prevented, and a valuable portion of our population will be attracted
to swell the tide of competition which assails us. They will naturally
flee from a colony whose resources are withered by neglect, to obtain
that reward for their labour which is offered to them by the rivals
of British naval supremacy.
Neglect has long been our portion. While other Colonies have been
from time to time recipients of Imperial Bounty, no such aid has
ever been extended to Newfoundland, which, considered by reference
to its maritime and commercial importance, is the most valuable of
the transatlantic British possessions.
MAY IT PLEASE YOUR MAJESTY —
The people of this colony are not chargeable with the causes of its
present depression. The trade was fairly and legitimately carried
on, exhibiting none of those wild speculations which brought ruin
on other colonies, but sustaining itself without bounty or protection,
and had our natural rights been preserved the necessity for this
appeal would not have arisen. But for purposes of Imperial Policy
the best portions of our Fisheries were handed over to Foreign rivals,
whose operations have brought Your Majesty's loyal subjects to
their present alarming state.
It will not be a matter of surprise when we acquaint Your Majesty
that from the pressure created by all these adverse circumstances.
and the diminution of our revenue, the colony has within the last
six years contracted a debt of One Hundred Thousand Pounds.
The cession of so large a portion of our Fisheries by Your Maj-
esty's Royal Predecessors is the only intelligible cause of the evils
which necessitated this debt.
We therefore humbly submit that the Imperial Government should
relieve us from the liabilities which are so clearly the result of the
sacrifices forced on the colony by the measures adopted for Imperial
purposes alone.
MISCELLANEOUS. 107 5
The French Fisheries are upheld by the supplies of Bait they
receive from our shores. By the Imperial Act 26, Geo. 3, this
traffic is declared to be illegal; and yet it is vigorously carried on
because of the absence of a sufficient preventive force to suppress
it. On the coast of Labrador Your Majesty's subjects are exposed
to continued depredations on the part of the French and Americans,
and though annually visited by one of your Majesty's ships, this
serves but little more than to ascertain the fact that such incursions
are made, and that they can only be prevented by the continued pres-
ence of a Man-of-War during the summer season.
Two or three War-steamers employed during the Fishing-season
would be required to protect that portion of our rights which the
treaties have left us. Several French vessels of War are constantly
occupied in the protection of their Fishery, while the occasional
presence of one vessel is all we have hitherto had to show that
British protection extends to this ancient colony.
In the markets of Spain, Portugal and Brazil, our staple export
is subject to enormous rates of duty, and in the latter country a still
further increase appears to be contemplated. If firmly urged by
your Majesty's Government we should have confident hope that on
the occasion of new treaties with these powers, arrangements may be
effected less detrimental to our interests.
We humbly submit the premises for your Majesty's consideration.
And we pray that such assistance may be extended to us as will
relieve the Colony from its pecuniary embarrassment, and that such
other measures may be adopted as will avert the ruin which further
neglect of this loyal dependency must inevitably, and at no distant
period, occasion.
On motion of Mr. Shea, seconded by Mr. Job.
Resolved, That the said Address be adopted and engrossed.
Extracts from the journal of the legislative assembly of Nova
Scotia, 1853.
Registrar of the Vice- Admiralty Court to Provincial Secretary
Howe.
REGISTRY OF THE COURT OF VICE ADMIRALTY AT HALIFAX,
August 12, 1852.
SIR : I have the honor to enclose herewith, for the information of
his excellency the lieutenant-governor, a return of the vessels prose-
cuted in this court, belonging to American citizens, and seized for
fishing, or preparing to fish, in British waters, from 1817 to 1821,
both inclusive. Also a return of the number of American vessels
seized for violation of the convention made between the government
of Great Britain and the United States of America, in the year 1818,
and prosecuted in this court, with the dates of their seizure and con-
demnation or restoration. Amongst the papers in the cases of the
Betsy and Polly, is a notice endorsed on the fishing licenses of these
vessels, of which I beg permission to enclose a copy.
I have the honor to be, Sir, Your obedient servant,
SCOTT TREMAIN, registrar.
To the honorable JOSEPH HOWE,
Provincial secretary, c&c., &c., &c.
1076
MISCELLANEOUS.
[Inclosure No. 1.]
COURT OF VICE ADMIRALTY AT HALIFAX.
A return of American vessels seized and prosecuted in this court, for
fishing, or preparing to fish, within British waters, from 1817 to
1821. Also a return of the number of American vessels seized for
violation of the convention made between the governments of Great
Britain and the United States of America, in the year 1818, and
prosecuted in this court, with the dates of their seizure and con-
demnation or restoration.
Name of vessel.
Date of seizure.
Condemnation or
restoration.
Schr. John, (seized by H. M. S. Dee, at Ragged Island.)
General Jackson
Isabella
Enterprise
Exchange
Defiance
Lucy
Welcome Return
Superb
Random
Native
Rising Sim
Jefferson
Oliver Cromwell
Nine Sisters
Rambler
Violet
Fox
Boat Hake
Prudence
Sally
Raven
Nabby, (seized by H. M. S. Belette, off Pope's Harbor,
coast of Nova Scotia, claimed, defence put in,)
Washington, (seized by H. M. S. Saracen,)
* Betsey, (seized and sent in to Halifax,)
Polly, (seized on south side Bay of Fundy.) N. B. — Simi-
lar indorsation to above on the "Polly's" license
Nancy
Rising States, (seized at Gulliver's Hole, Bay of Fundy,)..
Golden Rule, (seized by government brig Chebucto.)
Milo, (seized at Gulliver's Hole, Bay of Fuudv, by H. M. S.
Bellette.) ." '.
Caroline, (claimed.)
White Oak
Hero
Combine
Shetland
Java
Independence
Magniola
Hart
Battelle
Hyder Alley
Eliza
May Flower
Papineau I
Mary
Alms
Director
Ocean
Pioneer
Two Friends
Mars
Egret
Warrior
Hope
May Flower
Washington
Hyades
Leouidas
Harp
Tiber. . .
5th June, 1817
Restored.
7 i
16th
28th
8th July, 1818
28th July, 1818
August, "
June, 1821
27th May, 1821
2Cth May, 1821
1st July, 1821
27th May,
9th June,
1821
1821
1st June,
1st Novr.
4th June,
May,
26th May,
25th May,
May,
June,
14th "
14th "
June,
2nd "
2nd "
llth Sep.
18th Sep.
1st Oct.
6th May,
20th May,
20th Sep.
20th Sep.
13th Oct.
13th Oct.
Kith Oct.
7th May,
loth May,
llth May,
15th Sep.
29th Oct.
1838
1838
1839
1839
1839
1839
1839
1839
1839
1840
1840
1840
1S40
1840
1841
1841
1841
1841
1841
1841
1841
1843
18-48
1849
1850
1851
24th August, 1818.
24th August, 1818.
2-:th August, 1818.
Restored.
22nd August, 1821.
Restored.
21st August, 1821.
Restored.
21st August, 1821.
2Sth Jany. 1S39.
2Sth Jany. 1839.
8th July! 1S39.
5th August, 1839.
5th August, 1839.
5th August, 1839.
5th August, 1839.
8th July, 1S39.
8th July, 1839.
8th July, 1839.
Restored.
10th July, 1840.
10th July, 1840.
8th Deer. 1840.
8th Deer. 1840.
8th Deer. 1840.
18th Aug. 1841.
Restored.
2nd Xov. 1841.
2nd Nov. 1841.
9th Nov. 1841.
Restored.
7th Dec. 1841.
1st Aug. 1843.
5th Sep. 1848.
29th June, 1849.
28th Jan. 1851.
* Indorsement on schooner Betsi/'s fishery license before mentioned.
MISCELLANEOUS.
1077
It is hereby notified, that It Is the earnest desire of rear admiral Sir David Milne, com-
mander in chief of his majesty's ships and vessels in North America, and in the lakes of
Canada, in endeavouring to preserve the maritime rights of his majesty from infringe-
ment, to avoid, as much as possible, subjecting the vessels and people of the United States
of America engaged in the fisheries to any loss or interruption which they have made
themselves liable as to the just rights which belong to the maritime dominions of his
majesty in North America. You are therefore allowed to pursue your voyage without
further detention, taking notice, however, that if you are again found trespassing on his
majesty's rights you cannot expect to receive further indulgences ; and you are requested
to notify to the vessels of your nation, as far as in your power, to avoid interfering with
these fisheries which exclusively appertain to his majesty's subjects, as they will be here-
after proceeded against as the law directs. Given under my hand at Halifax, 58 year of
H. M. reign, 1818.
(Signed) DAVID MILNE,
Commander in chief.
Dated August 12, 1852.
SCOTT TREMAIN, registrar.
[Inclosure No. 2.]
REGISTRY OF THE COURT OF VICE ADMIRALTY AT HALIFAX.
Abstract shewing the places at which the respective American vessels
herein mentioned were seized for infraction of fishing laws, taken
from affidavits and examinations on file in this court.
Name of vessel.
Date of seizure.
Where seized.
Schr. John :
5th June, 1817
<( a n
11 « it
« ii a
it ii H
a it it
a a a
it it a
7th " '
a it
H II
II It
II II
II II
16th "
it n
n ii
28th "
8th July, 1818
28th July, 1818
a it it
Aug. "
June, 1821
27th May, 1821
26th May, 1821
1st July, 1821
27th May, 1821
9th June, 1821
1st June, 1838
1st Nov. 1838
4th June, 1839
May, 1839
26th May, 1839
25th May, 1839
May, 1839
June, lN3i>
14th June, 1S39
14th June, 1839
June, 1839
2nd June, 1840
2nd June, 1840
18th Sep., 1840
1st Oct. 1840
These vessels were seized while at anchor in Ragged
Island harbor.
Seized at the entrance of Ragged Island harbor.
Seized at Cape Negro.
jSeized at the mouth of Cape Negro harbor.
Seized while at anchor under C. Negro, about one and
a half miles from land.
Seized at Cape Negro harbor.
Seized going out of C. Negro harbor.
Seized in Cape Negro harbor.
In the basin of Annapolis, lying to under a foresail.
At Gut of Annapolis, within half a mile of the land.
\Seized in the Bay of Fundy, one mile distant from
/ Trout Cove.
In Mackarel Cove, Beaver Island, lying at anchor.
Off Pope's harbor.
In Lipscomb harbor,
ditto
At Gulliver's Hole, Bay of Fundy.
At Turney's Cove, in the Gut of Canso.
Whilst under sail at the distance of about three quar-
ters of a mile from the western shore, Gut of Canso.
Yankee Harbor, \\ bite Head.
At the north-east harbor of Tusket, for fishing off
Tusket harbor.
Fishing at Tusket Island.
JAt Tusket Harbor.
VAt Beaver Island, for setting nets at Strait of Canso.
|At Ellenwood Harbor, Tusket Island, for fishing
> abreast of Friar Head, within a line drawn from
I Margurite Island to Cheticamp Point.
Abreast of Friar Head or Point near Margaree, In Cape
Breton, within the headland of Cheticamp, within
two miles of the coast.
General Jackson
Isabella
Enterprise
Exchange
Lucv
Welcome Return
Superb
Random
Defiance
Nati ve
Rising Sun
Jefferson
Oliver Cromwell. .......
Nine Sisters
Rambler
Violet
Fox
Boat Hake
Prudence
Sally
Raven
Nabbv
Washington
Betsey
Polly
Nancy
Rising States
Golden Kule
Milo
Caroline
Hero
Combine
Shetland
Javam
Tndpppn(len<*e
Maguiola
Hart
Battelle
Hyder Ally
Eliza
Mayflower.
Papineau
Mary
Director
o^ftn ............ » L
1078
MISCELLANEOUS.
Name of vessel.
Date of seizure.
Where seized.
Schr. Alms
llth Sep. 1840
6th May, 1841
2<)th May, 1841
20th Sep. 1841
ditto.
13th Oct. 1841
13th Oct. 1841
13th Oct. 1841
7th May, 1843
6th Aug. 1844
10th May, 1848
llth May, 1849
loth Sep. 1850
29th Oct. 1851
Within one mile distance from the shore of Inverness
Cape Breton.
Between Petite Passage and Sandy Cove.
One mile off Yankee Harbor, county of Guysboro'.
[•Off Margaree Island, one mile from shore.
Ofl north side Sable Island,
j Within Margaree Island, Cape Breton.
Whilst at anchor in the Bay of Fundy, about five or
six miles from the land.
Off Cape Ann, eight miles from shore.
In the Bay of Fundy, off Gulliver's Hole.
At the mouth of Liscomb Harbour.
Within Margaree Island.
About one and half miles off Coast of Cape Breton.
Pioneer
Two Friends
Mars
Egret
Warrior
Hope
Mayflower.
Washington
Argus* (condemned 5th
Nov. 1844)
H vades
Leonidas
Harp
Tiber
* The following abstract Is copied from an affidavit made by Phillip S. Dodd, seizor,
dated 19th August, 1844.
"And the deponent saith, that he is now in charge of the schooner ' Sylph,' employed by
the government of this province for the protection of the trade of the province, and for
the prevention of illicit trade. And the deponent saith, that on Tuesday, the sixth day
of August instant, when the deponent was proceeding round the said island in the said
vessel, in discharge of his duty, as seizing officer under the said commission, he saw a
vessel at anchor and engaged in fishing off St. Ann's Hay — that deponent made for and
hailed the vessel, and directed the master to send his boat on board, which was accordingly
done — that when the deponent hailed the said vessel she was lying at anchor and actually
engaged in taking fish, there being several lines over the vessel's side, and fish were
hauled in after he hailed — that the master of the said vessel then came on board the
Sylph in his own boat, when the deponent ascertained that the said vessel was an American
fishing vessel, called the Argus, of about forty or fifty tons burthen, of and belonging
to Portland, in the State of Maine, in the United States of America, and that the master's
name was William Doughty — and the deponent saith, that when the master had boarded
the Sylph and the deponent had ascertained the character of the vessel, the deponent
pointed out to him the headlands of Cape North and Cow Bay, and informed him that he
was fishing on grounds prohibited by the said treaty — and the deponent saith, that the
said master freelv admitted that the place where he was then fishing was inside of a line
drawn from the headlands of Cape North and Cow Bay — and the deponent saith, that he
informed the said master that his vessel and cargo were liable to seizure, and that deponent
accordingly seized the said vessel, her tackle, apparel, furniture, and cargo, for an infringe-
ment of the said treaty — and the deponent saith, that the place whore the said vessel was
at anchor and fishing, when deponent seized her, was off St. Ann's Bay, on the eastern
coast of the island of Cape Breton, about eight miles from the nearest land, but at least
two miles within the headlands of Cape North and Cow Bay."
SCOTT TREMAIN, Regr. C. V. A.
Vice-Admiral Seymour to Lt. Governor Le Marchant.
BASILISK, AT P. E. ISLAND, 23rd August, 1852.
SIR: I have the honor to forward Your Excellency a copy of
Statements made to the Officers of the hired armed Tender " Tele-
graph " as I think it right you should be informed of the notices
which are said to have been issued to the Fishing Vessels of the United
States, by the Commanders of the Provincial Vessels emploj^ed for
the protection of the Fisheries; and I am not aware of the lines
therein described having been sanctioned by authority.
I have, &c.
G. F. SEYMOUR,
Vice- Admiral, &c., &c., &c.
His Excellency SIR GASPARD LE MARCHANT, &c., &c., &c.
MISCELLANEOUS. 1079
[Inclosure.]
Statements of the Masters of Four American Fishing Vessels, touch-
ing the information received by them from the Commanders of
the Provincial Vessels Halifax and Responsible, respecting the
limits within which they were allowed to fish.
1. R. W. Armistead, Master of the United States schooner Ange-
nora, of Frankfort, states about the 27th of July, he went on board
the Responsible, and was informed by her Commander, that if he
found him fishing within three marine miles of a line drawn from
Cape Gaspe to North Point of Prince Edward's he would seize his
vessel.
2. Stephen Morey, master of the U. S. schooner R. Roster, of Deer
Island, stated that he went on board " Halifax " laying in McNair's
Cove, Gut of Canso, about the 23rd of July, and was informed by
the Commander of that vessel, that his orders were to draw a line
from Port Hood to the East Point of P. E. Island, thence to the
North Point of P. E. Island, thence to Birch Point on Mission Island,
and that he would seize any vesels that he found fishing within three
marine miles of that line.
3. William Page, Master of the U. S. schooner Paragon, of New-
buryport, stated to Mr. Sutton, that on or about the 23rd of July he
was informed by the Commander of the Schr. Responsible that he
should draw a line from headland to headland on any part of the
coast of Nova Scotia, and seize any vessel that he found fishing
within three marine miles of such a line.
4. Stephen Randall, Master of the U. S. Schr. Montezuma, states
that on or about 20th July, whilst laying in Pirates Cove, Gut of
Canso, he met the Master of the Halifax, (James Laybold), who
informed him that he was not allowed to fish within three marine
miles of a line drawn from the North Cape to Cape Gaspe, and that
he would seize his vessel if he found him fishing within that distance
of that line.
Several other Masters of American vessels corroborated these
statements, but I did not think it necessary to take the particulars.
Lieutenant Governor Le Marchant to Vice Admiral Seymour.
GOVERNMENT HOUSE,
Halifax, August 26, 1852.
SIR: Referring to your Excellency's letter of the 23rd instant,
which, with its enclosures, I have had the honor to receive, I beg to
remind you that copies of the Instructions under which the Captains
of the Provincial Cruisers are acting, are in your Excellency's pos-
session. On reference to these you can satisfy yourself that they
contain no authority whatever to act upon our construction of the
Convention, except where Vessels are actually found fishing within
three marine miles of the shore.
Your Excellency may be assured that the Provincial Government
have every desire to avoid controversy on the point now under dis-
cussion by the Governments of Great Britain and the United States.
1080 MISCELLANEOUS.
Copies of the statements made by the Masters of the American
Fishing Vessels have been sent to the Captains of the Halifax and
Responsible, and I will communicate with you again when I have
their explanations on each representation respectively that the Amer-
ican Masters have made.
I have, &c.
(Signed) J. GASPARD LE MARCH ANT.
Vice- Admiral Sir G. F. SEYMOUR, &c., &c., &c.
Provincial Secretary Hoive to Captain Laybold.
PROVINCIAL SECRETARY'S OFFICE,
Halifax, August 26,
SIR: I am commanded by the Lieutenant Governor, to call your
attention to the enclosed copy of a Despatch from Vice Admiral Sir
George F. Seymour, with statements of certain Masters of American
Fishing Vessels enclosed. You will, without delay, furnish me with
such explanation as will enable the Lieutenant Governor to judge
how far the conversations which are made matter of complaint, have
been accurately reported. And, in the meantime, you will take care
to detain no vessel which is not found trespassing within three miles
of land.
I have, &c.,
(Signed.) JOSEPH HOWE.
Captain J. LAYBOLD, P. R. C., Halifax.
(A similar letter addressed to Captain P. Dodd, P. R, C. " Re-
sponsible")
Captain Daly to Provincial Secretary Howe.
PROVINCIAL SCHOONER " DARING,"
Gut of Ganso, August 28th, 1852.
SIR : On my arrival here this morning from Port Hood, I found an
American fishing Schooner taking on board Empty Barrels for her
fishing Voyage, and as the thing is becoming quite a practice, and as
the question has been several times asked me if it can be done, to
which I declined giving any answer until I have the opinion of the
Government on the subject.
I have been told that more than one American Vessel has landed
a load of Herrings from Magdalen Islands in the Strait, and fitted
out again for the mackerel fishery.
Our fishermen complain that American vessels, with all their other
advantages, should be allowed to fit out so convenient to the fishing
ground. As the hook and line fishery has not as yet commenced on
Cape Breton Shore, I will await your answer in visiting all parts of
the Strait and Arichat, calling at Plaister Cove on Mail day, where
you will please direct.
I am, Sir, Your most obedient Servant,
JAMES DALY.
The Honorable JOSEPH HOWE,
Provincial Secretary, Halifax.
MISCELLANEOUS. 1081
Captain Dodd to Provincial Secretary Howe.
PORT HOOD, CAPE BRETON, August 29,
SIR: Since my report of the 23rd I have been down the eastern
shore, and returned to Port Hood on the 29th. On Friday last T had
the honor of seeing the Admiral on board H. M. S. Basilisk, off Port
Hood Island, and received from him a copy of two statements made
by American fishermen, with reference to information said to have
been given by me.
1st. Kr. W. Armistead, Master of the IT. S. Schr. " Agenora" of
Frankfort, states that, about the 27th of July last, he went on board
the Schr. " Responsible" and was informed by her Commander, that
if he found him fishing within three marine miles of a line drawn
from Cape Gaspe to the north point of Prince Edward Island, he
would seize his vessel.
2nd. William Page, Master of the U. S. Schr. " Paragon" of New-
buryport, stated to Mr. Sutton, that, on or about the 23rd day of
July, he was informed by the Commander of the Schr. " Responsible"
that he would draw a line from headland to headland on any part of
the Coast of Nova Scotia, and seize any vessel he found fishing within
three marine miles of such a line.
These statements I have copied verbatim, and although not called
upon to answer them, I still think it my duty to do so. The first is
altogether false ; there has not been any American Captain on board
the Schr. " Responsible" since I have had charge of her, except a
Captain Dixpn, of the Schooner Empire, which vessel was repairing
at that time in the Strait of Canso ; and again, on the twenty-seventh
of July, the Schooner Responsible was coming up from Margaree
Island, both which facts can be attested to if required by half the
Ship's Company; and as I had nothing to do at Prince Edward's
Island, it is scarcely probable, I should have made any Statement
with reference to any lines to be drawn on that Coast.
The assertion of William Page, Master of the Schooner Paragon,
may be correct, for I did to several American Captains (and he may
have been one of them) say, that I should draw a line from the head-
lands of the Coast and Bays of Cape Breton, and seize all American
Vessels found trespassing within three marine miles of such line ; and
such are my intentions until further orders, as I consider myself
bound to do so by my instructions, in which I am referred to the
Convention of 1818; and as it would be great presumption in me to
attempt to put any construction on that Treaty, I feel myself bound
by the opinions of the Queen's Advocate, and Her Majesty's Attorney
General, given in 1841; and also by the result of the trial of the
American Schooner Argus, which vessel was seized by me within a
line drawn from Cow Bay Head to Long Point, near Cape North,
Cape Breton, and condemned.
As the Halifax and Daring are about this part of the Coast, I shall
proceed through the Strait of Canso, and down the South Shore of
Cape Breton, and return by Cape North,
I have the honor to remain, Sir,
Your obedient Servant,
P. S. DODD.
The Honorable the PROVINCIAL SECRETARY, &c., &c., &c,
1082 MISCELLANEOUS.
Provincial Secretary Howe to Captain Daly.
PROVINCIAL SECRETARY'S OFFICE, September 1st, 185%.
SIR: Referring to your Letter of the 25th ult, I beg to acquaint
you, that American Vessels which have regularly entered at a Port
where there is a Revenue Officer, can land fish or purchase barrels,
but they have no right to an irregular use of this privilege at places
where no Officer is stationed.
I am, Sir, Your Obedient Servant,
JOSEPH HOWE.
CAPT. DALY, Commanding Schr. Daring.
Captain Dodd to Provincial Secretary Howe.
PORT HOOD, CAPE BRETON, September 1st, 1852.
SIR: I have the honor to acknowledge the receipt of your letter,
dated 26th August, enclosing a copy of a Despatch from Vice Admiral
Sir George F. Seymour, with statements of certain Masters of Ameri-
can Fishing Vessels, a copy of which statements was handed to me by
the Vice Admiral on the Twenty-seventh of August, and which I
answered on the Twenty-ninth,
The orders not to detain Vessels unless found trespassing within
three miles of land shall be strictly attended to.
I have, &c.,
P. S. DODD.
The Honorable the PROVINCIAL SECRETARY.
Extracts from the journal of the legislative assembly of Newfound-
land, 1864.
Duke of Newcastle to Governor Bannerman.
Copy of a despatch from the secretary of state for the colonies in reply to a
request from the governor that the copy of a draft bill for regulating the
fisheries may be looked over, and any parts pointed out, such as probably
might not be sanctioned by the Crown.
DOWNING STREET, 3d August. 1863.
SIR : I have the honor to acknowledge the receipt of your despatch
No. 34 of the 29th June, enclosing a printed copy of the proceedings
of a committee appointed to enquire into the state of the fisheries of
Newfoundland, together with a draft bill framed with a view to
their proper regulation, and requesting that the provisions of this
draft bill may be looked over, and any parts of it pointed out, such
as probably might not be sanctioned by the Crown if it were passed.
2. I apprehend that it is not your expectation that I should ex-
press an opinion respecting the practical modes of conducting those
fisheries, it being plain that the inhabitants of Newfoundland are or
ought to be best capable of judging what regulations are calculated
to increase the productiveness of their own seas, and with respect to
imperial interests I do not think it desirable to anticipate that close
inquiry to which any act passed upon this matter must be subjected
in order to ascertain that it does not infringe upon the right guar-
MISCELLANEOUS. 1083
anteed to foreigners or run counter to any principle of imperial
policy.
3. The observations which suggest themselves to me, however, on
the perusal of the draft bill are —
1st. That if any misconception exists in Newfoundland respecting
the limits of the colonial jurisdiction, it would be desirable that it
should be put at rest by embodying in the act a distinct settlement
that the regulations contained in it are of no force except within three
miles of the shore of the colony.
2nd. That no act can be allowed which prohibits expressly, or is
calculated by a circuitous method to prevent, the sale of bait.
3rd. That all fishing acts shall expressly declare that their pro-
visions do not extend or interfere with any existing treaties with any
foreign nation in amity with Great Britain.
4th. That, in any part of the colonial waters, it would be highly
unjust and inconvenient to impose upon British fisherman restrictions
which could not, without violating existing treaties, be imposed upon
foreigners using the same fisheries. On this point, however, I would
refer you to my despatch, marked " confidential," of the 2nd of
February.
I have, &c., &c.
NEWCASTLE.
Governor Sir A. BANNERMAN.
The Marquis of Salisbury to M. Waddington.
FOREIGN OFFICE, July 9, 1889.
M. L'AMBASSADEUR : In the note which I had the honour of
addressing to your Excellency on the 28th March last, relative to the
question of the lobster fishery in the waters of Newfoundland, I
stated that I proposed to address to you a further. communication
in reply to the observations contained in your note of the 7th Decem-
ber on the general subject of the Newfoundland fisheries.
The note in question treats of the claim of Messrs. Dupuis-Robial
and Besnier for compensation on account of the diminution of their
catch of fish, which they attribute directly to the use of cod-traps
by British fishermen.
In my note of the 24th August, 1887, relative to this claim, I had
stated that the right of fishery conferred on the French citizens by
the Treaty of Utrecht did not take away, but only restricted during
a certain portion of the year and on certain parts of the coast, the
British right of fishery inherent in the sovereignty of the island.
And in my subsequent note of the 28th July last I observed that the
right of British subjects to fish concurrently with French citizens
has never been surrendered, though the British fishermen are pro-
hibited by the second paragraph of the Declaration of Versailles from
interrupting in any manner by their competition the fishery of the
French during the temporary exercise of it which is granted to them.
In your note of the 7th December vour Excellency meets these
arguments by asserting that the Frencli had always had the exclu-
sive right of fishery in virtue of their sovereignty over Newfound-
land. That when that sovereignty was transferred to England by
the Treaty of Utrecht, the right of fishery reserved to subjects of
1084 MISCELLANEOUS.
the King of France on a portion of the coast necessarily remained an
exclusive right in the absence of any express provision to the con-
trary. Further, that in the negotiations at Versailles in 1782-83
the English negotiators, by an appeal to the moderation of the Court
of Versailles, succeeded in obtaining, not any admission of a concur-
rent right of fishery, but an abandonment by France of fishing
rights on part of the coasts on which British subjects had encroached,
in exchange for exactly similar rights on an equivalent portion of the
coast elsewhere. That in the negotiations for the Peace of Amiens
of 1802 the Cabinet of Paris had thought it would be desirable to
establish the French right to exclusive fishery by a modification of
Article XIII of the Treaty of Utrecht, but that Mr. Fox did not con-
sider such an amendment opportune, and urged that it would be
sufficient to return purely and simply to the text of 1783, as the
British Government had never' questioned the French right to
exclusive fishery.
This train of reasoning presents a historical view of the subject
which is entirely at variance with the information in the possession
of Her Majesty's Government. I have thought it would contribute
to the elucidation of the subject that the several points wlii- h I have
briefly recapitulated above should be examined in detail by the
light of the authentic records at the disposal of this Department and
the Colonial Office, and the result 01 this examination has been
embodied in a Memorandum of which I inclose copies, and to which
I request your Excellency's attention.
You will find what appears to Her Majesty's Government to be
indisputable evidence that the sovereignty of Newfoundland has
from the earliest times belonged to the British Crown, and that the
interests of France were limited to the possession of Placentia, and
to temporary occupancy by conquest or settlement of certain por-
tions 01 the adjacent coast. All these interests were abandoned by
the Treaty of Utrecht, which stipulated that no claim of right should
ever henceforward be advanced on behalf of France, and that it
should be allowed to her subjects to catch fish and dry them only on
land on a certain specified portion of the coast. The concurrent
right of British subjects to fish off this part of the coast was undoubt-
edly asserted and put in practice subsequent to the Treaty, and not
later than 1766, and a short time afterwards it began to give rise to
repeated complaints from the French Government, not on the
ground that it was in itself contrary to the Treaty, but because of
the manner in which it was exercised, which was said in many cases
practically to derogate from and annul the liberty of fishery accorded
to the French. The arrangements made at Versailles in 1783 were
not obtained by appeals to the moderation of the French Govern-
ment with the view of obtaining concurrent rights of fishery for
British subjects, but were the outcome of negotiations in which the
French Plenipotentiary endeavoured, but unsuccessfully, to obtain
the explicit concession of an exclusive right of fishery for the French.
It is no doubt by an accidental error merely that Mr. Fox, who
was Secretary of State during the latter portion of these nego-
tiations, is mentioned by your Excellency as having given certain
assurances during the later negotiations for the Treaty of Amiens in
1802, when he was not a member of the Government. But I have
been unable to discover, either in the instructions of Lord Hawkes-
MISCELLANEOUS. 1085
bury in this latter period, or in the Reports of Lord Cornwallis, who
was the British Plenipotentiary, any indication that either of them
gave any assurance whatever that the British Government had never
questioned the exclusive character of the right of fishery accorded
to the French under the Treaty of Utrecht. Such a statement on
their part would indeed have been in absolute contradiction to the
facts.
The question therefore hinges mainly on the interpretation to be
given to the arrangements made at Versailles in 1783, and on this
point I must be permitted to invite special attention to paragraphs
29-38 of the Memorandum which I have the honour to inclose, and
to refer your Excellency to Lord Palmerston's note to Count Sebas-
tiani of the 10th July, 1838, of which your Excellency has only
quoted a small, and that, as it seems to me, the least significant,
portion.
For you will find, on reference to the original, that certain words
have been omitted, in making the extract, which materially alter the
sense, and that the privilege which, as Lord Palmerston states, "has,
in practice, been treated by the British Government as an exclusive
right during the period of the fishing season, and within the pre-
scribed limits," is described by him as "a privilege which consists in
the periodical use of a part of the shore of Newfoundland for the
purpose of drying their fish;" while in the very next sentence Lord
Palmerston goes on to say that "the British Government has never
understood the Declaration to have had for its object to deprive
British subjects of the right to participate with the French in taking
fish at sea off that shore, provided they did so without interrupting
the French cod fishery." A perusal of this passage of the preceding
paragraph, and of those which succeed it, showing the grounds on
which Lord Palmerston based his conclusion, will, I think, convince
your Excellency that the arguments advanced in my previous com-
munications are in consonance with the views which have always
been expressed by Her Majesty's Government.
To turn to the more immediate object of this correspondence, the
question of the injury said to be caused to the French fishery by the
use of cod-traps by British fishermen, I have already had the honour
of informing your Excellency that, pending the enforcement of the
Act which has been passed by the Colonial Legislature for the entire
suppression of these traps, special instructions have been issued to
the British naval authorities which Her Majesty's Government trust
will be effectual in preventing any undue interference by such engines
with the fishery of French citizens. In this and in all other respects
it is the earnest wish of Her Majesty's Government to do all in their
power to insure the enjoyment by the French fishermen of the rights
given to them under the Treaty and Declaration of 1783.
But I can only repeat that the claims preferred on account of
Messrs. Dupuis-Robial and Besnier do not appear to Her Majesty's
Government to be such as they can consent to entertain. These
claims rest virtually on the fact that the amount of fish caught by
the complainants was considerably below the average of former sea-
sons, that they believe from hearsay evidence that British fishermen
who used cod-traps in the vicinity were more successful, and that they
attribute their own want of success to this cause, as they do not
know to what else it could be attributable. It is admitted by some
1086 MISCELLANEOUS.
of the deponents that they did not even apply to the British naval
officers for the removal of any of the traps, as they did not think it
would be of any use; by others that they did so apply, and that the
traps were removed, though they assert that these were afterwards
replaced, when apparently they took no further steps.
Her Majesty's Government have every wish that the assurances
contained in the Declaration of 1783 should be punctually and com-
pletely fulfilled, but they cannot admit that there is anything in
those assurances, however liberally they may be construed, which
should involve liability for such a claim.
I have, &c.
(Signed) SALISBURY.
[Inclosure.]
Memorandum.
The French Ambassador, in his note dated the 7th December.
1888, reaffirms the French contention as to the exclusive character
of the right of fishery enjoyed by French citizens on part of the
Newfoundland coast, and again urges the claim for compensation
preferred by Messrs. Dupuis-Robial and Besnier on account of the
damage said to have been sustained by them through the use of
cod-traps.
2. M. Waddington expresses surprise that Her Majesty's Govern-
ment have now for the first time asserted the essential right of
British fishermen to fish by the side of French subjects, and have
alleged that this right has never been surrendered, and the French
Ambassador assumes that this doctrine is based upon the silence of
Article XIII of the Treaty of Utrecht. His Excellency also states
that "le Traits (of Utrecht) laissait subsister pleinement quant a
la p6che l'6tat de choses anterieur a 1713, c'est-a-dire, 1'etat en
vigueur alors que les Francais exercaient la souverainete territoriale.
La France conservait le droit exclusif de peche puisqu'elle 1'avait
toujours eu," and he further alleges that his " Gouvernement etait done
fonde a croire que le droit de la France sur la c6te de
I'lle de Terre-Neuve reservee a ses pecheurs n'est autre chose qu'une
partie de son ancienne souverainete sur File qu'elle a retenue en
c6dant le sol a PAngleterre, mais qu'elle n'a jamais ni infirme ni
alieneV'
I. — State of Affairs prior to the Treaty of Utrecht.
3. M. Waddington asserts that France retained ("conservait")
the exclusive right of fishing, since she had always had it " (1'avait
toujours eu "). But this cannot be a correct statement, for it appears
that in the reign of King Charles I, and during the Commonwealth,
if not to a later date also, the French were required top&y to England
a tribute or tax of 5 per cent, for the privilege of fishing at New-
foundland, and of drying fish on the shore of the island.
4. He also asserts that the French right of fishing is part of the
ancient sovereignty of France over the island, which sne retained
when ceding the soil to England, but which she has never weakened
or alienated. It is evident that this statement also is inaccurate,
MISCELLANEOUS. 1087
for the history of Newfoundland during the seventeenth century
will be seen to be a record of repeated acts of dominion over the
island exercised by England, who could not have accepted such a
cession without thereby disavowing all her past acts.
5. It may be observed in passing (1) that if the present claim of
exclusive fishing on the ground of ancient French sovereignty be
disposed of, any argument for their exclusive fishing can only be
based upon the terms of the Treaty; and (2) that the terms of that
Treaty must be interpreted with reference to the existence of British
sovereignty.
6. Her Majesty's Government are not aware that France ever
possessed any recognized sovereignty over Newfoundland, and, as
far as can be ascertained, this novel claim on the part of France is
not only untenable in itself, but if inverted would be an accurate
statement of the British rights. In order to dispose of this claim, it
will be convenient to examine the state of things that actually existed
prior to the Treaty of Utrecht.
7. Without going back to the title which England acquired to
Newfoundland by right of prior discovery made by John Cabot in
1497, it may be observed that on the 5th August, 1583, Sir Humphrey
Gilbert, acting under a Commission from the Queen of England,
formally took possession of Newfoundland, on behalf of his Sovereign,
in the presence of various persons, subjects of other nations, who
happened to be there in pursuit of the fishery, and from whom he
exacted tribute in acknowledgment of the Queen's rights.
8. During the interval from 1583 to 1713 England exercised
continued acts of dominion over Newfoundland; grants of land
were made by the Crown to individuals ; settlement was encouraged ;
Courts of Justice were held (the first as early as 1615); Commissions
were issued, and Regulations made for the government of the island,
and of the fishermen resorting to it, as well as of the settlers estab-
lished there; and eventually, in 1698, an Act of Parliament was
passed (10 & 11 Wm. Ill, cap. 25) applying to the whole island,
and the seas, rivers, and dominions thereunto belonging, and islands
adjacent; such Act being principally an enactment by the Imperial
Legislature of the Rules, Regulations, and Constitutions that had
prevailed for some time.
9. The first section of this Act enacted that "no alien or stranger
whatsoever (not residing within the Kingdom of England, the
Dominion of Wales, or town of Berwick-on-Tweed) should at any
time thereafter take any bait or use any sort of trade or fishing
whatsoever in Newfoundland, or in any of the islands or places
above mentioned.
10. The British sovereignty, formally established in 1583, and
duly and effectively exercised afterwards, was also, it appears,
recognized by France. Hatton and Harvey, in their "History of
Newfoundland," p. 38, state that in 1635 the French obtained 'per-
mission from the English to dry fish on the shores of Newfoundland
on payment of a duty of 5 per cent, of the produce, and that in
1675 Charles II was induced to relinquish the duty of 5 per cent.,
which had been paid as an acknowledgment of British sovereignty.
11. Anspach, in his "History of Newfoundland" (second edition,
1827, p. 112) says: "According to 1'Abbe Raynel, France, after
the Agreement made with King Charles I in 1634, sent annually
1088 MISCELLANEOUS.
her fishermen to Newfoundland, where they fished only on the
northern part which they called Le Petit Nora, and on the southern
point, where they had formed a kind of town upon the Bay of Pla-
centia, which united all the conveniences that could be desired for
a successful fishery." He adds at p. 93: "In the year 1675 the
French King prevailed upon Charles II to give up the duty of 5
per cent."
12. It is also stated at paragraph 1666 of the published Calendar
of State Papers, Colonial, America, and West Indies, 1661-68, that
"from the first discovery of Newfoundland in 1496 till the Treaty
of 1632 the French were not permitted to fish at Newfoundland
or in any place on the main in America, but after that Treaty the
French trading to Canada and Acadia presumed to make dry fish
on Newfoundland ; for prevention whereof Sir David Kirke was sent
there Governor, in whose time every French ship trading or making
dry fish there was forced to pay 5 or 10 per cent. ; and in time of the
late rebellion they were compelled to do the like."
13. Further, it is certain that hi 1637, by letters patent dated
13th November of that year, "the whole continent, island, and
region" of Newfoundland was granted in fee to the Marquis of Hamil-
ton, the Earl of Pembroke, the Earl of Holland, and Sir David Kirke,
and "that all other Kings, Princes, and Potentates, their heirs, allies,
and subjects, may know our (the King's) just and undoubted right
and interest in and to the said continent, island, and region of New-
foundland, and in and to all and every the islands, seas, and places
to the same belonging," it was declared that there are to be levied
from all strangers that make use of any rcart of the shore for drying
fish "five fishes out of every hundred fish hi the seas, rivers, or places
aforesaid to be had or taken." The grantees were enjoined to see
to the collection of this tribute, from which British subjects were
exempt, being expressly given "free and ample liberty of fishing."
14. There is, in the published Calendar of State Papers, Domestic,
under date the 16th May, 1639, a letter from Secretary Coke to
Secretary Windebank, stating that the French Ambassador (M.
Pomponne de Bellievre, Seigneur de Grignon) had complained of
an imposition laid on strangers by Sir David Kirke for fishing at
Newfoundland. "A firm but fair answer is to be given, and the im-
positions laid by the French on the English merchants considered
in justification."
15. The folio whig is an extract from this letter of the French
Ambassador, dated the 9th (19th) May, 1639: —
"L'on m'a aussi donne avis que les nommer (sic) Kerg avoient
une patente du Roy de la G. B. pour lever quelque chose sur la
pesche des moriies, ce qu'ils se proposent de prendre non seulement
sur les sujets du Roy de la G. B., mais generalement sur tous ceux
qui irant pour faire cette pesche, ce qui seroit contraire a tout droit
et a la liberte avec laquelle on en a use jusques icy, ce qui fait que
je m'imagine que le Roy de la G. B. ne 1'entend pas amsy et que
personne autre que ses suiets ne se resoudra a le souffrir."
To which letter the following answer was returned, dated New-
castle, 26th (16th) May, 1639:—
" J'ay communique la vostre au Roy mon maistre, et vous en rends
cette gracieuse responce sur chaque point." Then, after referring
to various other matters, the folio whig reply is made to the French
MISCELLANEOUS. 1089
Ambassador's representations on the Fisheries question, quoted
above : —
"Cuant a vostre derniere plainte, faite centre Kerg, pour lever
quelque chose sur les estrangers pour la pesche en Terre Neufve; S. M.
ne scait pas, en particulier, ce qui s'y est passe; c'est pourquoy elle
vous en remet a son Conseil d'Estat demeurants a Londres pour
y faire vostre remonstrance et recevoir la responce. Se promettant
quant & quant de vous une bonne responce sur la plainte que mon
collegue vous aura represented, de la nouvelle leve"e faite en France
sur nos marchans, en contravention des Trait es, & qui semble porter
une intention absplue de rompre ceste bonne intelligence que S. M.
garde toujours soigneusement, & pour la conservation de laquelle
ses Ministres travaillent incessamment."
16. There is no doubt that subsequently, in 1662 (published
Calendar of State Papers, Colonial, 1661-68, paragraphs 1729-32),
shortly after the restoration of the Monarchy in England, the French,
taking advantage of the English Government being fully occupied at
home, proceeded, although the two countries were at peace, to fortify
themselves at Placentia, to drive out the English settlers, and to
issue Commissions to Governors purporting to exercise sovereignty
over the whole of Newfoundland.
17. In 1666 and 1667 the French, who were then at war with
England, strengthened their hold upon Placentia and the neighbour-
ing coasts (Calendar of State Papers, paragraphs 1729-30; and it is
stated by Hatton and Harvey, p. 39, that at one time they had
established their dominion over a territory of 200 miles in extent.
But this episode of the conflict was annulled, so far as any sovereign
rights were involved, by Article XII of the Treaty of Peace concluded
between Great Britain and France at Breda on the 21st July, 1667,
in which the Most Christian King engaged to restore to the King
of Great Britain all the islands, countries, fortresses, and Colonies
which might have been conquered by the arms of the Most Christian
King before or after the signing of that Treaty.
18. As proof of the continued and uninterrupted assertion of
English dominion, it may be pointed out that King Charles II, on
the 12th January, 1661, issued letters patent reciting the letters
patent of 1637, and granting additional powers for regulating the
Newfoundland fishery; and that on the 10th March, 1670, he made
an Order in Council containing additional Regulations for the govern-
ment of the fishery in Newfoundland, of which the 1st Article author-
izes English subjects to fish in all waters, and to dry their fish on
shore hi any part of Newfoundland, as fully and freely as any of the
subjects "of His Majesty's Royal predecessors," ancl of which the
2nd Article declares "That no alien or stranger be permitted to
take bait, or fish in any of the rivers, lakes, creeks, harbours, or
roads in Newfoundland between Cape Race or Cape Bona Vista, or
in any of the islands thereunto adjoining."
19. The French had, it will be seen, forcibly possessed themselves
of parts of the English Island of Newfoundland in time of peace,
which thejT continued to hold, but without permission from England.
In any case, such possession was not considered as implying an
admission of French sovereignty over any portion of the island, for,
on the outbreak of hostilities after the accession of William III, the
King, hi his declaration of war, 7th May, 1689, stated: —
92909°— S. Doc. 870, 61-3, vol 3 30
1090 MISCELLANEOUS.
"It is not long since the French took licences from the English
Governor of Newfoundland to fish in the seas upon that coast, and
paid a tribute for such licences as an acknowledgment of the sole
right of the Crown of England to that island; and yet of late the
encroachments of the French upon our said island, and our subjects'
trade and fishery, have been more like the invasions of an enemy than
becoming friends, who enjoyed the advantages of that trade only by
permission."
20. It is believed that after the Treaty of Ryswick, by which that
war was terminated in 1697, but in which Newfoundland is not named,
while it specifically deals with places in Hudson's Bay which were to
be left in possession of the French, the French retained possession of
Placentia and any other places occupied by French subjects; but
that no acknowledgment of French sovereignty can be inferred from
such circumstance is abundantly proved by the fact that the English
Parliament in the following year, 1698, passed the Act, which has
been before referred to (paragraph 8) , applying to the whole of New-
foundland, and forbidding aliens to fish or trade. It is difficult to
imagine any more formal assertion of the sovereignty of the English
Crown.
II. — Language of the Treaty of Utrecht.
21. The documents cited above effectively dispose of any supposed
admission of French dominion prior to the Treaty of Utrecht. The
language employed in that Treaty will be found to be such as to
confirm the absence of any such previous admission, and, even if any
admission of the kind had been made, to render it absolutely nugatory.
22. It will be found that in the Preliminary Treaty signed at
London on the 8th October, 1711, the VHth Article runs thus:
"L'lle de Terre-Neuve, la Baie et le Detroit de Hudson seront
rendus & 1'Angleterre," thus placing Newfoundland on the same
footing as places where British sovereignty had unquestionably
existed, but which, having been captured by the French, and sub-
sequently recaptured by the English, had again been placed in pos-
session of the French by the Treaty of Ryswick.
23. The language of the Treaty of Utrecht follows the same classi-
fication as the Preliminary Treaty. The Xth Article of the Treaty
simply provides for the restoration to England, to be possessed hi
full right for ever, of the Bay and Straits of Hudson, with all lands,
&c., belonging thereunto, "which are at present possessed by the
subjects of France." While in the XHth Article, however, it is
stipulated that the French King shall deliver solemn 'and authentic
instruments, from which it shall appear "that certain islands and
places which had previously been French," together with the " ' do-
minion,' propriety, and possession" thereof, "and all right what-
soever by Treaties or by anv other way obtained by the Crown of
France or its subjects, are yielded and made over to the Queen of
Great Britain, and in such ample manner and form that the French
shall thereafter be excluded from all kind of fishing on the coast of
Nova Scotia." Thus, British territory previously seized by France,
and left to her by Treaty, is "restored;" while" territory, of which
the previous dominion or France was not disputed, is ceded by the
words, "yielded and (made over," and the cession is to be evidenced
by solemn and authentic instruments.
MISCELLANEOUS. 1091
24. But the Xlllth Article, which treats of Newfoundland, follows
rather the model of the Xth than of the Xllth Article. There is no
question of instruments of transfer, and no mention is made of the
dominion of France in regard to Newfoundland; but only that New-
foundland, with the islands adjacent, "shall from this time forward
belong of right wholly to Britain" (" appartiendra desormais et abso-
lument a la Grande-Bretagne"), and to that end Placentia and what-
ever other places are in possession of the French "shall be yielded
and given up" ("et a cette fin le Roi Tres Chretien fera remettre a
ceux qui se trouverent a ce commis en ce pays la dans 1'espace de
sept mois a compter du jour de 1'echange aes ratifications de ce
Traite ou plus t6t si f aire ce peut, la ville et le fort de Plaisance, et
autres lieux que les Francais pourraifnt encore posseder dans la dite
ile"); and the French King, his successors and subjects, shall not
" lay claim to any right to the said island or islands, or to any part of
it or them" ("sans que le dit Roy Tres Chretien, ses heritiers et suc-
cesseurs, ou quelques-uns de ses sujets, puissent desormais pretendre
quoyque ce soit et en tel temps que ce soit, sur la dite Isle et les Isles
adjacentes en tout ou en partie"). This is the language of with-
drawing a claim, not of ceding the dominion of a territory; the
renunciation of all rights is absolute, and even more emphatic hi the
French ratification than in the English version of the Treaty; and it
may further be noted that this Article proves that the French at
that time only claimed to be in possession of Placentia and other
unnamed places, not of the whole island, of which M. Waddington
now claims that they had the sovereignty.
25. Her Majesty's Government consider that the Xlllth Article
must be read as an admission of the title previously existing in
England, including control of the fishery in territorial waters; so
that when the Article proceeds to deal with fishery by the French,
it employs apt words of concession by the Sovereign Power; "it shall
be allowed to the subjects of France to catch fish, and to dry them on
land, in that part only and in no other besides that," &c. This is
the language of concession on the part of England, not of reservation
on the part of France; and it seems clear that, under the Treaty,
French fishermen only obtained the privilege of fishing side by side
with British subjects, whose right was derived not from Treaty, but
from the British sovereignty, which had then existed for exactly
130 years.
26. This is the natural and common-sense construction of the
Article, while the French contention can only be accepted on the
supposition that the framers of the Treaty, who used precise and
accurate language for the cession effected by the Xllth Article, used
vague and indefinite language for the cession effected by the Xlllth.
But it seems incredible that writers who so carefully excluded the
French from the fisheries of Nova Scotia should not have thought it
necessary to be equally careful (if that had been their meaning) to
exclude the English from fishing on part of the coasts of Newfound-
land, especially as they had previously declared the whole island to
belong of right to England, a declaration which, according to public
law, would necessarily include the territorial waters of the whole.
27. Again, during the negotiations at Utrecht, Spain laid claim to
fish as of right hi the waters of Newfoundland, and the Treaty between
England and Spam contains an express renunciation of such claim.
1092 MISCELLANEOUS.
If the French had really had or retained any sovereignty in those
waters, the renunciation by Spain would more properly have been
f'veii to France instead of to England; and its presence in the
nglish Treaty furnishes additional evidence against the present
claim of France.
28. But it is hi reality unnecessary to go further than the text of
the Article itself. It assured to Great Britain the complete dominion
of Newfoundland, with the adjacent islands, and it would have been
absurd to state that the subjects of the Power possessing the sov-
ereignty of the island should have the right to fish in its territorial
waters. If any such stipulation had been necessary in regard to
fishery, it would have been equally necessary to insert every other
elementary right which sovereignty carries with it. Moreover, the
Article contained a most absolute renunciation for the future of all
rights on the part of France. And, accordingly, in the Treaty of Paris
of 1763 (Article V) the French fishery is spoken of not as & right but
as a liberty: "Les sujets de la France auront la liberte de la p6che et
de la secherie, sur une partie des c6tes de 1'Ile de Terre-Neuve, telle
qu'elle est specifiee par PArticle XIII du TraitS d'Utrecht, lequel
Article est renouvele et confirme par le present Traite, a 1'exception
de ce qui concerne File du Cap Breton, &c."
III. — State of Affairs subsequent to the Treaty of Utrecht.
29. As a matter of fact, there can be no doubt whatever that the
concurrent right of fishery by British and French subjects was exer-
cised in the interval between the Treaty of Utrecht and the negoti-
ations of Versailles, inasmuch as, from 1769 onwards, the method of
its exercise gave rise to frequent complaints on the part of the French
Government. They urged that by permanent fishing establishments
formed by British subjects along the shore the French were practically
ousted from the enjoyment of the liberty conceded to them. It
appears on reference to the discussions which took place on this sub-
ject in 1776 (at a time when the British Government were particu-
larly anxious not to give France any unnecessary cause of offence),
that after M. de Gumes, the French Ambassador in London, had
made a proposal for exclusive rights of fishery which the British
Government had felt compelled to reject, Lord Stormont, then Brit-
ish Ambassador at Paris, was instructed to treat the matter with the
Comte de Vergennes. The latter, in the conversations which followed,
frankly admitted that the Treaty of Utrecht gave to Great Britain
the full sovereignty over the island : he said that to contend that the
Treaty gave to France an exclusive right of fishery would be to put on
it a strained construction ; but he laid down the principle that Treaty
stipulations should be liberally interpreted, and that the rights of
fishery conceded to the French on certain portions of the shore should
not be annulled in practice by prior occupation on the part of British
fishermen.
30. The English Ambassador, on his side, explained that it was
impossible for his Government to order the removal of the sedentary
British establishments (to which, however, they were in principle as
much opposed as the French), because these had existed prior to the
Treaty of Utrecht, as appeared by a Charter granted by the English
Crown in 1610. He pointed out that the French system of bounties,
MISCELLANEOUS. 1093
which gave their fishermen a favoured position as compared with the
British, lay at the root of most of the trouble that had arisen. At the
same time, he communicated a copy of fresh Royal instructions to the
Governor of the Colony "to use his utmost vigilance and authority
to prevent our subjects from taking any exclusive possession what-
ever, as private propertv, ol any lands, rivers, or islands in the north-
ern parts of Newfoundland between Bonavista and Point Riche, or
from making any settlements or forming any establishments there,
which may in any degree have the consequence to prejudice the fish-
eries of the subjects of France, .... or to render ineffectual
the instructions that ships of both nations should choose their stations
as they respectively arrive."
These instructions were accepted by the Comte de Vergennes as
satisfactory.
IV. — Negotiations of Versailles, 1782.
31. It would seem, further, that the reference by M. Waddington to
the negotiations of 1782 is inaccurate. His Excellency states: "Les
ne'gociateurs Anglais firent appel aux sentiments de
moderation de la Cour de Versailles, et sans obtenir rienqui ressemblat
a un droit concurrent, obtinrent que la France renoncerait a la partie
des cotes envahies et accepterait en dedommagement une etendue
equivalents de territoire riverain & exploiter," &c.
32. Tnis statement of the case is not in any way borne out by the
text of the communications which passed. The first formal proposal
came from M. de Vergennes in a note dated the 6th October, 1782, and
runs as follows :
"La concurrence entre les pecheurs Francais et Anglais aiant etc"
une source intarissable de discussions et de querelles, le Roi pense que
le moyen le plus sur de les prevenir est de separer les pe*cheries respec-
tives: en consequence Sa Majeste consent a se desister du droit de
p6che qui lui est acquis en vertu de 1' Article XIII du Traite d 'Utrecht,
depuis le Cap de Bona Vista jusqu'au Cap Saint-Jean, a condition que
ses sujets pecheront seuls a 1'exclusion des Anglais, depuis le Cap
Saint-Jean en passant par le nord et le Cap Ray, &c."
33. The English Government, in a note dated the 24th October,
declined to concede this exclusive right.
34. They objected to an Article in the Preliminaries of Peace which,
without actually mentioning an exclusive right of fishery, was
explained as intended to establish that right, and they only agreed to
the insertion of an Article in the following words:
Article V. "Les Pescheurs Francois jouiront de la pesche qui leur
est assignee par 1'Article precedent, comme ils ont droit d'en jouir en
vertu du Traite d 'Utrecht."
35. At the same time, however, Mr. Fitzherbert, the British
Plenipotentiary, delivered to the French Government a note in the
terms of the eventual Declaration of the 3rd September, 1783, promis-
ing that His Britannic Majesty would take the most positive measures
"pour prevenir que ses sujets ne troublent en aucune maniere la
peche des Francois pendant 1'exercice temporaire qui leur est accord 6
sur le« rdtes de 1'Ile de Terre-Neuve."
36 The words "par leur concurrence" were subsequently added to
this Declaration, at the instance of M. de Vergennes, in the course of
the negotiations for the Definitive Treaty of Peace.
1094 MISCELLANEOUS.
37. On the 18th June, 1783, the British Ambassador sent home the
draft of the French Counter-Declaration, which contained these
words: "Quant a la pe"che exclusive sur les cotes de Terre-Neuve qui
a e'te' 1'objet des nouveaux arrangements dont les deux Souverains
sont convenus sur cette matidre elle est sufFisamment exprimee par
1'Article du Traite de Paix signe" aujourd'hui, et par la Declaration
remise egalement ce jourd'hui par I'Ambassadeur et P16nipotentiaire
de Sa Majest6 Britannique, et Sa Majeste declare qu'elle est pleine-
ment satisfaite a cet e"gard."
38. The Duke of Manchester was thereupon instructed, if he could
not obtain the omission of the word "exclusive" to make another
Declaration upon the French Counter-Declaration, protesting that
the King of England did not mean to grant exclusive fishery any other-
wise than by ordering his subjects not to molest by concun^ence, &c.
39. The Duke reported that the French Minister had bee > per-
suaded to omit the word "exclusive" in the Counter-Declaration,
which would render another Declaration from the British Plenipo-
tentiary unnecessary.
V.— Negotiations of 1801-02.
40. M. Waddington alludes to a proposal made by the Cabinet of
Paris in 1802, that the exclusive rights of France should be estab-
lished by a modification of Article XIII of the Treaty of Utrecht, and
states that "Le Ministre Fox avoua qu'il ne reconnaissait pas 1'oppor-
tunite' de recourir a cet amendement, et qu'il suffisait de revenir pure-
ment et simplement au texte de 1783, qui confirmait dans toute leur
forse les droits d'Utrecht, le Gouvernement Britannique n'ayant
jamais mis en doute le droit d'exclusivite" de peche en notre favour."
41. There must obviously be some mistake about this, for Mr. Fox
was not at the time in office. Mr. Addington was Prime Minister, and
Lord Hawkesbury was Foreign Secretary. The Preliminaries of
Peace were agreed upon in London between Lord Hawkesbury and
M. Otto, and the negotiations for the Definitive Treaty were conducted
at first at Paris, and subsequently at Amiens, between Lord Cornwallis
and M. Joseph Buonaparte.
42. On the 26th November, 1801, Lord Cornwallis reported that on
the Xlllth Article of the Preliminaries of Peace, "M. Buonaparte
observed that they wished for some adjustment about the fisheries, to
which I replied that I was not sufficiently conversant in that business
to enter into particulars, and could only at present say that it was a
matter in which the British Government must act with the utmost
caution, as any improvident cession in that Article would create a
most violent clamour, and be attended with very disagreeable
consequences."
43. In the instructions sent to Lord Cornwallis in reply, Lord
Hawkesbury observed: "With regard to what Joseph Buonaparte
stated to your Lordship on the subject of the fisheries on the Banks of
Newfoundland and in the Gulf of St. Lawrence, I have to inform you
that, from the representations of the different bodies interested in
those fisheries, it appears to be scarcely possible to make any new
concessions to France in this respect which could be considered as real
benefits to that Power, and which would not be injurious to the inter-
ests of His Majesty's subjects who are engaged in this branch of com-
MISCELLANEOUS. 1095
merce; and, indeed, Article XIII provides merely for the re-establish-
ment of the fisheries on the footing on which they were previously to
the commencement of the war, and appears to have no reference to any
further arrangement than to such as, without altering the relative
situation of the two parties, might contribute to the maintenance of
peace in the fisheries as they now exist."
44. A proposal made subsequently by the French Plenipotentiary at
Amiens for the cession of a portion of Newfoundland in full sovereignty
to France was positively refused by the British Government; and on
the 13th February, 1802, Lord Cornwallis states in a private letter to
Lord Hawkesbury: "The French Plenipotentiary seems determined
to press for some further indulgences at Newfoundland, but I am too
well apprised of the importance of those fisheries to make the smallest
concessions without His Majesty's commands, and I have taken pains
to discourage M. J. Buonaparte from entertaining any hopes that our
Government can give way on that point."
VI. — Subsequent Discussions.
45. Lord Palmerston's note of the 10th July, 1838, to Comte
Sebastiani, which is quoted in M. Waddin^ton's note, distinctly
denies the right of the French to an exclusive fishery under any
Treaty engagement or documentary undertaking. His language is
very clear on this point, and he shows that the Proclamations issued
warning British subjects to leave the coast were so issued, not to pre-
vent British fishermen from fishing, but in consequence of interiup-
tions having been caused to French fishermen, and to prevent such
interruptions.
46. The views expressed in Lord Salisbury's note to M. Waddington
of the 24th August, 1887, are in accord with the general principles laid
down in that note, and with the position constantly maintained by
Her Majesty's Government, that the French have not an exclusive
right of fishery under the Treaty engagements, and that the British
have never given up their right to a concurrent fishery, although in
exercising this right they are not to interrupt the French fishermen.
47. It is difficult to understand how it can be supposed that such
a contention has now been advanced for the first time, whereas it
has formed the basis of all action and argument on the part of Her
Majesty's Government for the last 120 years. The first Law Officers'
opinion, of the 30th May, 1835, quoted in M. Waddington's note,
was, as his Excellency observes, modified on further consideration
and on their being supplied with more detailed information. It was,
in fact, given on a partial and defective statement of the case. The
second Keport, of the 13th April, 1837, which his Excellency also
quotes, stated distinctly that, "if there were really good room within
the limits of the district in question for the fishermen of both nations
to fish without interfering with each other, then we do not think
that this country would be bound to prevent her subjects from fish-
ing there." It went on to say that "it appears from the Report of
Admiral Sir H. P. Halkett that this is hardly practicable."
48. The same consideration is made of the ground of the argument
used in Mr. Labouchere's despatch of the 16th January, 1857, that
whether the rights of the French were in strict logic exclusive or not,
they were so in practice. But this would be a question of fact, and
1096 MISCELLANEOUS.
it must be remembered that Mr. Labouchere's despatch was written
with the object of recommending to the acceptance of the Colony
the Convention of 1857 for the settlement of the question. It wa9
impossible for him to adopt the view now advanced in M. Wad-
dington's note, that the 1st Article of the Convention was no more
than a formal recognition of the ancient French rights. He did not
deny — what was, in fact, unquestionable — that the Convention was
an alteration of existing arrangements; but he sought to prove that
the interests of the Colony would not in reality suffer by it. It was
not, therefore, his purpose to define the strict rights of the British
fishermen, so much as their practical position at the time: the
tenour of his argument was that that position would not be injuriously
affected by the Convention, and the language of his despatch is cer-
tainly not in all respects precise.
49. Such as the argument was, it undoubtedly did not recommend
itself to the Colonial Legislature, which unanimously and unhesi-
tatingly rejected the Arrangement. Whether that decision was
wise or unwise is a question foreign to the present argument. But
the mere fact that British fishermen have now for many years past
fished in the waters on the west and north-east coasts of Newfound-
land, without giving cause for complaint on the part of French
fishermen, except in occasional instances, is to Her Majesty's Gov-
ernment evidence that there is room for the fishermen of both
countries if proper precautions are taken. The arrangement has no
doubt its inconveniences, but that it is possible is proved by the
fact that it exists, and that, on the whole, the disputes which arise
between the fishermen of the two countries are not considerable
nor numerous.
FOREIGN OFFICE, July 9, 1889.
[Annex.]
Viscount Palmerston to Count Sebastiani.
[Extract.]
Foreign Office, July 10, 1838.
I NOW proceed to answer that part of your Excellency's note
which relates to the conflicting opinions that are entertained as to
the true interpretation of the Declaration annexed to the Treaty of
the 3rd September, 1783, and in which your Excellency urges the
British Government to disavow the claim of British subjects to a
right of fishery upon the coast in question concurrent with the right
of the subjects or France.
And in the first place I beg to observe that it does not appear to
the British Government that either your Excellency's representation
or that of your predecessor has shown that any specific grievance
has been sustained by French subjects in consequence of the doubts
which are said to be entertained upon this question, so as to prove
that there is any pressing necessity for the call which the French
Government makes in this respect upon that of Great Britain.
But the British Government is nevertheless willing to enter into
an amicable examination of the matter, with a view to set those
doubts at rest, although it is my duty to say that the British Gov-
MISCELLANEOUS. 1097
eminent are not prepared, according to the view which they at
jHvsi'iii tnLo of the matter, to concede the point in question.
The right of fishing on the coast of Newfoundland was assigned
to French subjects by the King of Great Britain in the Treaty of
Peace in 1783, to be enjoyed by them, "as they had the right to
enjoy that which was assigned to them by the Treaty of Utrecht."
But the right assigned to French subjects by the Treaty of Utrecht
was "to catch fish and to dry them on land," within the district
described in the said Treaty, subject to the condition not to "erect
any buildings" upon the island "besides stages made of boards and
huts necessary and usual for drying of fish," and not to "resort to
the said island beyond the time necessary for fishing or drying of fish."
A Declaration annexed to the Treaty of 1783, by which the right
assigned to French subjects was renewed, contains an engagement
that "in order that the fishermen of the two nations may not give a
cause for daily quarrels, His Britannic Majesty would take the most
positive measures for preventing his subjects from interrupting in
any manner by their competition the fishery of the French during
the temporary exercise of it which was granted to them;" and that
His Majesty would "for this purpose cause the fixed settlements
which should be found there to be removed."
A Counter-Declaration stated that the King of France was satis-
fied with the arrangement concluded in the above terms.
The Treaty of Peace of 1814 declares that the French right "of
fishery at Newfoundland is replaced upon the footing upon which
it stood in 1792."
In order, therefore, to come to a right understanding of the ques-
tion, it will be necessary to consider it with reference to historical
facts, as well as with reference to the letter of the Declaration of
1783; and to ascertain what was the precise footing upon which the
French fishery actually stood in 1792.
Now it is evident that specific evidence would be necessary in
order to show that the construction which the French Government
now desire to put upon the Declaration of 1783 is the interpretation
which was given to that Declaration at the period when the Decla-
ration was framed, and when the real intention of the parties must
have been best known. It would be requisite for this purpose to
prove that, upon the conclusion of the Treaty of 1783, French sub-
jects actually entered upon the enjoyment of an exclusive right to
catch fish in the waters off the coast in question; and that they
were in the acknowledged enjoyment of the exercise of that right
at the commencement of the war in 1792. But no evidence to such
effect has yet been produced. It is not, indeed, asserted by your
Excellency, nor was it contended by Prince Talleyrand in his note
of 1831, to which your Excellency specially refers, that French
subjects were, at the breaking out of the war in 1792, in the enjoy-
ment of such an exclusive right. And, moreover, it does not appear
that such right was claimed by France or admitted by England at
the termination of the war in 1801 or at the Peace of 1814.
It is true that the privilege secured to the fishermen of France by
the Treaty and Declaration of 1783, a privilege which consists in the
periodical use of a part of the shore of Newfoundland for the purpose
of drying their fish, has, in practice, been treated by the British
Government as an exclusive right during the period of the fishing
1098 MISCELLANEOUS.
season, and within the prescribed limits; because, from the nature
of the case, it would scarcely be possible for British fishermen to dry
their fish upon the same part of the shore with the French fishermen,
without interfering with the temporary establishments of the French
for the same purpose, and without interrupting their operations.
But the British Government has never understood the Declaration
to have had for its object to deprive British subjects of the right to
participate with fhe French in taking fish at sea off that shore,
provided they di so without interrupting the French cod fishery.
And although, in accordance with the true spirit of the Treaty and
Declaration of 1783, prohibitory Proclamations have from time to
time been issued, on occasions when it has been found that British
subjects, while fishing within the limits in question, have caused
interruption to the French fishery, yet in none of the public docu-
ments of the British Government — neither in the Act of Parliament
of 1788, passed for the express purpose of carrying the Treaty of
1783 into effect, nor in any subsequent Act of Parliament relating
to the Newfoundland fishery, nor in any of the instructions issued
by the Admiralty or by the Colonial Office, nor in any Proclamation
which has come under my view, issued by the Governor of New-
foundland or by the British Admiral upon the station— does it appear
that the right of French subjects to an exclusive fishery, either of
codfish or of fish generally, is specifically recognized.
In addition to the facts above stated, I will observe to your Excel-
lency, in conclusion, that if the right conceded to the French by the
Declaration of 1783 had been intended to be exclusive within the
prescribed district, the terms used for defining such right would
assuredly have been more ample and specific than they are found
to be in that document. For in no other similar instrument which
has ever come under the knowledge of the British Government is
so important a concession as an exclusive privilege of this description
announced in terms so loose and indefinite.
Exclusive rights are privileges which, from the very nature of
things, are likely to be injurious to parties who are thereby debarred
from some exercise of industry in which they would otherwise engage.
Such rights are therefore certain to be at some time or other disputed,
if there is any maintainable ground for contesting them; and for
these reasons, when negotiators have intended to grant exclusive
rights, it has been their invariable practice to convey such rights
in direct, unqualified, and comprehensive terms, so as to prevent
the possibility of future dispute or doubt.
In the present case, however, such forms of expression are entirely
wanting, and the claim put forward on the part of France is founded
simply upon inference, and upon an assumed interpretation of words.
MISCELLANEOUS. 1099
Decision in the case of the White Fawn.
In the Court of Vice Admiralty.
Judgment of his honor Judge Hazen in the case of the " White
Fawn."
The following is a copy of the decision recently pronounced by his
honor Judge Hazen in this case:
At the last sitting of this court Mr. Tuck, B. C., proctor for the
Crown, applied, on behalf of Sir John A. McDonald, the attorney-
general of the Dominion, for a monition, calling upon the owners of
the schooner and her cargo to show cause why the White Fawn and
the articles above enumerated, with her tackle, etc., should not be con-
sidered as forfeited to the Crown for a violation of the Imperial
Statute 59, George III, cap. 38, and the Dominion Statutes, 31 Vic.,
cap. 61, and 33 Vic., cap 15.
The White Fawn, as it appears from her papers, was a new vessel
of 64 tons, and registered at Gloucester, Massachusetts, in 1870, and
owned in equal shares by Messrs. Somes, Friend, and Smith, of that
place ;
That she was duly licensed for one year, to be emploved in the
coasting trade and fisheries, under the laws of the United States ;
That by her " fishery shipping paper," signed by the master and
ten men, the usual agreement was entered into for pursuing the cod
and other fisheries, with minute provisions for the division of the
profits among the owners, skipper, and crew. These papers and
other documents found on board are all in perfect order, and not the
slightest suspicion can be thrown upon them. The seamen's articles
are dated 19th November, 1870. On the 24th Nov., 1870, she arrived
at Head Harbor, a small bay in the eastern end of Campobello, in the
county of Charlotte, in this Province.
Captain Betts, a fishery officer, in command of the Water Lily, a
vessel in the service of the Dominion, states that on the 25th Novem-
ber he was lying with his vessel at Head Harbor. Several other ves-
sels, and among them the White Fawn, were lying in the harbor; that
he went on board the White Fawn. He states a number of particu-
lars respecting the vessel from her papers, and adds that the said ves-
sel, White Fawn, had arrived at Head Harbor on the 24th Nov., and
had been engaged purchasing fresh herrings, to be used as bait in
trawl fishing; that there were on board about 5,000 herrings, which
had been obtained and taken on board at Head Harbor; also 15 tons
of ice, and all the materials and appliances for trawl fishing; and
that the master admitted to him that the herring had been obtained
at Head Harbor by him for the purpose of being used as bait for
fishing. There are then some remarks as to the master being de-
ceived as to the fact of the cutter being in the neighborhood, which
are not material ; and that deponent further understood that persons
had been employed at Head Harbor to catch the herring for him;
that he seized the schooner on the 2th (sic), and arrived with her the
same evening at St. John, and delivered her on the next day to the
collector of the customs.
No reason is given for the delay which has taken place of more than
two months in proceeding against the vessel, which was seized, as
1100 MISCELLANEOUS.
alleged by Captain Betts, for a violation of the terms of the conven-
tion and the laws of Canada ; her voyage was broken up and her crew
dispersed at the time of the seizure.
By the Imperial Statute 59, George III, cap. 38, it is declared that
if any foreign vessel, or person on board thereof, " shall be found to
be fishing, or to have been fishing, or preparing to fish within such
distance (three marine miles) of the coast, such vessel and cargo
shall be forfeited."
The Dominion Statutes, 31 Vic., cap. 61, as amended by 33 Vic.,
cap. 15, enacts : " If such foreign vessel is found fishing, or pre-
paring to fish, or to have been fishing in British waters, within three
marine miles of the coast, such vessel, her tackle, etc., and cargo shall
be forfeited."
The White Fawn was a foreign vessel in British waters; in fact,
within one of the counties of this Province when she was seized. It
is not alleged that she is subject to forfeiture for having entered
Head Harbor for other purposes than shelter or obtaining wood
and water. Under Section III of the imperial act no forfeiture but
a penalty can be inflicted for such entry. Nor is it alleged that
she committed any infraction of the customs or revenue laws. It
is not stated that she had fished within the prescribed limits, or
had been found fishing, but that. she was "preparing to fish," hav-
ing bought bait (an article no doubt very material if not necessary
for successful fishing) from the inhabitants of Campobello. As-
suming that the fact of such purchase establishes a " preparing to
fish " under the statutes (which I do not admit) , I think, before a
forfeiture could be incurred, it must be shown that the preparations
were for an illegal fishing in British waters; hence, for aught which
appears, the intention of the master may have been to prosecuting
his fishing outside of the three-mile limit, in conformity with the
statutes; and it is not for the court to impute fraud or an intention
to infringe the provisions of our statutes to any person, British or
foreign, in the absence of evidence of such fraud. He had a right,
in common with all other persons, to pass with his vessel through
the three miles from our coast to the fishing grounds outside, which
he might lawfully use, and, as I have already stated, there is no
evidence of any intention to fish before he reached such grounds.
The construction sought to be put upon the statutes by the Crown
officers would appear to be thus: "A foreign vessel, being in British
waters and purchasing from a British subject any article which may
be used in prosecuting the fisheries, without its being shown that such
article is to be used in illegal fishing in British waters, is liable to
forfeiture as preparing to fish in British waters."
I cannot adopt such a construction. I think it harsh and unrea-
sonable and not warranted by the words of the statutes. It would
subject a foreign vessel, which might be of great value, as in the
present case, to forfeiture, with her cargo and outfits, for purchas-
ing (while she was pursuing her voyage in British waters, as she
lawfully might do, within three miles of our coast) of a British sub-
ject any article, however small in value (a cod-line or net, for in-
stance), without its being shown that there was an intention of us-
ing such article in illegal fishing in British waters before she reached
the fishing ground to which she might legally resort for fishing under
the terms of the statutes.
MISCELLANEOUS. 1101
I construe the statutes simply thus: If a foreign vessel is found
(1st) having taken fish; (2nd) fishing, although no fish have been
taken; (3rd) "preparing to fish," i. e., with her crew arranging her
nets, lines, and fishing tackle for fishing, though not actually applied
to fishing, in British waters, in either of those cases specified in the
statutes the forfeiture attaches.
I think the words " preparing to fish " were introduced for the
purpose of preventing the escape of a foreign vessel which, though
with intent of illegal fishing in British waters, had not taken fish
or engaged in fishing by setting nets and lines, but was seized in the
very act of putting out her lines, nets, etc., into the water, and so
preparing to fish. Without these a vessel so situated would escape
seizure, inasmuch as the crew had neither caught fish nor been found
fishing.
Taking this view of the statutes, I am of the opinion that the facts
disclosed by the affidavits do not furnish legal ground for the seizure
of the American schooner White Fawn by Captain Betts, the com-
mander of the Dominion vessel Water Lily, and do not make out a
prima facie case for condemnation in this court of the schooner, her
tackle, £c., and cargo.
I may add that as the construction I have put upon the statute
differs from that adopted by the crown officers of the Dominion, it
is satisfactory to know that the judgment of the supreme court may
be obtained by information filed there, as the Imperial Act 59 George
III, cap. 38, gave concurrent jurisdiction to that court in cases of
this nature.
OPINION OF UPHAM, UNITED STATES COMMISSIONER, IN CASE
OF SCHOONER "WASHINGTON."
UPHAM, United States Commissioner:
In 1843 the fishing schooner Washington was seized by her Britan-
nic Majesty's cruiser, when fishing, broad, as it is termed, in what is
called the Bay of Fundy, ten miles from the shore.
This seizure was justified on two grounds:
1. That the Bay of Fundy was an indentation of the sea, extending
up into the land, both shores of which belonged to Great Britain,
and that for this reason she had, by virtue of the law of nations, the
exclusive jurisdiction over this sheet of water and the sole right of
taking fish within it.
2. It was contended that, by a fair construction of the treaty of
October 20, 1818, between Great Britain and the United States, the
United States had renounced the liberty, heretofore enjoyed or
claimed, to take fish on certain bays, creeks, or harbors, including, as
was contended, the Bay of Fundy, and other similar waters within
certain limits described by the treaty.
The article containing this renunciation has various other pro-
visions, supposed to throw some light on the clause of renunciation
referred to. I therefore quote it entire, which is as follows:
"Whereas differences have arisen respecting the liberty claimed by
the United States to take, dry, and cure fish on certain coasts, bays,
harbors, and creeks of His Britannic Majesty's dominions in America,
it is agreed that the inhabitants of the United States shall have, in
1102 MISCELLANEOUS.
common with the subjects of His Britannic Majesty, the liberty to
take fish on certain portions of the southern, western, and northern
coast of Newfoundland, and also on the coasts, lays, harbors, and
creeks from Mount Joly on the southern coast of Labrador, to and
through the Straits of Belle Isle, and thence northwardly indefinitely
along the coast; and that the American fishermen shall have liberty
to dry and cure fish in any of the unsettled lays, harbors, and creeks
of said described coasts, until the same become settled. And the
United States renounce the liberty heretofore enjoyed or claimed by
the inhabitants thereof, to take, dry, or cure fish on or within three
marine miles of any of the coasts, lays, creeks, or harbors of His
Britannic Majesty's dominions in America, not included within the
above mentioned limits; provided, however, that the American fish-
ermen shall be admitted to enter such lays or harbors for the purpose
of shelter, and of repairing damages therein, of purchasing wood,
and of oltaining water, and for no other purpose whatever. But
they shall be under such restrictions as may be necessary to prevent
their taking, drying, or curing fish therein, or in any other manner
whatever abusing the privileges hereby reserved to them."
The first ground that has been taken in the argument of this case
is that, independent of this treaty, Great Britain had the exclusive
jurisdiction over the Bay of Fundy as part of her own dominions, by
the law of nations. As this matter, however, is settled by the treaty,
the position seems to have no bearing on the case, except as it may
tend to show that the United States would be more likely to renounce
the right of fishing within limits thus secured to Great Britain by
the law of nations than if she had no such claim to jurisdiction.
But on this point we are wholly at issue. The law of nations does
not, as I believe, give exclusive jurisdiction over any such large arms
of the ocean.
Rights over the ocean were originally common to all nations, and
they can be relinquished only by common consent. For certain pur-
poses of protection and proper supervision and collection of revenue
the dominion of the land has been extended over small enclosed arms
of the ocean and portions of the open sea immediately contiguous
to the shores. But beyond this, unless it has been expressly relin-
quished by treaty or other manifest assent, the original right of
nations still exists of free navigation of the ocean, and a free right
of each nation to avail itself of its common stores of wealth or sub-
sistence. (Grotius, Book 2, ch. 2, sec. 3; Vattel, Book 1, ch. 20, sees.
282 and '3.)
Reference has been made to the Chesapeake and Delaware bays,
over which the United States have claimed jurisdiction, as cases
militating with this view ; but those bays are the natural outlets and
enlargements of large rivers and are shut in by projecting headlands,
leaving the entrance to the bays of such narrow capacity as to admit
of their being commanded by forts, and they are wholly different in
character from such a mass of the ocean water as the Bay of Fundy.
There is no principle of the law of nations that countenances the
exclusive right of any nation in such an arm of the sea. Claims, in
some instances, have been made of such rights, but they have been
seldom enforced or acceded to.
MISCELLANEOUS. 1103
This is well known to be the prevailing doctrine on the subject in
America, and it would have been surprising if the United States
negotiators had relinquished, voluntarily, the large portions of the
ocean now claimed by Great Britain as her exclusive right, under the
provisions of this treaty, on the ground that it was sanctioned by
the law of nations.
It would have been still more surprising if it had been thus re-
linquished, after its long enjoyment by the inhabitants of America
in common, from the time of their first settlement down to the Revolu-
tion, and from that time by the United States and British provinces,
from the treaty of 1783 to that of 1818.
I see, therefore, no argument, in the view which has been suggested,
to sustain the right of exclusive jurisdiction claimed by England.
2. I come now to the consideration of the second point taken in the
argument before us, which is, that by the treaty of 1818 the United
States renounced the right of taking fish within the limits now in
controversy. This depends on the construction to be given to the
article of the treaty which I have already cited.
In the construction of a treaty, admitting of controversy on account
of its supposed ambiguity or uncertainty, there are various aids we
may avail ourselves of in determining its interpretation.
" It is an established rule," says Chancellor Kent, " in the exposi-
tion of statutes," and the same rule, I may add, applies to treaties,
" that the intention of the lawgiver is to be deduced from a view of
the whole and of every part of a statute, taken and compared
together, and the real intention, when accurately ascertained, will
always prevail over the literal sense of the terms."
He further says, " When the words are not explicit, the intention
is to be collected from the occasion and necessity of the law, from
the mischief felt, and the remedy in view ; and the intention is to be
taken or presumed according to what is consonant to reason and
good discretion." (1 Kent's Com., 462.)
Now, there are various circumstances to be considered in connexion
with the treaty that will aid us in coming to a correct conclusion as to
its intent and meaning.
These circumstances are the entire history of the fisheries ; the views
expressed by the negotiators of the treaty of 1818, as to the object
to be effected by it ; the subsequent practical construction of the treaty
for many years; the construction given to a similar article in the
treaty of 1783; the evident meaning to be gained from the whole
article taken together ; and from the term " coasts " as used in the
treaty of 1818 and other treaties in reference to this subject. All
these combine, as I believe, to sustain the construction of the pro-
visions of the treaty as contended for by the United States.
It will not be contested that the inhabitants of the territory now
included within the United States, as a matter of history, have had
generally the common and undisturbed right of fishery, as now
claimed by them, from the first settlement of the continent down to
the time of the Revolution and that it was subsequently enjoyed in
the same manner, in common by the United States and the British
provinces, from the treaty of 1783 down to the treaty of 1818.
This right was based originally on what Dr. Paley well regards, in
his discussion of this subject, " as a general right of mankind ; "
and the long and undisturbed enjoyment of it furnishes just ground
1104 MISCELLANEOUS.
for the belief that the United States negotiators would be slow in
relinquishing it. They certainly would not be likely to relinquish
more than was asked for, or what the United States negotiators a
few years before contended was held by the same tenure as the
national independence of the United States, and by a perpetual
right.
In the negotiation of the treaty of peace of 1814 no provision
was inserted as to the fisheries. Messrs. Adams and Gallatin notified
the British commissioners that " the United States claimed to hold
the right of the fisheries by the same tenure as she held her inde-
pendence; that it was a perpetual right appurtenant to her as a
nation, and that no new stipulation was necessary to secure it."
The negotiators on the part of the British Government did not
answer this declaration or contest the validity of the ground taken.
Afterwards, in 1815, the consultations had between Lord Bathurst
and Mr. Adams, the then Secretary of State, relative to the fisheries,
show on what grounds negotiations were proposed, which were per-
fected by the treaty of 1818 ; and that the renunciation desired, from
the treaty of 1783, consisted of the shore or boat fisheries, which are
prosecuted within a marine league of the shore, and of no others.
At the first interview of the commissioners Lord Bathurst used
this distinct and emphatic language: "As, on the one hand, Great
Britain cannot permit the vessels of the United States to fish within
the creeks and close upon the shores of the British territories, so, on
the other hand, it is by no means her intention to interrupt them in
fishing anywhere in the open sea, or without the territorial jurisdic-
tion, a marine league from the shore."
Again he said on a subsequent occasion : " It is not of fair competi-
tion that His Majesty's Government has reason to complain, but of
the preoccupation of British harbors and creeks.'''' (Sabine's Report
on Fisheries, p. 282.)
It is clear that it was only within these narrow limits the British
Government designed to restrict the fisheries by the citizens of the
United States.
The views of Messrs. Gallatin and Rush, the American negotia-
tors of the treaty of 1818, appear from their communication made to
the Secretary of State, Mr. Adams, immediately after the signature
of the treaty.
In this communication they say : " The renunciation in the treaty
expressly states that it is to extend only to the distance of three miles
from the coast; and this point was the more important, as, with the
exception of the fisheries in open boats in certain harbors, it appeared
that the fishing ground on the whole coast of Nova Scotia was more
than three miles from the shore."
It thus appears that the negotiators of both Governments con-
curred, at the time of making the treaty, in giving to it the intent
and meaning now contended for by the United States.
It further appears that such was the intent and effect of the treaty
of 1818 from the fact that the construction practically given to it for
more than twenty years, and indeed down to the year 1842, conformed
to the views of the negotiators as thus expressed. (See Sabine's Re-
port, p. 294.)
There are certain circumstances also appearing in the case which
show the evident reluctance of the British Government to assert the
MISCELLANEOUS. 1105
exclusive pretensions ultimately put forth by them, and that they had
been goaded to it against their better sense, as to the construction of
the treaty, by jealousies and laws of the colonists of a very unusual
character, and which Great Britain was slow to sanction. And
when she ultimately concluded to assert this claim, she tendered with
it propositions for new negotiations, by which all matters connected
with the colonies should be amicably adjusted.
I shall now consider the construction given to similar words of
the treaty of 1783.
It will not be denied that the words used in the treaty of 1783
and the treaty of 1818, where they are identical and where express
reference is made to the provisions of the former treaty, mean the
same thing. When the United States are said, in the treaty of 1818,
to renounce the liberty heretofore enjoyed and claimed, it means the
liberty heretofore enjoyed under the treaty of 1783; and the liberty
then enjoyed was to take fish " on certain bays and creeks" without
any limitations as to distance from them.
Now, what were those bays and creeks on which — that is, along the
line of which, drawn from headland to headland, the citizens of the
United States were allowed to take fish under the treaty of 1783 ? It
cannot be pretended that the bays and creeks there intended were
any other than small indentations from the great arms of the sea.
They certainly did not include the Bay of Fundy and other large
waters. Because, if fishing was allowed merely on that bay, as is
now contended — that is, on and along the line of the bay from head-
land to headland — then all fishing within the Bay of Fundy would
be excluded. But it is a well-known fact that the suggestion never
was made, or a surmise raised, that the expressions used in the treaty
of 1783 permitted the fishermen of the United States to go merely
to the line of the Bay of Fundy, and restricted them from fishing
within it.
A practice, therefore, for thirty-five years under this treaty of 1783
had determined what classes of bays and creeks were meant by the
expressions there used.
The treaty of 1818 renounced the liberty heretofore enjoyed of
fishing on these identical bays and creeks — that is, immediately on
the line of them — and also further renounced the liberty of fishing
within a space of three miles of them; but the bays and creeks here
referred to were the same as those referred to in the treaty of 1783,
and neither of them ever included the Bay of Fundy.
The express connection between these two treaties is apparent from
the face of them. Reference is made to the treaty of 1783 in a man-
ner that cannot be mistaken ; the subject-matter is the same, and the
language as to the point in question identical.
I contend, therefore, that the governments in adopting the lan-
guage of the treaty of 1783, in the treaty of 1818, received the words
with the construction and application given to them up to that time,
and that neither party can now deny such construction and applica-
tion, but is irrevocably bound by it.
There are other portions of the article in question that aid in giving
a construction to the clause under consideration, and that irresistibly
sustain the view I have adopted.
Thus it is provided, in another portion of the same article in refer-
ence to these same creeks and bays, that the fishermen of the United
92909°— S. Doc. 870, 61-3, vol 3 31
1106 MISCELLANEOUS.
States shall be admitted to enter " such lays," for the purpose of
shelter and to obtain wood and water; thus clearly implying that
such bays are small indentations extending into the land to which
fishing craft would naturally resort for shelter and to obtain wood
and water, and not large, open seas like the Bay of Fundy.
There are numerous bays of this character, along the coast, within
the Bay of Fundy, such as the Bay of Passamaquoddy, Annapolis,
St. Mary's, Chignecto, Mines Bay, and other well-known bays extend-
ing up into the land.
There is a further argument to sustain the American construction
given to the treaty derived from the meaning affixed to the term
"coasts" as applied by the usage of the country, and which was
adopted and embodied in the various treaties between France and
England from a very early period, and has been continued down to
the present time.
I have not seen this argument adverted to ; but it seems to me im-
portant, and indeed of itself quite conclusive, as to the matter in
question, and I shall now consider it.
The term "coasts" in all these prior treaties, is applied to all the
borders and shores of the eastern waters, not only along the mainland
but in and about the Gulf of St. Lawrence, and around all the larger
and smaller islands where fisheries were carried on.
These coasts are thus defined and specified in the treaty of Utrecht
betwen Great Britain and France in 1713, of Paris in 1763, and
other treaties to the present time. In the treaty of Utrecht between
France and England, the liberty of taking and drying fish is allowed
" on the coasts of Newfoundland ;" provision is also made as to the
fisheries on the coasts, in the mouth, and in the Gulf of St. Lawrence.
Reference is made to these " coasts " in the same manner in the
treaty of Paris, which took place after the conquest of Canada. The
French are permitted by this treaty to fish in the Gulf of St. Law-
rence at a given distance from all " the coasts " belonging to Great
Britain, as well those " of the continent " as those of the islands situ-
ated in the Gulf of St. Lawrence. The fishery also " on the coasts "
of the comparatively small island " of Cape Breton out of said Gulf "
is regulated and provided for ; and further it is provided " that the
fishery on the coasts of Nova Scotia, or Acadia, and everywhere else,
out of the said Gulf, shall remain on the footing of former treaties."
Now, I regard it as utterly impossible for any one looking at these
treaties, with the map of the islands and waters in the Gulf or Bay of
St. Lawrence, and in and around Nova Scotia, referred to in these
treaties, to doubt for a moment that the term "coasts" was designed
to apply, and did, in terms, apply to the whole contour of the main-
land and the islands referred to, including the entire circuit of Nova
Scotia on the Bay of Fundy.
These expressions are continued in the same manner in the treaty
of 1783. The United States are there allowed to take fish in the Gulf
of St. Lawrence, " on the coast of Newfoundland," and also " on the
coasts, bays, and creeks of all other of His Britannic Majesty's
dominions in America."
Again, in the preamble to the treaty of 1818, which we are now
considering, it is said to have been caused by differences as to the
liberty claimed to take fish on certain coasts, bays, harbors, and creeks
of his Britannic Majesty's dominions in America, and by the treaty
MISCELLANEOUS. 1107
provision is made as to the fisheries on the coasts of Newfoundland,
and on " the coasts, bays, harbors, and creeks from Mount Joly, on
the southern coast of Labrador, to and through the straits of Belle
Isle, and thence northwardly indefinitely along the coast; " and then
follows the renunciation from the right before enjoyed by the United
States " to take, dry, or cure fish on or within three marine miles of
any of the coasts, bays, creeks, or harbors of his Majesty's dominions
in America."
It seems to me undeniable that the term " coasts " in all these
treaties was well defined and known. The outlet of the St. Lawrence
is equally well known by the term " bay " or " gulf." The shores on
that bay or gulf, and on the islands within it, are uniformly spoken
of as " coasts; " and the same mode of designating the shores along
this entire country is used in all these treaties in reference to the
various waters where fisheries were carried on.
" The coasts " named in these treaties were not only the coasts of
the Bay or Gulf of St. Lawrence, and of the island of Cape Breton,
but extended from the head of the Bay of Fundy along the bay en-
tirely around Nova Scotia to the Gulf or Bay of St. Lawrence.
There never had been any misunderstanding as to the application
of this term, or denial of the right to fish on these coasts, as I have
named them, under all these treaties down to 1818. The term " coasts,"
as applied to Nova Scotia during this long period, was as well known
and understood as the term " coasts " applied to England or Ireland ;
and it included the coasts on the Bay of Fundy as fully and certainly
as the term " coasts " of England applies to the coasts of the English
channel. It was a fixed locality, known and established, and the right
of taking fish had always been " enjoyed there."
When, therefore, the treaty of 1818 " renounced the liberty, here-
tofore enjoyed, of taking fish within three marine miles of any of
the coasts, bays creeks, etc., of his Britannic Majesty's dominions,"
the renunciation was, for this distance from a fixed locality, as fully
settled and established as language, accompanied by a long and un-
interrupted usage, could make it.
" The coasts " named are those of 1783, and of prior treaties, and
the renunciation of three miles was to be reckoned from these coasts.
The Bay of Fundy was therefore not excluded from the fishing
grounds of the United States.
The annexed sketch of the Gulf or Bay of St. Lawrence, with the
adjoining waters and coasts, will show how the term coasts was prac-
tically applied under all the treaties referred to prior to 1818.
I am not aware of any reply to the points here taken that I think
can at all invalidate them.
From the papers filed in the case, it appears that in 1841 the prov-
ince of Nova Scotia caused a case stated to be drawn up and for-
warded to England, with certain questions to be proposed to the law
officers of the crown.
One inquiry was, whether the fishermen of the United States have
any authority to enter any of the bays of that province to take fish.
These officers, Messrs. Dodson and Wilde, reply that no right exists
to enter the bays of Nova Scotia to take fish, " as they are of opinion
the term headland is used in the treaty to express the part of the
land excluding the interior of the bays and inlets of the coasts."
1108 MISCELLANEOUS.
Now, it so happens that no such term is used in the treaty, and
their decision, based on it, falls to the ground.
They were also specifically asked to define what is to be considered
a headland. This they did not attempt to do. The headlands of the
Bay of Fundy have never been defined or located, and, from the con-
tour of the bay, no such headlands properly exist.
These officers held that the American fisherman, for the reason
named, could not enter the bays and harbors of Nova Scotia. But
the Bay of Fundy is not a bay or harbor of the Province of Nova
Scotia, and was never included in its limits. The Bay of Fundy
is bounded on one side by Nova Scotia, and on the other by New
Brunswick, and it is not clear that either the question proposed or
answer given was designed to include this large arm of the sea.
It is also said that Mr. Webster has conceded the point in issue in
a notice given to American fishermen. The claims, now asserted,
were not put forth till many years after the treaty of 1818; and it
was not until 1852 the British Government gave notice that seizures
would be made of fishermen taking fish in violation of the construc-
tion of the treaty of 1818, as then claimed by them, when Mr. Webster,
to avoid the collisions that might arise, issued a notice setting forth
the claims put forth by England.
In one part of his notice he says: " It was an oversight to make
so large a concession to England," but closes by saying : " Not agree-
ing that the construction put upon the treaty by the English Govern-
ment is conformable to the intentions of the contracting parties, this
information is given that those concerned in the fisheries may under-
stand how the concern stands at present and be upon their guard."
Mr. Webster subsequently denied relinquishing, in any manner, by
this notice the rights of the United States, as claimed under this
treaty.
Detached expressions quoted from it to sustain a different opinion
can hardly be regarded, under such circumstances, as an authority.
I have seen no other argument or suggestions tending, as I think,
to sustain the grounds taken by the British Government.
On the other hand, I have adverted briefly, as I proposed, to the
history of the fisheries ; the views expressed by the negotiators of the
treaty of 1818, as to the object to be effected by it; the subsequent
practical construction of it for many years ; the construction given to
a similar article in the treaty of 1783; the evident meaning to be
gained from the entire article of the treaty taken together ; and from
the term "coasts" as used in the treaty of 1818 and other treaties
in reference to this subject; and the whole combine, as I believe, to
sustain the construction contended for by the United States.
I am therefore of opinion the owners of Washington should receive
compensation for the unlawful seizure of that vessel by the British
Government when fishing more than three miles from the shore or
coast of the Bay of Fundy.
MISCELLANEOUS. 1109
PORTIONS OF "CASE OF HER MAJESTY'S GOVERNMENT" BEFORE
THE FISHERY COMMISSION UNDER THE TREATY OF WASHING-
TON, OF MAY 8TH, 1871.
PART I — CANADA.
* * * * * * *
CHAPTER II. Advantages derived ly United States Citizens.
1. Liberty of fishing in British Waters.
Liberty to prosecute freely the sea fisheries 'on the coasts and
shore in the bays, harbors, and creeks' of Canada, is in itself a very
valuable concession to United States citizens. It concedes the
common use of extensive and productive fishing grounds, which are
readily accessible to American fishermen, and are advantageously
situated as regards their home market. °
*******
SUMMARY.
The privileges secured to United States citizens under Article
XVIII of the Treaty of Wasnm»ton, which have been above described
particularly and in detail, may be summarized as follows: —
1. — The liberty of fishing in all inshore waters of the Dominion;
the value of which shown by the kinds, quantity, and value of the
fish annually taken by United States fishermen in those waters,
as well as by the number of vessels, hands and capital employed.
2. — The liberty to land for the purpose of drying nets, and curing
fish, a privilege essential to the successful prosecution of fishing
operations.
3. — Access to the shore for purposes of bait, supply &c, including
the all important advantage of transferring cargoes, which enables
American fishermen to douole their profits by securing two or more
full fares during one season.
4. — Participation in the improvements resulting from the fisheries
service maintained by the Government of the Dominion.
The above privileges may be considered as susceptible of an
approximate money valuation, which it is respectfully submitted
should be assessed as well with reference to the quantity and value
of fish taken, and the fishing-vessels and fishermen employed, as to
other collateral advantages enjoyed by United States citizens.
It has been stated in the preceding portions of this chapter that an
average number of at least 1,000 united States vessels annually
frequent British Canadian waters. The gross catch of each vessel
per trip has been estimated at $5,600, a considerable portion of
which is net profit, resulting from the privileges conferred by the
treaty.
These privileges profitably employ men and materials representing
in industrial capital several millions of dollars; the industries to the
« Documents and Proceedings of Halifax Commission, 1877, Volume I, p. 88.
1110 MISCELLANEOUS.
advancement of which they conduce support domestic trade and
foreign commerce of great extent and increasing value; they also
serve to make a necessary and healthful article of food plentiful
and cheap for the American nation. It is not merely the value of
"raw material" in fish taken out of British Canadian waters which
constitutes a fair basis of compensation; the right of this fishery
was an exclusive privilege, the sole use of which was highly prized,
and for the common enjoyment of which we demand equivalents
to be measured by our just estimation of its worth; we enhance
the main concession on this point by according kindred liberties
and indispensable facilities, all of which are direct advantages;
and, in order to illustrate the assessable value of the grant, we adduce
certain data relating to the number of United States fishing-vessels
more immediately interested, and the gross quantity and value of
their catch in British Canadian waters.
In addition to the advantages above recited, the attention of the
Commissioners is respectfully drawn to the great importance attach-
ing to the beneficial consequences to the United States of honorably
acquiring for their fishermen full freedom to pursue their adventurous
calling without incurring constant risks, and exposing themselves
and their fellow-countrymen to the inevitable reproach of willfully
trespassing on the rightful domain of friendly neighbors. Paramount,
however, to this consideration is the avoidance of irritating disputes,
calculated to disquiet the public mind of a spirited and enterprising
people, and liable always to become a cause of mutual anxiety and
embarrassment.0
*******
PART II — NEWFOUNDLAND.
CHAPTER I. Introduction and description of Newfoundland Fisheries.
In addition to the privileges so enjoyed under the Convention
of 1818, Articles XVIII and XXI of the Treaty of Washington
granted to United States citizens:
1. — The liberty to take fish of every kind, except shell-fish, on the
remaining portion of the coast of Newfoundland, with liberty to
land on the said coast for the purpose of drying their nets and curing
their fish; provided that in so doing, they do not interfere with the
i ights of private property or with British fishermen in the peaceable
use of any part of the said coast in their occupancy for the said
purpose; the salmon and shad fisheries and all other fisheries in
rivers and mouths of rivers being reserved exclusively for British
fishermen.
2. — -The admission into Newfoundland of fish-oil and fish of all
kinds, except fish of the inland lakes and rivers falling into them,
and except fish preserved in oil, being the produce of fisheries of the
United States, free of duty.
o Ib., pp. 96-97.
MISCELLANEOUS. llll
The enjoyment of these privileges to continue for the period of
twelve years certain. °
* ' * * * * * *
* * * and it will not escape the observation of the Commis-
sioners that the privileges granted to United States fishermen in those
treaties, were always limited in extent and did not confer the entire
freedom for fishing operations which is now accorded by the Treaty
of Washington, even on those portions of the coast which were then
thrown open to them. 6
*******
CHAPTER II. Advantages derived by United States Citizens.
It will not be a matter of surprise that there should be an absence
of exact statistical information when the facts are taken into con-
sideration, that, until the Washington Treaty, this vast extent of
fishery was exclusively used by the people of Newfoundland —
sparsley scattered over a long range of coast, for the most part in
small settlements, between the majority of which the only means of
communication is by water, and where, up to the present time,
there was no special object in collecting statistical details. It is
proposed, however, to show by such evidence as will, it is believed,
satisfy the Commissioners, the nature and value of the privileges
accorded to the citizens of the United States under the Treaty of
Washington. These may be conveniently divided into three heads,
as follows :
I. The entire freedom of the inshore fisheries.
II The privilege of securing bait, refitting, drying, transshipping
and procuring supplies.
III. The advantage of a free market in Newfoundland for fish
and fish-oil.
The privileges granted in return to British subjects will be treated
bsequently and consist of —
1. The liberty of prosecuting fishing operations in United States
waters north of the 39th parallel of north latitude and
2. The advantages of a free market in the United States for fish
and fish-oil.
I. — The entire freedom of the inshore fisheries.
Newfoundland, from that part of its coast now thrown open to
United States fishermen, yearly extracts at the lowest estimate,
$5,000,000 worth of fish and fish-oil, and when the value of fish used
for bait and local consumption for food and agricultural purposes,
of which there are no returns, is taken into account, the total may
be fairly stated at $6,000,000 annually.
It may possibly be contended on the part of the United States
that their fishermen have not in the past availed themselves of the
Newfoundland inshore fisheries, with but few exceptions, and that
they would and do resort to the roasts of that island only for the pur-
pose of procuring bait for the Bank fishery. This may up to the
alb., p. 101. Mb., p. 102.
1112 MISCELLANEOUS.
present time, to some extent, be true as regards codfish, but not as
regards herring, turbot and halibut. It is not at all probable that,
possessing as they now do the right to take herring and capelin for
themselves on all parts of the Newfoundland coasts, they will con-
tinue to purchase as heretofore, and they will thus prevent the local
fishermen, especially those of Fortune Bay, from engaging in a very
lucrative employment which formerly occupied them during a por-
tion of the winter season for the supply of the United States market.
The words of the Treaty of Washington, in dealing with the ques-
tion of compensation, make no allusion to what use the United
States may or do make of the privileges granted them, but simply
state that, inasmuch as it is asserted by Her Majesty's Government
that the privileges accorded to the citizens of the United States
under Article XVIII are of greater value than those accorded by
Articles XIX and XXI to the subjects of her Brittanic Majesty,
and tnis is not admitted by the United States, it is further agreed
that a Commission shall be appointed, having regard to the privi-
leges accorded by the United States to Her Brittanic Majesty's
subjects in Articles Nos. XIX and XXI, the amount of any com-
pensation to be paid by the Government of the United States to
that of her Majesty in return for the privileges accorded to the
United States under Article XVIII.
It is asserted on the part of her Majesty's Government, that the
actual use which may be made of this privilege at the present moment
is not so much in question as the actual value of it to those who may,
if they will, use it. It is possible, and even probable, that United
States fishermen may at any moment avail themselves of the privi-
lege of fishing in Newfoundland inshore waters to a much larger
extent than they do at present; but even if they should not do so,
it would not relieve them from the obligation of making the just
payment for a right which they have acquired subject to the condi-
tion of making that payment. The case may be not inaptly illus-
trated by the somewhat analagous one of a tenancy of shooting or
fishing privileges; it is not because the tenant fails to exercise the
rights which he has acquired by virtue of his lease that the proprietor
should be debarred from the recovery of his rent.
There is a marked contrast, to the advantage of the United States
Citizens, between the privilege of access to fisheries the most valuable
and productive in the world, and the barren right accorded to the
inhabitants of Newfoundland of fishing in the exhausted and pre-
occupied waters of the United States north of the thirty-ninth
parallel of north latitude, in which there is no field for lucrative
operations even if British subjects desired to resort to them; and
there are strong grounds for believing that year by year, as, United
States fishermen resort in greater numbers to the coasts of New-
foundland for the purpose of procuring bait and supplies, they will
become more intimately acquainted with the resources of the inshore
fisheries and their unlimited capacity for extension and develop-
ment. As a matter of fact, United States vessels, have, since the
Washington Treaty came into operation, been successfully engaged
in these fisheries; and it is but reasonable to anticipate that, as the
advantages to be derived from them become more widely known,
larger numbers of United States fishermen will engage in them.
MISCELLANEOUS. 1113
A participation by fishermen of the United States in the freedom
of these waters must, notwithstanding their wonderfully reproduc-
tive capacity, tell materially on the local catch, and, while, affording
to the United States fishermen a profitable employment, must se-
riously interfere with local success. The extra amount of bait also
which is required for the supply of the United States demand for
the bank fishery must have the effect of diminishing the supply of
cod for the inshores, as it is well known that the presence or that
fish is caused by the attraction offered by a large quantity of bait
fishes, and as this quantity diminishes, the cod will resort in fewer
number to the coast. The effect of this diminution may not in all
probability be apparent for some years to come, and whilst United
States fishermen will have the liberty of enjoying the fisheries for
several years in their present teeming and remunerative state, the
effects of overfishing may, after their right to participate in them
has lapsed, become seriously prejudical to the interests of the local
fishermen.
II. The privilege of procuring bait and supplies, refitting, drying,
transshipping, cfcc.
Apart from the immense value to United States fishermen of par-
ticipation in the Newfoundland inshore fisheries, must be estimated
the important privilege of procuring bait for the prosecution of the
bank and deep-sea fisheries, which are capable of unlimited expan-
sion. With Newfoundland as a basis or operations, the right of
procuring bait, refitting their vessels, drying and curing fish, pro-
curing ice in abundance for the preservation of bait, liberty of trans-
shipping their cargoes <fcc., an almost continuous prosecution of the
bank fishery is secured to them. By means of these advantages,
United States fishermen have acquired, by the Treaty of Wash-
ington, all the requisite facilities for increasing their fishing opera-
tions to such an extent as to enable them to supply the demand
for fish food in the United States markets, and largely to furnish
the other fish markets of the world, and thereby exercise a com-
petition, which must inevitably prejudice Newfoundland exporters.
It must be remembered in contrast with the foregoing, that United
States fishing craft before the conclusion of the treaty of Washing-
ton, could only avail themselves of the coast of Newfoundland for
obtaining a supply of wood and water for shelter and for necessary
repairs in case of accident, and for no other purpose whatever; they
therefore prosecuted the bank fishery under great disadvantages not-
withstanding which, owing to the failure of the U. S. local fisheries,
and the consequent necessity of providing a new fishing grounds, the
bank fisheries nave developed into a lucrative source or employment
to the fishermen of the U. S. That this position is appreciated by
those actively engaged in the bank fisheries is attested bv the state-
ments of competent witnesses, whose evidence will be laid before the
Commission.
It is impossible to offer more convincing testimony as to the value
to United States fishermen of securing the right to use the coast of
Newfoundland as a basis of operations for the bank fisheries than is
contained in the declaration of one who has been for six years so
occupied, sailing from the ports of Salem and Gloucester, in Massa-
chusetts, and who declares that it is of the greatest importance to
1114 MISCELLANEOUS.
United States fishermen to procure from Newfoundland the bait neces-
sary for those fisheries, and that such benefits can hardly be overesti-
mated; that there will be, during the season of 1876, upwards of 200
United States vessels in Fortune Bay for bait, and that there will be
upwards of 300 vessels from the United States engaged in the Grand
Bank fishery; that owing to the great advantage of being able to run
into Newfoundland for bait of different kinds, they are enabled to
make four trips during the season; that the capelin, which may be
considered as a bait, peculiar to Newfoundland, is the best which can
be used for this fishery, and that a vessel would probably be enabled
to make two trips during the capelin season, which extends over a
period of about six weeks. The same experienced deponent is of
opinion that the bank fisheries are capable of immense expansion and
development, and that the privilege of getting bait on the coast of
Newfoundland is indispensable for the accomplishment of this object.
As an instance of trie demand for bait supplies derived from the
Newfoundland inshore fisheries, it may be useful to state that the
average amount of this article consumed by the French fishermen,
who only prosecute the bank fisheries during a period of about six
months, of the year, is from $120,000 to $160,000 annually. The
herring, capelin, and squid amply meet these requirements and are
supplied by the people of Fortune and Placentia Bays, the produce
of the Islands of St. Pierre and Miquelon being insufficient to meet
the demand.
It is evident from the above considerations that not only are the
United States fishermen almost entirely dependent on the bait supply
from Newfoundland, now open to them for the successful prosecution
of the bank fisheries, but also that they are enabled, through the privi-
leges conceded to them, by the treaty of Washington, to largely increase
the number of their trips, and thus considerably augment the profits
of the enterprise. This substantial advantage is secured at the risk,
as before mentioned, of hereafter depleting the bait supplies of the
Newfoundland inshores, and it is but just that a substantial equivalent
should be paid by those who profit thereby.
We are therefore warranted in submitting to the commissioners
that not only should the present actual advantages derived on this
head by United States fishermen be taken into consideration, but
also the probable effect of the concessions made in their favor. The
inevitable consequence of these concessions will be to attract a larger
amount of United States capital and enterprise following the profits
already made in this direction, and the effect will be to inflict an
injury on the local fishermen, both by the increased demand on their
sources of supply and by competition with them in their trade with
foreign markets.
III. The advantage of a free market for fish and fish-oil in Newfoundland.
It might at first sight appear from the return of fish exports from
the United States to Newfoundland, that this privilege was of little
or no value; indeed, the duties, when collected on this article, were
of insignificant amount. There is, however, an important benefit con-
ferred by it on United States fishermen engaged in the Bank fisheries.
In fishing on the banks in deep sea, heretofore large quantities of small
fish were thrown overboard as comparatively useless when large
MISCELLANEOUS. 1115
fish suitable for the United States market could be obtained in
abundance; this practice was highly prejudicial to the fishing grounds.
Under the Washington Treaty, two objects are obtained: first a
market for the small fish at remunerative prices in Newfoundland;
and secondly, the preservation of the fishing grounds.
It is evident that, although at the present tune United States fish-
ermen have been in enjoyment of the privileges conferred by the
Treaty of Washington only for a short period, and may not have
availed themselves to the full extent of this privilege, the actual
profits derived thereby, and which, in certain instances, will be sub-
stantiated before the commissioners by the evidence of competent
witnesses, will be more fully appreciated during the remaining years
of the existence of the right, and this item must form a part of the
claim of Newfoundland against the United States.0
AWABD OF THE FISHERY COMMISSION UNDER THE TREATY OP
WASHINGTON, MAY 8TH, 1871.&
The undersigned Commissioners appointed under Articles XXII
and XXIII of the Treaty of Washington of the 8th of May, 1871, to
determine, having regard to the privileges accorded by the United
States to the subjects of Her Britannic Majesty, as stated in Articles
XIX and XXI of said treaty, the amount of any compensation which
in their opinion ought to be paid by the Government of the United
States to the Government of Her Britannic Majesty, in return for the
privileges accorded to the citizens of the United States under Article
XVIII of the said treaty;
Having carefully and impartially examined the matters referred
to them according to justice and equity, in conformity with the sol-
emn declaration made and subscribed by them on the fifteenth day
of June, one thousand eight hundred and seventy-seven :
Award the sum of five millions five hundred thousand dollars, in
gold, to be paid by the Government of the United States to the Gov-
ernment of Her Britannic Majesty in accordance with the provisions
of the said treaty.
Signed at Halifax, this twenty-third day of November, one thousand
eight hundred and seventy-seven.
MAURICE DELFOSSE.
A. T. GALT.
The United States Commissioner is of opinion that the advantages
accruing to Great Britain under the Treaty of Washington are greater
than the advantages conferred on the United States by said treaty,
and he cannot therefore concur in the conclusions announced by his
colleagues.
And the American Commissioner deems it his duty to state further
that it is questionable whether it is competent for the board to make
an award under the treaty, except with the unanimous consent of its
members.
E. H. KELLOGG, Commissioner.
a Ib. p. 103-106. 6 ib. p. 76.
1116 MISCELLANEOUS.
RECIPROCAL TRADE WITH BRITISH COLONIES.
Extract from Haliburtorfs " Historical and Analytical Account of
Nova Scotia," pub. 1829.
CHAPTER VIII.
AN HISTORICAL SKETCH OF COLONIAL TRADE TABLES EXHIBITING COM-
PARATIVE STATEMENTS OF THE TRADE OF NOVA-SCOTIA AT DIFFERENT
PERIODS — REVENUE, &C.
When America was first discovered, the motives which induced
individuals to migrate to the Colonies, were, in some instances, the
mines and precious metals, and in others relief from religious perse-
cution; but the parent state had no definite object in view. Public
opinion was much divided, as to the expediency of engaging in these
transatlantic settlements. Hume informs us, that " speculative rea-
soners during that early age, raised many objections to the planting
of these remote Colonies, and foretold that after draining the mother
countries of inhabitants, they would soon shake off her yoke, and
erect an independent government in America." The British Colo-
nies, therefore, owe their origin more to fortuitous circumstances and
civil commotions, than to the wisdom or policy of the government of
that day, and the opinion which is generally entertained, that they
were founded for the extension of commerce, and for markets for
British Goods, is erroneous. So late as 1622, the exports of England
were £2,320,436, and the imports £2,619,315. We may also form
some opinion of the state of her manufactures, by the condition of
her agriculture, inasmuch as it furnishes the materials for the labour
of art. The sudden transitions so often mentioned by historians,
from the lowest to the highest price of grain at that time, and
the prodigious inequalities in its value in different years, are
sufficient proof that the produce entirely depended on the seasons,
and that skill had done nothing to fence against the injuries of the
heavens. The nation was dependent on Foreigners for bread, and if
ever the supplies from the Baltic, or from France, were interrupted,
the bad consequences were felt by the whole kingdom. Manufactures
were few, and those but indifferent. Naval stores and ships were
both supplied by their neighbours. Germany furnished all articles
of metal, even to nails. Wine, paper, linens, and an infinite variety
of other articles, came from France. Markets, therefore, were not
wanting to those who were themselves importers. From this it is
obvious, that accidental circumstances and not political foresight,
gave birth to the Anglo American Provinces ; and an attentive peru-
sal of the history of that time, will convince us that the restrictions
of Colonial Trade owe their origin to the same causes, and not to
national avarice or illiberality. The first European settlements were
scattered and weak, and it became necessary to shun the observations
of strangers, who might be invited to attack, by the certainty of suc-
cess, or to plunder, by the knowledge of the value of the booty.
Boundaries were unsettled and titles insecure, and possession infor-
mal or incomplete ; and as the interests of the Colonies of the several
nations, and their respective claims, were adverse, the inclinations of
the contending parties became hostile, and little or no mutual inter-
MISCELLANEOUS. 1117
course was allowed. This spirit of jealous exclusion, though natural
at first, grew confirmed by habit, and in time gave rise to that refined
and complicated system of monopoly, with which the trade of every
American colony has been fettered and restrained — Spain gave the
first example, and in the exclusion of foreigners, took to herself not
only the trade of her colonies, but even the manufacture of the ar-
ticles of primary necessity for their supply. She would not permit
them to make any efforts in industry, that might interfere with her
own productions and these restrictions extended to the culture of the
grape and the olive, which were inhibited by severe penalties. Great
Britain soon perceiving that great advantages were to be derived
from the commerce of America, followed, with many liberal modi-
fications, the policy of Spain, and monopoly became the principle of
her Colonial intercourse. This was three-fold — monopoly of supply,
monopoly of provincial produce, and monopoly of manufacture. By
the first, the Colonists could not resort to foreign markets. — By the
second they were obliged to carry their staple commodities to the
mother country; and by the third, to carry them in a raw state to
be manufactured, and then sent back to them for their own consump-
tion.
In practice many indulgencies have, from time to time, been ex-
tended to her transatlantic possessions; but in theory, this principle
has been carried to the most unlimited and extravagant extent. The
Earl of Chatham asserted in Parliament " that the British Colonists
in America had no right to manufacture even a nail for a horse-shoe."
To render the account of the trade, at present enjoyed by this
Province, intelligible to those not engaged in mercantile pursuits, it
will be necessary, and I hope acceptable to the generality of readers,
to give, as briefly as is consistent with perspecuity, an historical sketch
of the origin and principal changes of the commercial system of the
Colonies, previous to the new navigation laws. First — as regarded
the trade between them and Europe; secondly, between the Colonies
themselves ; and thirdly between them and the United States.
First. As it regarded the trade between them and Europe, the
foundation upon which this intricate system was built, was the
famous statute, called, by way of eminence, the navigation act, the
rudiments of which were framed in 1650. The resistance offered by
Barbadoes to Oliver Cromwell, and its attachment to Charles the
2nd, occasioned the prohibition of all foreign ships from trading
with the English plantations, and of the importation of Goods into
England or its dependencies, in any other than English bottoms, or
in ships of that European nation of which the merchandize imported
was the genuine produce and manufacture. At the restoration, not-
withstanding the origin of the act, those provisions were continued
by the 12th C. 2nd, Chap. 18, with this very material addition, that
the master and three fourths of the crew should be English subjects,
and that certain articles, therein enumerated, the production of any
English Colony, in Asia, Africa, or America, should not be exported
to any place, except to some other English plantation, or to England,
Ireland, Wales or Berwick. Three years afterwards these restrictions
were extended and strengthened by the 15th C. 2d, Chap. 7, which,
after stating that plantations were formed of citizens of the Mother
Country, declares the motive of the act to be " the maintaining a
greater correspondence and kindness between the subjects at home,
1118 MISCELLANEOUS.
and those in the plantations ; keeping the Colonies in a firmer depend-
ence upon the Mother Country, making them yet more beneficial and
advantageous to it, in the further employment and increase of Eng-
lish shipping, vent of English manufactures and commodities, render-
ing the navigation to and from them more safe and cheap; and
making this Kingdom a staple not only of the commodities of the
plantations, but also of the commodities of other countries and
places for the supply of them; it being the usage of other nations to
keep their plantation trade to themselves."
This Act ordained that no commodity of the growth or production
of Europe, should be imported into the British plantations, but such
as were laden and put on board in England, Wales, or Berwick, and
in English shipping, navigated according to law, and carried directly
to the colonies. With the exception of salt for the fisheries, wines
from Madeira and the Azores, and horses and victuals from Ireland
and Scotland. By a subsequent act, passed in the 7th and 8th Willm.
3d, c. 22d, the produce of the colonies was not permitted to be shipped
to Ireland or Scotland, unlesss first landed in England, and its impor-
tation was restricted to ships built in England, Ireland, or the Plan-
tations, wholly owned by English subjects, and navigated according
to Law. — Provision with various regulations to prevent counterfeit
certificates and other frauds.
Amongst other regulations for securing the due execution of the
navigation acts, a duty was imposed upon the principal " enumer-
ated " commodities, when not intended to be conveyed to Great
Britain; for it had been found, that under colour of shipping the
articles for another British colony or Plantation, they were often
vended at sea to the shipping of other nations, or transported to
Europe direct. These articles, from having been particularly speci-
fied in the acts, have been very generally distinguished from those not
named by the common appellation of " enumerated " articles, and
were of two sorts — first, such as were either the peculiar produce of
America, or as could not be, or at least were not, produced in the
mother country. — Secondly, such as were not the peculiar produce of
America, but which were or might be produced in the mother country,
though not in such quantities as to afford a sufficient supply, and were
therefore obtained from European countries. By confining the enu-
merated articles to the home markets, the merchants were not only
enabled to buy them cheaper in the plantations, and consequently sell
them at a better profit at home, but to esablish between the planta-
tions and foreign countries an advantageous carrying trade, of which
Great Britain was necessarily the centre or emporium, as the Euro-
pean country into which the articles were first to be imported. The
importation of articles of the second kind was so managed as to in-
terfere, not with the sale of those of the same kind which were pro-
duced at home, but with the sale of those imported from foreign
countries; because, by means of proper duties, they might be ren-
dered always dearer than the former, and yet much cheaper than the
latter; This was intended to operate as a discouragement to the
produce of some foreign countries, with which the balance of trade
was held to be unfavourable to Great Britain. These, with many other
intermediate and subsequent statutes, in amendment of, and addition
thereto, completed this artificial and restrictive system.
MISCELLANEOUS. 1119
It was deemed expedient, however, to depart in some measure from
the severity of these laws, by permitting the exportation of most of
the enumerated commodities, from the sugar colonies direct to Malta
and Gibralter, and allowing the exportation of a great variety of
European articles from Malta and Gibralter, direct to the said sugar
plantations, and to Newfoundland, Bermuda, and the colonies in
North America, To extend also the trade of the North American
colonies, and encourage the fisheries ; the lading of other articles was
permitted in ports of Europe, south of Cape Finisterre, on board
ships arriving from the said colonies, either with articles the produc-
tion thereof, or with British American fish. Such was the nature of
the law and policy regarding the trade with Europe ; and as none of
the countries south of Cape Finisterre were manufacturing countries,
it was not considered that any injury could arise, in consequence of a
departure from the colonial system in their favour.
Secondly. With respect to the trade between the Colonies them-
selves, both in the enumerated and non-enumerated commodities, it
was perfectly free, except as to hats, wool and woolen manufactures,
the exportation of which was wholly prohibited to any place. This
Erohibition was intended to prevent the establishment of any manu-
ictories of such commodities in the British colonies, to the injury of
the export trade of the mother country.
Fourthly [sic']. Ever since the Independence of the " United
States " the Trade of the British Colonies has been subject to pecul-
iar limitations and restrictions with respect to its intercourse with
that Country. Having broke off their political connection with
Great Britain, and become the rivals of England in trade and manu-
factures, it was thought necessary to confine the imports to Tobacco,
Naval Stores, and such articles as the British Colonies did not pro-
duce in sufficient quantities for their own use and consumption, and
which could not be obtained elsewhere; and to confine the exports
to some enumerated commodities and goods, not prohibited to For-
eign countries in Europe; such articles and goods being imported
and exported by British subjects and in British ships, except as to
importations into Bermuda, of the articles first mentioned, and ex-
portations from the Bahamas of the article of Salt.
To prevent a circuitous trade in the articles permitted to be im-
ported direct, articles of the like description were prohibited to be
imported from the islands and Colonies under the dominion of
" Foreign European Sovereigns or States," except in cases of emer-
Smcy, for the supply of the inhabitants, or from the " Portuguese
olonies," but such importations were directed to be made by British
subjects and in British ships. Such are the leading features of the
old commercial monopoly of the Colonies, which ran through no less
than twenty-nine Acts of Parliament, from the year 1660, to the un-
fortunate period of 1764; but the liberal and enlightened policy of
modern times has questioned the propriety and utility of these re-
strictive measures; and the late administrations have, by several Acts
of Parliament, left the trade of the colonies as unfettered as is con-
sistent with the true interests of England, and the proper dependancy
of these distant parts of the Empire.
After some experiments, not essential to be detailed, made by the
means of free ports, the celebrated " new navigation laws, 4 Geo. 4,
Chap. 44 and 45," were passed. The first regulated the trade of the
Colonies in America or the West Indies, with other parts of America
1120 MISCELLANEOUS.
or the West Indies — and the second regulated the trade of the Colonies
in America or the West Indies, with other parts of the world. The
former, after repealing a number of acts, either in whole or in part,
permitted the importation from any foreign country in North or
South America, or West Indies, into colonial free ports, certain
enumerated articles, consisting chiefly of bread stuff, provision, lum-
ber, live stock, seeds and raw materials, subject to specified duties;
which were, by the act, appropriated to the use of the colonies where
they were to be collected — with a proviso that the importation should
be made on British bottoms, or vessels bona fide the build of and
owned by the inhabitants of the country of which the articles im-
ported were the growth or manufacture. It also permitted the ex-
portation from the said free ports, of any article of the growth or
manufacture of any of His Majesty's Dominions, or any other article
legally imported into the said Ports, provided the vessels carrying
the same, whether British or Foreign, proceeded direct to the country
in America or the West Indies to which they respectively belonged.
The other acts, regulating the trade between the Colonies and Europe,
permitted the exportation in British built vessels, owned and navi-
gated according to law, of any article, the growth or, manufacture of
said Colony, or legally imported into the same direct, to any foreign
port in Europe or Africa, or to Gibraltar, the Island of Malta, or
the dependencies thereof, or the Islands of Guernsey, Jersey, Alder-
ney, or Sark; it also authorised the importation from any port in
the above-mentioned countries, of certain articles enumerated in a
schedulef annexed to the Act, on the payment of duties, to be applied
in a similar manner as those arising under the other act.
The very liberal provisions of these two acts were afterwards con-
solidated, with many valuable improvements, into one statute, the
6 Geo. 4th, Cap. 114, entitled " an Act to regulate the trade of the
British possessions abroad ; " which took effect on the 5th of January,
1826.
This act commences by directing that no goods, except the produce
of the fisheries in British ships, be exported from any of the British
possessions in America, by sea, from or to any place other than the
United Kingdom and its possessions, except to and from certain free
ports, the number of which his Majesty is empowered to increase, of
which Halifax was one.
Permission is granted, by the Act, to the ships of any nation
having colonies that shall grant to British ships a similar privilege,
and to them not having colonies that should place the commerce and
navigation of Great Britain and her possessions, on the footing of
the most favoured nation, to import into any of the British possessions
abroad, from the country to which they belong, goods, the produce
of those countries, and to export goods from such possessions, to be
carried to any foreign country wnat-ever. Instead of enumerating
the articles which may be imported, the act contains a brief " table
of restrictions."
After which it prescribes a table of duties on the Imports, chiefly
advalorem, and directs the Collector to pay the produce thereof over
to the Colonial Treasurer, to be appropriated by the General As-
sembly. One of the most important clauses, is that which establishes
certain of the Free Ports, viz. — Kingston, in the island of Jamaica,
Halifax, in Nova Scotia, Quebec, in Canada, Saint John, in Xew
Brunswick, and Bridge Town, in the Island of Barbadoes — to be
MISCELLANEOUS. 1121
Warehousing ports, for all goods which may be legally imported into
them; and permits any such articles, under certain regulations, to
be warehoused without payment of any duty on the first entry thereof.
These, with many enactments of minor importance, constitute the
present navigation law of the Colonies. Thus ended colonial mo-
nopoly, and with it, it is to be hoped those ungenerous feelings which
led many persons in Great Britain to suppose, that although mem-
bers of the same Empire, their interests were distinct from ours —
that any benefit derived to us, from an intercolonial trade, was an
indirect disadvantage to them; and that the poverty of the colonies,
which that very monopoly created, while it rendered us sometimes
burthensome and often importunate, was a reason for viewing us
rather in the light of needy dependents than good customers.
The benefit of this extension of trade, and the soundness of the
principle on which it is founded, will soon appear in the increase of
the national shipping — in the impulse given to colonial enterprise —
in the growing demand for British Manufactures, and in more punc-
tual remittances. It will add another proof of the fact, that the in-
dependence of the United States so clearly demonstrated, that these
American Provinces become better customers to Great Britain, in
proportion to the means they possess of enriching themselves, and that
their importations will always keep pace with the increase of the other
branches of colonial trade.
But there is another and much more important result from this
enlightened policy. It will tend to strengthen the bond of union
between the mother country and her transatlantic possessions, if not
from a principle of gratitude, at least from those feelings of interest,
which more or less actuate all mankind.
It must be obvious to every colonist, that the political dependence
of his country is little more than nominal — that he has much to hazard
by any change of Government, and little to hope for — that while he
is indebted to Great Britain for the free constitution which has been
so liberally granted to him, the most perfect political protection, and
as much commercial freedom as he can desire; he is not called upon
to bear any portion of the public burden, or to contribute in the
smallest degree to the national defence.
On a comparison of his situation with that of an inhabitant of the
United States, he can discover nothing desirable — either political,
civil, or religious, which he does not enjoy equally with him; while a
Government more congenial to his feelings, a total exemption from
taxation, a state of society more permanent and more agreeable, must
convince him that he has no inducement to become a citizen of a
Republican Government.
British Order in Council, for regulating the Commercial Intercourse
• between The United States and the British Colonial Possessions. —
5th November, 1830.
At the Court of St. James, the 5th day of November, 1830. Present.
The King's Most Excellent Majesty in Council.
Whereas by a certain Act of Parliament, passed in the 6th Year
of the Reign of His Majesty King George the Fourth, entitled, "An
Act to regulate the trade of the British Possessions Abroad ", after
92909°— S. Doc. 870, 61-3, vol 3 32
1122 MISCELLANEOUS.
reciting that, "by the Law of Navigation, Foreign Ships are per-
mitted to import into any of the British Possessions Abroad, from the
Countries to which they belong, goods, the produce of those Countries,
and to export goods from such Possessions, to be carried to any
Foreign Country whatever, and that it is expedient that such per-
mission should be subject to certain conditions;" it is, therefore,
enacted, "that the privileges thereby granted to Foreign Ships
shall be limited to the Ships of those Countries which, having
Colonial Possessions, shall grant the like privileges of trading with
those Possessions to British Ships, or which, not having Colonial
Possessions, shall place the Commerce and Navigation of this Coun-
try, and of its Possessions Abroad, upon the footing of the most
favoured Nation, unless His Majesty, by His Order in Council, shall,
in any case, deem it expedient to grant the whole, or any of such priv-
ileges, to the Ships of any Foreign Country, although the conditions
aforesaid shall not in all respects be fulfilled by such Foreign
Country : "
And whereas by a certain Order of His said late Majesty in
Council, bearing date the 27th day of July, 1826, after reciting, that
the conditions mentioned and referred to in the said Act of Parlia-
ment, had not in all respects been fulfilled by the Government of
the United States of America, and that, therefore, the privileges so
granted as aforesaid by the Law of Navigation to Foreign Ships,
could not lawfully be exercised or enjoyed by the Ships of The
United States aforesaid, unless His Majesty, by His Order in Council,
should grant the whole or any of such privileges to the Ships of The
United States aforesaid : His said Late Majesty did, in pursuance of
the powers in Him vested by the said Act, grant the privileges afore-
said to the Ships of the said United States; but did thereby provide
and declare, that such privileges should absolutely cease and deter-
mine in His Majesty's Possessions in the West Indies and South
America, and in certain other of His Majesty's Possessions Abroad,
upon and from certain days in the said Order for that purpose
appointed, and which are long since passed:
And whereas, by a certain other Order of His said late Majesty
in Council, bearing date the 16th of July, 1827, the said last men-
tioned order was confirmed; and whereas, in pursuance of the Acts
of Parliament, in that behalf made and provided, His said late Maj-
esty, by a certain Order in Council, bearing elate the 21st day of July,
1823, and by the said Oi\!er in Council, bearing date the 27th clay of
July, 1826. was pleased to order, that there should be charged on all
Vessels of the said United States, which should enter any of the
Ports of His Majesty's Possessions in the West Indies or America,
with articles of the growth, produce, or manufacture, of the said
States, certain Duties of Tonnage and of Customs therein particularly
specified :
And whereas it hath been made to appear to His Majesty in Coun-
cil, that the restrictions heretofore imposed by the Laws of the United
States aforesaid, upon British Vessels, navigated between the said
States and His Majesty's Possessions in the West Indies and America,
have been repealed, and that the Discrimination Duties of Tonnage
and of Customs, heretofore imposed by the Laws of the said United
States, upon British Vessels and their Cargoes, entering the Ports
of the said States from His Majesty's said Possessions, have also been
MISCELLANEOUS. 1123
repealed, and that the Ports of the United States are now open tc
British Vessels and their Cargoes, coming from His Majesty's Pos-
sessions aforesaid; His Majesty doth, therefore, with the advice of
His Privy Council, and in pursuance and exercise of the powers so
vested in Him, as aforesaid, by the said Act, so passed in the 6th Year
of the Reign of His said late Majesty, or by any other Act or Acts
of Parliament, declare, that the said recited Orders in Council, of
the 21st day of July, 1823, and of the 27th day of July, 1826, and the
said Order in Council, of the 16th day of July, 1827 (so far as such
last mentioned Order relates to the said United States) shall be, and
the same are, hereby respectively revoked :
And His Majesty doth, further, by the advice aforesaid, and in pur-
suance of the powers aforesaid, declare that the Ships of and belong-
ing to the said United States of America, may import from The
United States aforesaid, into the British Possessions Abroad, Goods
the produce of those States, and may export Goods from the British
Possessions Abroad to be carried to any Foreign Country whatever.
And the Right Honourable the Lords Commissioners of His Maj-
esty's Treasury, and the Right Honourable Sir. George Murray, one
of His Majesty's Principal Secretaries of State, are to give the neces-
sary directions herein, as to them may respectively appertain.
JAS. BULLER.
'Act of Congress of May 29, 1830.
(4 Stat. L./chap. 207.)
AN ACT To amend the acts regulating the commercial intercourse between the
United States and certain colonies of Great Britain.
Be it enacted ~by the Senate and House of Representatives of the
United States of America, in Congress assembled, That whenever the
Presi 'ont of the United States shall receive satisfactory evidence
that the government of Great Britain will open the ports in its
colonial possessions in the West Indies, on the continent of South
America, the Bahama Islands, the Caicos, and the Bermuda or Somer
Islands, to the vessels of the United States, for an indefinite or for
a limited term; that the vessels of the United States and their car-
goes, on entering the colonial ports aforesaid, shall not be subject to
other or higher duties of tonnage or impost, or charges of any other
description, than would be imposed on British vessels or their car-
goes, arriving in said colonial possessions from the United States;
that the vessels of the United States may import into the said colonial
possessions from the United States any article or articles which could
be imported in a British vessel into the said possessions from the
United States; and that the vessels of the United States may export
from the British colonies aforementioned, to any country whatever,
other than the dominions or possessions of Great Britain, any article
or articles that can be exported therefrom in a British vessel, to any
country other than the British dominions or possessions as afore-
said; leaving the commercial intercourse of the United States, with
all other parts of the British dominions or possessions, on a footing
not less favorable to the United States, than it now is, and that then,
and in such case, the President of the United States shall be, and he
1124 MISCELLANEOUS.
is hereby authorized at any time before the next session of Congress,
to issue his proclamation, declaring that he has received such evi-
dence; and, thereupon, from the date of such proclamation, the ports
of the United States shall be opened, indefinitely or for a fixed term,
as the case may be, to British vessels coming from the said British
colonial possessions, and their cargoes, subject to no other or higher
duty of tonnage or impost, or charge of any description whatever,
than would be levied on the vessels of the United States, or their car-
goes, arriving from the said British possessions ; and it shall be law-
ful for the said British vessels to import into the United States, and
to export therefrom, any article or articles which may be imported
or exported in vessels of the United States : and the act, entitled "An
act concerning navigation," passed on the eighteenth day of April,
one thousand eight hundred and eighteen; an act supplementary
thereto, passed on the fifteenth day of May, one thousand eight hun-
dred and twenty, and an act, entitled "An act to regulate the com-
mercial intercourse between the United States, and certain British
ports," passed on the first day of March, one thousand eight hundred
and twenty -three, are, in such case, hereby declared to be suspended,
or absolutely repealed, as the case may require.
SEC. 2. And be it further enacted, That, whenever the ports of the
United States shall have been opened, under the authority given in
the first section of this act, British vessels and their cargoes shall be
admitted to an entry in the ports of the United States from the
islands, provinces, or colonies, of Great Britain, on or near the North
American continent, and north or east of the United States.
Approved, May 29, 1830.
Presidents Proclamation of October 5, 1830, relative to trade with
the British Colonies.
BY THE PRESIDENT OF THE UNITED STATES or AMERICA. — A PROCLA-
MATION.
Whereas by an act of the Congress of the United States passed on
the 29th day of May, 1830, it is provided that whenever the Presi-
dent of the United States shall receive satisfactory evidence that the
Government of Great Britain will open the ports in its colonial pos-
sessions in the West Indies, on the continent of South America, the
Bahama Islands, the Caicos, and the Bermuda or Somer Islands to
the vessels of the United States for an indefinite or for a limited
term; that the vessels of the United States, and their cargoes, on
entering the colonial ports aforesaid, shall not be subject to other
or higher duties of tonnage or impost or charges of any other de-
scription than would be imposed on British vessels or their cargoes
arriving in the said colonial possessions from the United States ; that
the vessels of the United States may import into the said colonial
possessions from the United States any article or articles which could
be imported in a British vessel into the said possessions from the
United States ; and that the vessels of the United States may export
from the British colonies aforementioned, to any country whatever
other than the dominions or possessions of Great Britain, any article
or articles that can be exported therefrom in a British vessel to any
MISCELLANEOUS. 1125
country other than the British dominions or possessions as aforesaid,
leaving the commercial intercourse of the United States with all
other parts of the British dominions or possessions on a footing not
less favorable to the United States than it now is — that then, and in
such case, the President of the United States shall be authorized, at
any time before the next session of Congress, to issue his proclama-
tion declaring that he has received such evidence, and that thereupon,
and from the date of such proclamation, the ports of the United
States shall be opened indefinitely or for a term fixed, as the case
may be, to British vessels coming from the said British colonial pos-
sessions, and their cargoes, subject to no other or higher duty of ton-
nage or impost or charge of any description whatever than would be
levied on the vessels or the United States or their cargoes arriving
from the said British possessions ; and that it shall be lawful for the
said British vessels to import into the United States or their cargoes
arriving from the said British possessions ; and that it shall be lawful
for the said British vessels to import into the United States and to
export therefrom any article or articles which may be imported or
exported in vessels of the United States; and that the act entitled
"An act concerning navigation," passed on the 18th day of April,
1818, an act supplementary thereto, passed the 15th day of May, 1820,
and an act entitled "An act to regulate the commercial intercourse
between the United States and certain British ports," passed on the
1st day of March, 1823, shall in such case be suspended or absolutely
repealed, as the case may require ; and
Whereas by the said act it is farther provided that whenever the
ports of the United States shall have been opened under the authority
thereby given, British vessels and their cargoes shall be admitted to
an entry in the ports of the United States from the islands, provinces,
or colonies of Great Britain on or near the North American continent
and north or east of the United States ; and
Whereas satisfactory evidence has been received by the President
of the United States that whenever he shall give effect to the pro-
visions of the act aforesaid the Government of Great Britain will
open for an indefinite period the ports in its colonial possessions in
the West Indies, on the continent of South America, the Bahama
Islands, the Caicos, and the Bermuda or Somer Islands to the vessels
of the United States, and their cargoes, upon the terms and accord-
ing to the requisitions of the aforesaid act of Congress:
Now, therefore, I, Andrew Jackson, President of the United States
of America, do hereby declare and proclaim that such evidence has
been received by me, and that by the operation of the act of Congress
passed on the 29th day of May, 1830, the ports of the United States
are from the date of this proclamation open to British vessels coming
from the said British possessions, and their cargoes, upon the terms
set forth on the said act. The act entitled "An act concerning navi-
gation," passed on the 18th ctay of April, 1818, the act supplementary
thereto, passed the 15th day of May, 1820, and the act entitled "An
act to regulate the commercial intercourse between the United States
and certain British ports," passed the 1st day of March, 1823, are
absolutely repealed, and British vessels and their cargoes are ad-
mitted to an entry in the ports of the United States from the islands,
provinces, and colonies of Great Britain on or near the North Ameri-
can continent and north or east of the United States.
1126 MISCELLANEOUS.
Given under my hand, at the city of Washington, the 5th day of
October, A. D. 1830, and the fifty-fifth of the Independence of the
United States.
ANDREW JACKSON.
By the President:
M. VAN BUREN,
Secretary of State.
EXTRACTS FROM THE REVISED STATUTES OF THI3 UNITED
STATES, 1878, RELATING TO THE REGULATION OF COMMERCE
AND NAVIGATIONS
TITLE XLVIII.
REGULATION OF COMMERCE AND NAVIGATION.
Chapter One.
Registry and, Recording.
*******
SEC. 4131. Vessels registered pursuant to law and no others, except
such as shall be duly qualified according to law for carrying on the
coasting or fishing trade, shall be deemed vessels of the United States,
and entitled to the benefits and privileges appertaining to such ves-
sels; but no such vessel shall enjoy such benefits and privileges longer
than it shall continue to be wholly owned by a citizen or citizens of
the United States or a corporation created under the laws of any of
the States thereof, and be commanded by a citizen of the United
States. And all the officers of vessels of the United States who shall
have charge of a watch, including pilots, shall in all cases be citizens
of the United States. The word " officers " shall include the chief
engineer and each assistant engineer in charge of a watch on vessels
propelled wholly or in part by steam; and after the first day of
January, eighteen hundred and ninety-seven, no person shall be quali-
fied to hold a license as a commander or watch officer of a merchant
vessel of the United States who is not a native-born citizen, or whose
naturalization as a citizen shall not have been fully completed. [As
amended by Sec. 1, Chap. 255, Act of Congress of May 28, 1896.1
SEC. 4132. Vessels built within the United States, and belonging
wholly to citizens thereof, and vessels which may be captured in war
by citizens of the United States, and lawfully condemned as prize,
or which may be adjudged to be forfeited for a breach of the laws of
the United States, being wholly owned by citizens, and no others, may
be registered as directed in this Title.
SEC. 4133. No vessel shall be entitled to be registered, or, if regis-
tered, to the benefits of registry, if owneji, in whole or in part by any
citizen of the United States who usually resides in a foreign country,
during the continuance of such residence, unless such citizen be a
consul of the United States, or an agent for and a partner in some
house of trade or copartnership, consisting of citizens of the United
States actually carrying on trade within the United States.*
6 Repealed by sec. 16, chap. 389, act of Congress of March 3, 1897.
0 See also pp. 1300, 1301.
MISCELLANEOUS. 1127
SEC. 4134. No vessel shall be entitled to be registered as a vessel of
the United States, or, if registered, to the benefits of registry, if owned
in whole or in part by any person naturalized in the United States,
and residing for more than one year in the country from which he
originated, or for more than two years in any foreign country, unless
such person be a consul or other public agent of the United States.
Nothing contained in this section shall be construed to prevent the
registering anew of any vessel before registered, in case of a sale
thereof in good faith to any citizen resident in the United States;
but satisfactory proof of the citizenship of the person on whose ac-
count a vessel may be purchased shall be exhibited to the collector,
before a new register shall be granted for such vessel.0
*******
SEC. 4142. In order to the registry of any vessel, an oath shall be
taken and subscribed by the owner, or by one of the owners thereof,
before the officer authorized to make such registry, declaring, accord-
ing to the best of the knowledge and belief of the person so swearing,
the name of such vessel, her burden, the place where she was built,
if built within the United States, and the year in which she was built ;
or that she has been captured in war, specifying the time, by a citizen
of the United States, and lawfully condemned as prize, producing a
copy of the sentence of condemnation, authenticated in the usual
forms; or that she has been adjudged to be forfeited for a breach of
the laws of the United States, producing a like copy of the adjudica-
tion of forfeiture; and declaring his name and place of abode, and if
he be the sole owner of the vessel, that such is the case ; or if there be
another owner, that there is such other owner, specifying his name
and place of abode, and that he is a citizen of the United States, and
specifying the proportion belonging to each owner; and where an
owner resides in a foreign country, in the capacity of a consul of the
United States, or as an agent for and a partner in a house or copart-
nership consisting of citizens of the United States, actually carrying
on trade within the United States, that such is the case, that the per-
son so swearing is a citizen of the United States, and that there is no
subject or citizen of any foreign prince or state, directly or indirectly,
by way of trust, confidence, or otherwise, interested in such vessel, or
in the profits or issues thereof ; and that the master thereof is a citizen,
naming the master, and stating the means whereby or manner in
which he is a citizen.
SEC. 4143. If any of the matters of fact alleged in the oath taken
by an owner to obtain the registry of any vessel, which within the
knowledge of the party so swearing are not true, there shall be a
forfeiture of the vessel, together with her tackle, apparel, and fur-
niture, in respect to which the oath shall have been made, or of the
value thereof, to be recovered, with the costs of suit, of the person by
whom the oath was made.
*******
SEC. 4165. A vessel registered pursuant to law, which by sale
has become the property of a foreigner, shall be entitled to a new
register upon afterwards becoming American property, unless it has
been enlarged or undergone change in build outside of the United
0 Repealed by sec. 16, chap. 389, act of Congress of March 3, 1897.
1128 MISCELLANEOUS.
States. [As amended ~by Sec. 10, Chap. 389, Act of Congress of
March 3, 1897}.
* * * * * . * «
SEC. 4171. When the master or person having the charge or com-
mand of a registered vessel is changed, the owner, or one of the
owners, or the new macter of such vessel, shall report such change
to the collector of the district where the same has happened, or where
the vessel shall first be after the same has happened, and shall pro-
duce to him the certificate of registry of such vessel, and shall make
oath, showing that such new master is a citizen of the United States,
and the manner in which or means whereby he is so a citizen. There-
upon the collector shall indorse upon the certificate of registry a mem-
orandum of such change, specifying the name of such new master,
and shall subscribe the memorandum with his name; and if other
than the collector of the district by whom the certificate of registry
was granted, shall transmit a copy of the memorandum to him, with
notice of the particular vessel to which it relates; and the collector
of the district, by whom the certificate shall have been granted, shall
make a like memorandum of such change in his book of registers,
and shall transmit a copy thereof to the Register of the Treasury.
If the change is not reported, or if the oath is not taken, as above
directed, the registry of such vessel shall be void, and the master or
person having the charge or command of her shall be liable to a
penalty of one hundred dollars.
*•**«**«
SEC. 4189. Whenever any certificate of registry, enrollment, or
license, or other record or document granted in lieu thereof, to any
vessel, is knowingly and fraudulently obtained or used for any vessel
not entitled to the benefit thereof, such vessel, with her tackle, ap-
parel, and furniture, shall be liable to forfeiture.
SEC. 4190. No sea-letter or other document certifying or proving
any vessel to be the property of a citizen of the United States shall
be issued, except to vessels duly registered, or enrolled and licensed
as vessels of the United States, or to vessels which shall be wholly
ovrned by citizens of the United States, and furniched with or en-
titled to sea-letters or other custom-house documents.
TITLE L.
REGULATION OF VESSELS IN DOMESTIC COMMERCE.
SEC. 4311. Vessels of twenty tons and upward, enrolled in pur-
suance of this Title, and having a license in force, or vessels of less
than twenty tons, which, although not enrolled, have a license in
force, as required by this Title, and no others, shall be deemed vessels
of the United States entitled to the privileges of vessels employed in
the coasting-trade or fisheries.
SEC. 4312. In order for the enrollment of any vessel, she shall
possess the same qualifications, and the same requirements in all
respects shall be complied with, as are required before registering a
vessel; and the same powers and duties are conferred and imposed
upon all officers, respectively, and the same proceedings shall be had,
MISCELLANEOUS. 1129
in enrollment of vessels, as are prescribed for similar cases in register-
ing; and vessels enrolled, with the masters or owners thereof, shall
be subject to the same requirements as are prescribed for registered
vessels.
*******
" SEC. 4320. No licensed vessel shall be employed in any trade
whereby the revenue laws of the United States shall be defrauded.
The master of every such vessel shall swear that he is a citizen of the
United States, and that such license shall not be used for any other
vessel or any other employment than that for which it was specially
granted, or in any trade or business whereby the revenue of the,
United States may be defrauded; and if such vessels be less than
twenty tons burden, the husband or managing owner shall swear that
she is wholly the property of citizens of the United States; where-
upon it shall be the duty of the collector of the district comprehend-
ing the port whereto such vessel may belong to grant a license." [As
amended ~by sec. 3, chap. %4j Act of Congress of January 16, 1895J]
SEC. 4321. The form of a license for carrying on the coasting-trade
or fisheries shall be as follows:
" License for carrying on the (here insert ' coasting trade,' ' whale-
fishery,' ' mackerel-fishery ', or ' cod-fishery,' as the case may be) .
" In pursuance of Title L, ' Regulation of Vessels in Domestic
Commerce,' of the Revised Statutes of the United States, (inserting
here the name of the husband or managing owner, with his occupa-
tion and place of abode, and the name of the master, with the place
of his abode), having given bond that the (insert here the description
of the vessel, whether ship, brigantine, snow, schooner, sloop, or what-
ever else she may be), called the (insert here the vessel's name),
whereof the said (naming the master) is master, burden (insert here
the number of tons, in words) tons, as appears by her enrollment,
dated at (naming the district, day, month and year, in words at
length, but if she be less than twenty tons, insert, instead thereof,
' proof being had of her admeasurement'), shall not be employed in
any trade, while this license shall continue in force, whereby the
revenue of the United States shall be defrauded, and having also
sworn (or affirmed) that this license shall not be used for any other
vessel, or for any other employment, than is herein specified, license
is hereby granted for the said (inserting here the description of the
vessel) called the (inserting here the vessel's name), to be employed
in carrying on the (inserting here ' coasting trade,' ' whale-fishery,'
' mackerel-fishery ', or ' cod-fishery ', as the case may be) , for one year
from the date hereof, and no longer. Given under my hand and seal,
at (naming the said district), this (inserting the particular day) day
of (naming the month), in the year (specifying the number of the
year in words at length").
1130 MISCELLANEOUS.
EXTRACTS FROM REPORT ON THE PRINCIPAL FISHERIES OF
THE AMERICAN SEAS; BY LORENZO SABINE.*
CUSTOM-HOUSE, BOSTON,
Collector's Office, December 10, 1852.
SIR: I transmit herewith a report on the fisheries, by Lorenzo
Sabine, esq., which he has prepared for the department.
I am, sir, very respectfully, your obedient servant,
P. GREELY, Jr.,
Collector.
Hon. THOMAS CORWIN,
Secretary of the Treasury, Washington, D. C.
FRAMINGHAM, December 6, 1852.
SIR: I submit herewith the report which I have prepared, in ac-
cordance with your instructions of the 2d of February last.
More than twenty years have elapsed since I formed the design of
writing a work on the American fisheries, and commenced collecting
materials for the purpose. My intention embraced the whale fishery
of our flag in distant seas; the fisheries of our own coasts, lakes, and
rivers, as well as those which we prosecute within British jurisdiction,
under treaty stipulations; and the fisheries of the Indian tribes within
the limits of the United States. That a part of my plan has now
been executed, is owing entirely to the interest and zeal which you
have manifested in the undertaking.
Our first interview upon the subject was caused by a communication
to you from the Treasury Department, in which the Secretary con-
veyed a request that a report of limited size should be furnished from
your own office. During our conversation, you expressed a desire to
look over my collection of documents and state-papers, and they were
accordingly deposited with you for examination. On returning them
to me, you were pleased to give a favorable opinion of their value, and
to say that you would at once suggest and recommend to Mr. Corwin
the expediency of employing me to write a paper somewhat more
elaborate than he had contemplated.
Subsequently, you announced to me that the Secretary promptly
adopted your views, and submitted the whole matter to your discretion.
I undertook the task with all my heart, and with a determination to
complete it, if possible, in a manner to meet the expectations of the
department and of yourself. It is finished. Whatever the judgment
pronounced upon it, I have still to express my grateful acknowledg-
ments to Mr. Corwin for the kindness which has allowed the partial
gratification of a long-cherished wish, and to you for the original sug-
gestion, for your countenance, your sympathy, and your personal
supervision.
If I may venture to hope that, as the result of my labors, an impor-
tant branch of national industry will hereafter be better understood and
* All footnotes printed with these extracts are as they appear in the original report.
MISCELLANEOUS. 1181
appreciated by such of our countrymen as have never devoted particu-
lar attention to its history, I may venture to repeat that all commenda-
tion rightfully belongs to you.
Nor would I forget that my thanks are also due to William A. Well-
man, esq., your principal deputy collector, who, at our second Inter-
view, generously relinquished his own favorite plan of writing a report
upon our cod and mackerel fisheries, and expressed a decided wish
that the duty should be transferred to me, as well as his readiness to
afford me all possible aid. His knowledge and experience have been
of material assistance. I am indebted to him for important facts which
were to be obtained of no other person, for information which has cor-
rected my views and opinions in several particulars, and for statis-
tical matter of great value.
I have the honor to be, sir, your obedient servant,
LORENZO SABINB.
PHILIP GREELY, Jr., Esq.,
Collector of the Customs port of Loston and Charlestown
PART I. — FRANCE, SPAIN, PORTUGAL.
COD-FISHERY OF FRANCE.
The French were the first European cod-fishers in the American
seas. There is a tradition among the fishermen of Biscay that their
countrymen visited Newfoundland before the time of Columbus. It is
said, indeed, that the great discoverer was informed of the fact by a
pilot who had been engaged in the enterprises. The story, improbable
as it is, seems to have been treated with respect by some writers of the
sixteenth century, but may be dismissed now as one which rests upon
no clear and authentic testimony.
But that the Newfoundland fisheries were known to the Biscayans
and Normans as early as the year 1504, is quite certain. When
Cabot discovered our continent, Europe, including England, was Cath-
olic; and during the fasts of the church, the pickled herring of Holland
was the principal food. The consumption of fish was immense;* and
the Dutch, having enjoyed the monopoly of the supply, had become
immensely rich. The knowledge communicated by Cabot and the
voyagers who followed him, that the waters of America contained, not
only an abundance, but many varieties of fish, gave rise to an excite-
ment on the subject of fishing hardly less intense than is witnessed at
the present time relative to mining. Persons of the highest rank, and
* Documents which show the immense consumption of fish are to be met with by the
students of history everywhere. The following incidents, selected from a number,
will sufficiently illustrate the statement in the text:
"The bill of fare of the feast given on the marriage of Henry IV to his Queen Joan, of
Navarre, at Winchester, in 1403, 'is yet in existence, written on parchment,' remarks a
chronicler of curious things of 'the olden tune;' and the banquet consisted of six
courses — three of flesh and fowl, and three offish. In the 'first course of Fijshe,' were
'Salty fyshe,' and 'Breme samoun rostyd.' 'Of the comforts of the poor,' 16th century,
says an English journal, 'we may form a tolerably correct notion from the luxuries
registered in the household book of the great Earl of Northumberland.' From this
document it appears that, in one of the most noble and splendid establishments of
1132 MISCELLANEOUS.
not engaged in commercial pursuits, become shareholders in adven-
tures to the new fishing-grounds. And though the Dutch refused to
abandon the particular fishery by which they had obtained both
wealth and celebrity, vessels wearing the flags of France, England,
Spain, and Portugal came annually in search of the cod — as we shall
see — for nearly a century before a single European colony was
founded in America north of the ancient limits of the United States.
Of the incidents of the French fishing voyage of 1504 I have not
been able to find any account ; but there is mention, four years later,
of Thomas Aubert, who came from Dieppe to Newfoundland, and
who, previous to his return, explored the river St. Lawrence. We
learn, further, that the fishery increased rapidly, and that, in 1517,
quite fifty ships of different nations were employed in it.
The flag or France was probably the most numerous, since, in
1527, an English captain at Newfoundland wrote to his sovereign,
Henry VIII, that in the harbor of St. John alone he found fishing
eleven sail of Norman and one Breton. Francis I, at this period, was
engrossed by a passionate and unsuccessful rivalry with Charles V of
Spain, and could hardly attend to so humble an interest. "But
Cnabot, admiral of France, acquainted by his office with the fisher-
men, on whose vessels he levied some small exactions for his private
emolument, interested Francis in the design of exploring and colo-
nizing the new world." Jacques Cartier,* of St. Malo, who was con-
sidered the best seaman of his day, was accordingly intrusted with
the command of an expedition in 1534.
The French appear to have had establishments on shore, for the
purposes of the fishery, in 1540; but we have no certain information
with regard to them. In 1577 they employed no less than one hun-
dred and fifty vessels, and prosecuted the business with great vigor
and success. After the accession of Henry IV — the first or the Bour-
bons— and under the auspices of his illustrious minister, Sully, the
Newfoundland cod-fishery was placed under the protection of the
government.
Previous to 1609, so constant and regular was intercourse with our
fishing-grounds that Scavalet, an old fisherman, had made forty
voyages.
the kingdom, the retainers and servants had but spare and unwholesome diet — salt
beef, mutton, and fish three-fourtJis of the year, with little or no vegetables; so that,
as Hume says, 'there cannot be anything more erioneous than the magnificent ideas
formed of the roast beef of old England.' Nor does it seem that 'my lord and lady'
themselves fared much better than their 'retainers,' since for their breakfast they
had 'a quart of beer, as much wine, two pieces of salt fish, six red herrings, four white
ones, and a dish of sprats.' In England, in the same century, 'the first dish brought
to table on Easter day was a red herring riding away on horseback;' that is, it was the
cook's duty to set this fish 'in corn sallud,' and make it look like a man riding on a
horse."
* Jacques Cartier was a native of St. Malo. Francis I sent him on his first voyage
in 1534. He made a second voyage in 1535; and, when ready to depart fromFrance,
he went to the cathedral, with his whole company, to receive the bishop's benedic-
tion. Many of his companions were young men of distinction. He came to the
French possessions in America a third time in 1540, as pilot, and in command of five
ships, under Francois de la Roque, lord of Roberval, wno, commissioned as governor
of Canada, was intrusted with the supreme authority. Cartier published an account
of Canada after his second voyage.
MISCELLANEOUS. 1133
Without statistics in the early part of the seventeenth century, we
only know, generally, that there was a material decline in this distant
branch of industry, caused, possibly, by the civil commotions at home.
But in the year 1645, though the number of vessels employed was
fifty less than in 1577, the fishermen of France were deemed by
English writers to be formidable rivals of their own. Disputes and
bloodshed had then occurred — precursors of long and distressing wars
for the mastery of the fishing-grounds.
Meantime the successes, the explorations, and the representations
of the hardy adventurers to our waters for an article of food for the
fast-days of the church had led to the most important political results.
The limits of this report do not permit minute statements ; and I will
only remark that, when Cartier — already referred to — made his first
voyage, the design of the French monarch was merely to found a single
colony in the neighborhood of the fishing-banks, but that the informa-
tion of the country communicated to Francis on the navigator's return,
confirming as it did the descriptions of the fishermen of Normandy
and Brittany, induced a more extended plan, and the possession, for
permanent colonization, of the vast region from which, after the
voyages and discoveries of Pontgrave, of Champlain, and others, were
formed the colonies of Canada and Nova Scotia, and, in due time,
Cape Breton. Thus it is historically true that France was directly
indebted to her fisheries for her possessions in America.
The right to these possessions was soon disputed. In an age when
kings claimed, each for himself, all the lands and seas that his subjects
saw or sailed over, and when charters and grants were framed in per-
fect ignorance of the domains which they transferred, almost in
levity, to favorites, it could not but sometimes happen that the sub-
jects of different crowns received patents of precisely the same tracts
of country, and that, on lines where French and English grants met,
the boundaries were so vaguely and uncertainly described as to pro-
duce long and bitter contentions.
Such, indeed, was the case to an extent to disturb the peace of the
colonists of America for more than a century. As most of the con-
troversies from this source are connected with our subject, a notice
of them is indispensable.
The first difficulties occurred in the country known for a long time
as "Acadia," which may be described, generally, as embracing the
whole of the present colonies of Nova Scotia and New Brunswick, and
Maine between the Kennebec and the St. Croix rivers. It is suffi-
ciently definite for our purpose to say that this immense territory was
claimed by both crowns, and that the subjects of both — the one rest-
ing on the English grant to Sir William Alexander, and the other on
the French patent to De Monts — settled upon it, and fished in its
seas, as inclination led them.
The treaty of St. Germains, in 1632, hushed for a while the earlier
disputes, since Charles I, who had married a French princess, re-
signed by that instrument all the places in Canada, Nova Scotia, and
Cape Breton occupied by persons who owed allegiance to him; yet,
as the English people condemned the cession, and as neither lines nor
limits were defined, new contentions arose, wluch, as we shall see,
1134 MISCELLANEOUS.
were terminated only with the extinction of French power in this
hemisphere. In fact, historians of acknowledged authority consider
the treaty of St. Germains as among the prominent causes of the
American Revolution, inasmuch as the disputes to which it gave rise
disturbed, finally, the relations between England and her thirteen
colonies.
Twenty-two years elapsed, and Cromwell, in a time of profound
peace with France, took forcible possession of Nova Scotia, claiming
that its cession by Charles was fraudulent. He erected it into a col-
ony, and organized a government. It was considered highly valuable,
and Englishmen of rank aspired to become its proprietary lords from
the moment of its acquisition.
The French court remonstrated, without changing the purpose of
the protector. But, after the restoration of the Stuarts, and by the
treaty of Breda, in 1667, this colony passed a second time to France.*
Though St. John, Port Royal, La Heve, Cape Sable, as well as Penta-
gaet or Penobscot, were specially named in the cession, the general
boundaries were not mentioned, and the soil and the fishing-grounds
were again the scenes of collisions, reprisals, and fierce quarrels. A
third treaty — that of London — in 1686, confirmed the two powers in
the possession of the American colonies respectively held at the com-
mencement of hostilities, but left the extent and limits of all as unset-
tled as before.
Sagacious men in New England had now seen for years that the
expulsion of the French was the only measure that would secure
peace in the prosecution of the fisheries, and they endeavored to enlist
the sympatlry and co-operation of the mother country. The war be-
tween France and England which followed the accession of William
and Mary was no sooner proclaimed at Boston than the general court
of Massachusetts commenced preparations for the conquest of Nova
Scotia and Canada. Sir William Phips, who was born and bred
among the fishermen of Maine, was intrusted with the command of
an expedition against both. He reduced the first, and established a
government; but his enterprise in the St. Lawrence was disastrous.
It is of interest to add, that the first paper money emitted in America
was issued by Massachusetts to defray the expenses of these military
operations.
* Edward Randolph, the first collector of the customs of Boston, in a Narrative to the
Lords of Trade and Plantations, in 1676, says that "The French, upon the last treaty
of peace concluded between the two crowns of England and France, had Nova Scotia,
now called Acadie, delivered up to them, to the great discontent and murmuring of
the government of Boston, that his Majestic, without their knowledge or consent,
should part with a place so profitable to them, from whence they drew great quantities
of beaver and other peltry, besides the fishing for cod. Nevertheless," he adds, "the
people of Boston have continued a private trade with the French and Indians inhabit-
ing those parts for beaver skins and other commodities, and have openly kept on their
fishing upon the said coasts."
He says further, that "Monsieur La Bourn, governor for the French king there,
upon pretence of some affronts and injuries offered him by the government of Boston,
did strictly inhibit the inhabitants any trade with the English, and moreover layd in
imposition of four hundred codfish upon every vessel that should fish upon the coasts,
and such as refused had their fish and provisions seized on and taken away." By
the "Boston government," Randolph means the government of Massachusetts.
MISCELLANEOUS. 1135
At the peace of Ryswick, in 1697, it was stipulated that mutual
restitution should be made of all conquests during the war; and,
much to the dissatisfaction of the English colonists, Nova Scotia
returned once more to the undisputed possession of the French. The
strife in America had been avowedly for the fisheries, and for territory
north and west; and this treaty, which, with the exception of the
eastern half of Newfoundland, secured to France the whole coasts,
the islands, and the fishing-grounds from Maine to beyond Labrador
and Hudson's Bay, besides Canada and the valley of the Mississippi,
was regarded as dishonorable to England and wantonly injurious to
colonial industry and peace.
The evil consequences of the treaty of Ryswick were soon manifest.
A year had not elapsed before the French government promulgated a
claim to the sole ownership of the fisheries.- In 1698, a frigate bound
from France to Nova Scotia furnished the master of a Massachusetts
vessel with a translated order from the king, which authorized the
seizure of all vessels not of the French flag that should be found fish-
ins: on the coast. General publicity of the order followed, and its exe-
cution was rigidly enforced. Bonaventure, in the ship-of-war Enviux,
boarded and sent home every English colonial vessel that appeared on
his cruising-ground ; while Villabon, governor of Nova Scotia, in an
official despatch to the executive of Massachusetts, declared that in-
structions from his royal master demanded of him the seizure of every
American fisherman that ventured east of the Kennebeck river, in
Maine. The claim was monstrous. If I understand its extent, the
only fisheries which were to be open and free to vessels of the English
flag were those westerly from the Kennebeck to Cape Cod, and those of
the western half of Newfoundland. It seems never to have occurred
to a single French statesman that the supply of fish in our seas is
inexhaustible, and that, reserving certain and sufficient coasts for the
exclusive use of their own people, other coasts might have been
secured to their rivals, without injury to any, and with advantage to
all. In fact, evidence that such a plan was suggested by our fathers,
or by the ministry "at home," does not, I think, exist. On both sides
the strife was for the monopoly and for the mastery.
Richard, Earl Bellamont, arrived in Boston in 1699,* and, having
assumed the administration of affairs in Massachusetts, pointedly re-
ferred to these pretensions in a speech to the general court, and to the
execrable treachery of the Stuart who had parted last with Nova
Scotia and "the noble fishery on its coast." But his lordship could
afford no redress.
In the first year of the reign of Queen Anne, the two nations were
again involved in war. Among its causes was the claim of France to a
part of Maine and to the whole of the fishing-grounds. The people of
New England, driven from the Acadian seas by the common enemy,
needed no solicitation from the mother country to engage heartily in
* It was a new thing to see a nobleman at the head of the government of Massachu-
setts, and he was received with the greatest respect. "Twenty companies of soldiers
and a vast concourse of people met his lordship and the countess, and there was fire-
work and good drink all night." He died in New York in 1701. He was an enemy of
the Stuarts.
1136 MISCELLANEOUS.
the contest. On the other hand, employing armed vessels of their
own, they were hardly restrained, in their zeal and success, from hang-
ing as common pirates some of the French officers who had been the
instruments of interrupting their pursuits in the forbidden waters.
Nor was this all. 1 hey attempted the conquest of Nova Scotia, and
equipped a fleet at Boston. The enterprise failed. Promised ships
from England three years later, but disappointed, a second expedition
failed also.
At last, in 1710, Nova Scotia became an English colony. Its reduc-
tion was a duty assumed by the ministry, while, in truth, it was accom-
plished principally by colonists and colonial resources. Of the force
assembled at Boston, six ships and a corps of marines were, indeed,
sent from England; but the remainder, thirty vessels and four regi-
ments, were furnished by the four northern colonies. Strange it was
that Anne, the last of her family who occupied the throne, should have
permanently annexed to the English crown the colony and the "noble
fishery" which all of her line had sported with so freely and so disas-
trously.
I have barely glanced at events which occupy hundreds of pages of
documentary and written history. Whoever has examined the trans-
actions thus briefly noticed has ceased to wonder that the Stuarts were
so odious in New England. I know of nothing more disgraceful to
them, either as rulers or as private gentlemen, than their dealings with
Sir William Alexander, their own original grantee of Nova Scotia,
with the claimants under him, and with their subjects in America, who
bled, reign after reign, and throughout their reigns, to rid themselves
of the calamities entailed upon them by the treaty of St. Germains,
and who, in the adjustment of European questions, were defrauded of
the fruits of their exertions and sacrifices by the stipulations in the
treaties of Breda of London, and Ryswick.
The conquest of one French colony achieved, the ministry, yielding
to importunities from America, projected an enterprise for the reduc-
tion of Canada also — in which, as usual, the colonists were to bear a
large share of the actual burdens. After unnecessary, even inexcusa-
ble, delays on the part of those intrusted with the management of the
affair in England, a fleet and a land force finally departed from Boston
for the St. Lawrence. A more miserable termination to a military
operation of moment can hardly be found in history. "The whole
design," wrote the celebrated Lord Bolingbroke, "was formed by me;"
and he added, "I have a sort of paternal concern for the success of
it." But how could he have thought "success" possible?
The general appointed to command the troops was known among
his bottle-companions as "honest Jack Hill," and was pronounced by
the Duke of Marlborough to be "good for nothing." The admiral was
so ignorant — so inefficient generally — as to imagine that "the ice in
the river at Quebec, freezing to the bottom, would bilge his vessels,"
and that, to avert so fearful a disaster to her Majesty's ships, he "must
place them on dry ground, in frames and cradles, till the thaw!"
He was spared the calamity of wintering in ice one hundred feet in
thickness! On the passage up the St. Lawrence, eight of his ships
were wrecked, and eight hundred and eighty-four men drowned. But
for this, said he, "ten or twelve thousand men must have been left to
MISCELLANEOUS. 1137
perish of cold and hunger: by the loss of a Dart, Providence saved all
the rest." Of course, an expedition consisting of fifteen ships-of-war
and forty transports, of troops fresh from the victories of Maryborough,
and of colonists trained to the severities of a northern climate, and
sufficient for the service, under such chiefs, accomplished nothing but a
hasty departure.
Peace was concluded in 1713. Down to this period the French
fisheries had been more successful, probably, than those conducted by
the English or the American colonists.
Their own account is, indeed, that, at the opening of the century,
their catch of codfish was equal to the supply of all continental or
Catholic Europe. By the treaty of Utrecht, in the year just men-
tioned, England obtained what she had so long contended for, as her
statesmen imagined — namely, a supremacy in,. or monopoly of, the
fisheries of our seas.
On the coast of Nova Scotia, or Acadia, the French were utterly
prohibited from approaching within thirty leagues, beginning at the
Isle of Sable, and thence measuring southwesterly; while the uncon-
ditional right of England to the whole of Newfoundland, and to the
Bay of Hudson and its borders, was formallv acknowledged.
Yet, at Newfoundland, the privilege of fishing on a part of the east-
ern coast from Cape Bonavista to the northern point, and thence along
the western shore as far as Point Riche, was granted to the subjects of
Louis. It is to be observed that England reserved the exclusive use of
the fishing-grounds considered the best, and also the territorial juris-
diction; that the French were not permitted to settle on the soil, or
erect any structures other than fishermen's huts and stages; and that
the old and well-understood method of fishing was to be continued
without change.
By one party this adjustment of a vexed question was deemed
favorable to England and just to France. But another party insisted
that their rival, humbled oy the terms of the peace in other respects,
should have been required in this to submit to her own doctrines and
to an unconditional exclusion from the American seas. The oppo-
nents of the treaty did not view the case fairly. The cession of
Acadia was supposed to include the large island of Cape Breton; and,
this admitted, the French were to be confined to a region from which
their further, or at least considerable, interference with vessels wearing
the English fla^ was hardly possible: while, with regard to that very
region, it should be recollected that, though England claimed New-
foundland by the discovery of Cabot and the possession of Gilbert, no
strenuous or long-continued opposition had been made, at any time, to
all nations fishing, or even forming settlements, there; and that
France was entitled to special consideration, inasmuch as her estab-
lishments for conducting the fishery had been held without interrup-
tion for more than half a century, and had been recognised at tne
peace of Ryswick. Besides, she had captured several English posts
in addition, and, in fact, was in actual possession of a large part of the
island and its valuable appendages.
The party in opposition assailed the ministry in terms of bitter
denunciation. It was said that they "had been grossly imposed
upon," that they "luul directly given to France all she wanted," and
92909°— S. Do,-. S70. <5l-3. vol :j 83
1138 MISCELLANEOUS.
that the concessions were "universally and justly condemned." Such
are some of the words of reproach that appear in an official report.
In the political ferocity of the time, Lord Oxford was impeached ; and
it is among the charges against him that, "in defiance of an express
act of Parliament, as well as in contempt of the frequent and earnest
representations of the merchants of Great Britain and of the com-
missioners of trade and plantations," he, Robert, Earl of Oxford, and
Earl Mortimer,* had advised his sovereign that "the subjects of
France should have the liberty of fishing and drying fish in New-
foundland."
His lordship was committed to the Tower, and tried for high
treason; but such has been the advance of civilization and of the
doctrine of human brotherhood, that an act which was a flagrant
crime in his own age has become one honorable to his memory. The
great principle he thus maintained in disgrace, that the seas of British
America are not to be held by British subjects as a monopoly, and to
the exclusion of all other people, has never since been wholly dis-
regarded by any British minister, and we may hope will ever now
appear in British diplomacy to mark the progress of liberal principles
and of "man's humanity to man."
The loss of Nova Scotia caused but a temporary interruption of the
French fisheries. Within a year of the ratification of the treaty of
Utrecht, fugitive fishermen of that colony and of Newfoundland
settled on Cape Breton and resumed their business. I have remarked
that, as the English understood the cession of Acadia, "according to
its ancient boundaries," this island was held to be a part of it. The
French contended, on the other hand, that Acadia was a continental
possession, and did not embrace, of course, an island sufficient of itself
to form a colony. The settlement and fortification of Cape Breton
was therefore undertaken immediately, as a government measure.
Never has there been a better illustration of the facile character of the
French people than is afforded by the case before us. Wasting no
energies in useless regrets, but adapting themselves to the circum-
stances of their position, they recovered from their losses with ease
and rapidity. In 1721 their fleet of fishing- vessels was larger than at
any former period, and is said to have been quite four hundred.
Reference to the map will show that Cape Breton and Nova Scotia
are divided by a narrow strait. The meeting of vessels of the two flags
was unavoidable. The revival of old grudges, collisions, and quarrels,
was certain; but no serious difficulties appear to have occurred
previous to 1734.
* Robert Harley, Earl of Oxford, and Earl Mortimer, a distinguished minister of state
in the reign of Queen Anne, was born in 1661. "After the peace of Utrecht, the tory
statesmen, having no longer apprehensions of danger from abroad, began to quarrel
among themselves and the two chiefs, Oxford and Bolingbroke, especially, became
personal and political foes." Soon after the succession of George I, Oxford was im-
peached of high treason by the House of Commons, and was committed to the Tower.
The Duke of Marlborough was among his enemies. Bolingbroke fled to the continent.
Oxford was tried before the House of Peers in 1717, and acquitted of the crimes alleged
against him. He was the friend of Pope, Swift, and other literary men of the time.
He died in 1724. His son Edward, the second Earl of Oxford, and Earl Mortimer, was
also a great and liberal patron of literature and learned men, and completed the valu-
able collection of manuscripts which he commenced, and which is now in the British
Museum,
MISCELLANEOUS. 1139
In 1744, England and France were still again involved in war.
Among the earliest hostile deeds were the surprise of the English
garrison at Canseau, Nova Scotia, and the destruction of the buildings,
the fort, and the fishery there, by a force from Cape Breton, and the
capture at Newfoundland of a French ship, laden with one hundred
and fifty tons of dried codfish, by a privateer belonging to Boston.
These, however, are incidents of no moment, and may be disposed of
in a word.
The French fisheries had continued prosperous. They excited envy
and alarm. Accounts which are considered authentic, but which I am
compelled to regard as somewhat exaggerated, show that they
employed nearly six hundred vessels and upwards of twenty-seven
thousand men; and that the annual produce was almost a million
and a half quintals of fish, of the value of more than four and a half
millions of dollars. More than all else, the fishery at Cape Breton
was held to be in violation of the treaty of Utrecht; for, as has been
said, that island was in the never-yet-defined country, Acadia.
Robert Auchmuty,* an eminent lawyer of Boston, and judge of the
court of admiralty, when sent to England as agent of Massachusetts
on the question of the Rhode Island boundary, published a pamphlet
entitled "The importance of Cape Breton to the British nation, and a
plan for taking the place," in which he demonstrated that its con-
quest would put the English in sole possession of the fisheries of North
America ; would give the colonies ability to purchase manufactures of
the mother country of the value of ten millions of dollars annually;
would employ many thousand families then earning nothing ; increase
English mariners and shipping; cut off all communication between
France and Canada by the river St. Larwence, so that, in the fall of
Quebec, the French would be driven from the continent; and, finally,
open a correspondence with the remote Indian tribes, and transfer the
fur trade to Anglo-Saxon hands. All this was to follow the reduction
and possession of a cold, distant, and inhospitable island. Such was
the sentiment of the time.
In 1745, the conquest of Cape Breton was undertaken. Viewed as
a military enterprise, its capture is the most remarkable event in our
colonial history. Several colonies south of New England were invited
to join the expedition, but none would consent to waste life in a project
so mad; and Franklin, forgetting that he was "Boston-born," ridi-
culed it in one of the wittiest letters he ever wrote. In Massachusetts,
and elsewhere at the North, men enlisted as in a crusade. Whitefield
made a recruiting house of the sanctuary. To show how the images in
the Catholic churches were to be hewn down, axes were brandished
and borne about; and, while Puritanism aimed to strike a blow at
*Robert Auchmuty was of Scottish descent, but was educated at Dublin. He came
to Boston when young, and was appointed judge of the court of admiralty in 1703. In
1740, he was a director of the "Land Bank," or bubble, which involved the father of
Samuel Adams and many others in ruin. He was sent to England on important serv-
ice, and , while there, projected an expedition to Cape Breton. After his return, he was
appointed judge of admiralty a second time. He died in 1750. His son, Samuel, a
graduate of Harvard University, was an Episcopal minister in New York; and his
grandson, Sir Samuel Auchmuty, a lieutenant general in the British Army, and died
in 1822. The Auchmutys of the revolutionary era adhered to the side of the crown.
1140 MISCELLANEOUS.
Catholicism, the concerns of the present life were not forgotten. Fish-
ermen panted for revenge on those who had insulted them and driven
them from the fishing-grounds. Merchants, with Auchmuty's pamph-
let in their hands, thought of the increased sale and the enhanced
Erice of New England fish in foreign markets. Military officers who
ad served in Nova Scotia in the previous war were ambitious of fur-
ther distinction and preferment. Such were the motives.
William Vaughan, who was extensively engaged in the fisheries, and
whose home was near Pemaquid, in Maine, claimed that, while listen-
ing to the tales of some of his own fishermen, he conceived the design
of the expedition. Governor Shirley,* of Massachusetts, embraced
his plans, and submitted them to the general court. By this body
they were rejected. Kenewed by the governor, and insisted upon by
the merchants, they wTere finally adopted by the vote of the speaker,
who had acted previously in opposition, f
Instantly Boston became the scene of busy preparation.
William Pepperell, of Kittery, in Maine, and the son of a fisherman
of the Isles of Shoals, assumed command of the expedition. The
merchants of Boston furnished a large part of the armed vessels and
transports. The fishermen of Plymouth were the first troops to
arrive. Those of Marblehead and Gloucester, and those who had been
employed by Pepperell and Vaughan, followed in rapid succession.
Lumberers, mechanics, and husbandmen completed the force.
Louisbourg was the point of attack; for Cape Breton wTould fall
with its capital without another blow. This city wras named in honor
of the king. Twenty-five years and thirty millions of livres were
required to complete it. Its walls were built of bricks brought from
France. More than two hundred pieces of cannon were mounted to
defend it. So great was its strength that it was called the "Dunkirk
of America." It had nunneries and palaces, terraces and gardens.
That such a city rose upon a lone, desolate isle, in the infancy of
American colonization, appears incredible. Explanation is alone
found in the fishing enthusiasm of the period.
The fleet sailed from Boston in March. Singular to remark, of a
military order, Shirley's instructions required an ample supply of cod-
lines for use on the passage, so that the troops might be fed, as much
as possible, on the products of the sea.
A more undisciplined and disorderly body of men never disem-
barked to attempt the reduction of a walled city. The squadron com-
manded by Warren, and ordered by the ministry to co-operate with
Pepperell, arrived in time to share in the perils and honors of the siege.
The colonial fleet and the ships of the royal navy kept up a close
blockade. The colonists on shore, without a regular encampment,
lodged in huts built of turf and bushes. With straps across their
shoulders, they dragged cannon in sledges over morasses impassable
with wheels. Making jest of military subordination, they fired at
marks, they fished and fowled, wrestled and raced, and chased after
* William Shirley, Governor of Massachusetts, was a native of England, and was bred
to the law. He came to Boston about the year 1733, and was appointed governor in
1741. In 1755, he was commander-in-chief of the British forces in America. He ^;ed
in Roxbury, Massachusetts, in 1771.
f Mr. Oliver, a Boston member, broke his leg on his way to the house, and was not
present. His vote would have caused the rejection of the plan a second time. The
members deliberated under the first oath of secrecy administered to a legislative
assembly in America.
MISCELLANEOUS. 1141
balls shot from the French guns. Badly sheltered, and exhausted by
toil in mud and water, and by exposure in a cold and foggy climate,
fifteen hundred became sick and unfit for duty. Still the siege was
conducted with surpassing energy, with some skill, and courage seldom
equalled. Nine thousand cannon-balls and six hundred bombs were
discharged by the assailants. The French commander submitted on
the forty-ninth day of the investment. The victors entered the
"Dunkirk of the western world" amazed at their own achievement.
A single day's delay in the surrender might have resulted in discom-
fiture and defeat, and in extensive mortal sickness, since, within a few
hours of the capitulation, a storm of rain set in, which, in the ten days
it continued, flooded the camp-ground and beat down the huts which
the colonists abandoned for quarters within the walls.
Pepperell and his companions were the most fortunate of men. Even
after the fall of the city, the French flag (which was kept flying as a
decoy) lured within their grasp ships with cargoes of merchandise
worth more than a million of dollars. The exploit was commended in
the highest and loftiest terms. Even thirty years afterwards, Mr. Hart-
ley* said, in the House of Commons, that the colonists "took Louis-
bourg from the French single-handed, without any European assist-
ance— as mettled an enterprise as any in our history — an everlasting
memorial to the zeal, courage, and perseverance of the troops of New
England, "f
These are the mere outlines of the accounts of this extraordinary
affair.J Several of our books of history contain full details; but the
correspondence of Shirley, Pepperell, and Warren, which is preserved
in the Collections of the Historical Society of Massachusetts, as well as
the letters and narratives of subordinate actors, should be read in
connexion.
A century has elapsed. With the present condition of Cape Breton
in view, we almost imagine that we hold in our hands books of fiction
rather than the records of the real, when we read, as we do in Smol-
let, that the conquest of Louisbourg was "the most important achieve-
ment of the war of 1744;" in the Universal History, that " New England
* He was one of the British commissioners of peace in 1783.
f Horace Walpole calls Sir Peter Warren "the conqueror of Cape Breton, " and says
that he was ' ' richer than Anson, and absurd as Vernon. " Walpole also quotes a remark
of Marshal Belleisle, who, when he was told of the taking of Cape Breton, said, "he
could believe that, because the ministry had no hand in it." Walpole adds: "We
are making bonfires for Cape Breton, and thundering over Genoa, while our army in
Flanders is running away and dropping to pieces by detachments taken prisoners
every day. "
J April 4, 1748, a committee of the House of Commons came to the following resolu-
tion: "Resolved, That it is the opinion of this committee that it is just and reasonable
that the several provinces and colonies of Massachusetts Bay, New Hampshire,
Connecticut, and Rhode Island be reimbursed the expenses they have been at in
taking and securing to the crown of Great Britain the island of Cape Breton and its
dependencies. "
Mr. Burke remarks on this resolution that "these expenses were immense for such
colonies; they were above £200,000 sterling — money first raised and advanced on
1 heir public credit. "
William Bollan, collector of the customs for Salem and Marblehead, who married
a daughter of Governor Shirley, was sent to England to solicit the reimbursement
of these expenses. He obtained the sum of £183,649 sterling, after a difficult and
toilsome agency of three years.
He returned to Boston in 1748, with six hundred and fifty-three thousand ounces
of silver and ten tons of copper. This money was landed on Long Wharf, placed in
wagons, and carried through the streets mid much rejoicing.
1142 MISCELLANEOUS.
gave peace to Europe by raising, arming, and transporting four thou-
sand men," whose success " proved an equivalent for all the successes of
the French upon the continent;" and in Lord Chesterfield, that, "in
the end it produced peace," and that the noble duke at the head of
the admirality declared that, "if France was master of Portsmouth,
he would hang the men who should give Cape Breton in exchange."
The peace of Aix la Chapelle, in 1748, was dishonorable to England
at home and in her colonies. Of the adjustment of the questions
which relate to our subject, I may remark, that she not only restored
Cape Breton to France, and submitted to the humiliating condition of
sending two persons of rank and distinction to reside in that kingdom
as hostages until that island and other conquests should be actually
surrendered, but consented also to omit all mention of the right of
English subjects to navigate the American seas without being liable
to search and molestation, though that pretension on the part of the
French was one of the original causes or the war, as well as the basis
of the attacks made on Walpole's ministry. The results of the peace
to England were an immense debt, the barren glory of supporting the
German sovereignty of Maria Theresa, and the alienation of the
affections of the people of New England, who saw evidence that the
house of Hanover, like the Stuarts, were ready to sacrifice their
victories and their interests as "equivalents" for defeats and disasters
in Europe.
The fall of Louisbourg and the general hazards of war reduced the
number of French vessels employed in the fisheries upwards of four
hundred in a single year — to follow the received accounts; while, of
the one hundred which still remained, nearly the whole, probably,
made their fares at Newfoundland. This branch of industry was
destined to a slow recovery of prosperity; for, in 1756, we record still
another war between France and England.
Among the causes of hostilities on the part of the latter power, as
announced in the royal declaration, were the aggressions of the French
in Nova Scotia.* In that region, and on other coasts frequented by
fishermen, the war was attended with many distressing circumstances.!
Without space for details, I can only give a single example at New-
foundland, where M. de Tourney, in command of a French force of
four ships-of-the-line, a bomb-ketch, and a body of troops, landed at
the Bay of Bulls, destroyed the English settlements or Trinity and
Carbonear, captured several vessels, destroyed the stages and imple-
ments of fishery of the inhabitants, and, appearing off St. John, the
capital of the island, demanded and obtained its surrender.
Omitting notice of minor events, we come, in 1759, to the second
siege of Louisbourg. The force employed was immense, consisting of
twenty ships-of-the-line, eighteen frigates, a large fleet of smaller ves-
sels, and an army of fourteen thousand men. The success of this ex-
* Mr. Huskisson, in a speech in Parliament in 1826, said: "Sir, the war which
began in the year 1756, commonly called the Seven Years' War, was, strictly speaking,
so jar as relates to this country and to the Bourbon governments of France and Spain, a
war for colonial privileges, colonial claims, and colonial ascendency. In the course
of that war, British skill and British valor placed in the hands of this country Quebec
and the Havana. By the capture of these fortresses, Great Britain became mistress
of the colonial destinies of the western world. "
t The first conquests of British arms in America in the French war were the French
fort of Beau Sejour, in the Bay of Fundy, and two other posts in the same region.
Colonel Monckton, the conqueror, gave the name of Fort Cumberland to Beau S6jour.
MISCELLANEOUS. 1148
pedition caused great rejoicings throughout the British empire. The
French colors were deposited in St. Paul's, London, and a form of
thanksgiving was ordered to be used hi all the churches; while in New
England, prayers and thanksgivings were solemnly offered on the
domestic altar and in public worship.
General Wolfe commanded a detached body of two thousand troops,
and was highly distinguished.* He sailed from Louisbourg the follow-
ing year, at the head of eight thousand men, to "die satisfied" on the
Plains of Abraham. Well might he utter these words ! He was the
victor in one of the decisive battles of the world ! In the hour that the
British troops entered Quebec, the rule of America passed from the
Gallic to the Anglo-Saxon race. Between the death of a Jesuit father
and the breaking up of a French settlement in Maine, and the treaty of
Paris, was just a century and a half. We have seen how large a part
of the period was devoted to war. The contest was at an end. The
Gaul resigned the mastery of the New World to the Briton.f
In view of the PAST and the FUTURE, our fathers were "SATISFIED."
It remains to give a summary of the exertions of the northern colo-
nists to achieve the conquest of Canada. So numerous were the sea-
men and fishermen of New England on board of the ships-of-war, that
her merchants were compelled to navigate their own vessels with In-
* "Wolfe," says Horace Walpole, "who was no friend of Mr. Con way last year,
and for whom I consequently have no affection, has great merit, spirit, and alacrity,
and shone extremely at Louisbourg. "
t It may be said that Great Britain has hardly had a moment's quiet with Canada
since the day when Wolfe rose from a sick bed to "die happy" in planting her flag on
the walls of Quebec. We cannot stop to trace the reasons for this state of things, but
must confine our remarks to the course of events immediately following the conquest.
After the fall of Quebec and the reduction of the entire country, but before the final
cession, there arose an exciting controversy among some of the leading statesmen of the
time, whether Canada should be retained or restored to France, and the island of Gua-
daloupe. be added to the British dominions in its stead. There seems to have been a
prevalent fear thatynf Canada were kept, the colonies, rid of all apprehensions from
the French, would increase at an alarming rate, and finally throw off their dependence
on the mother country. A tract was published in support of this view, supposed to
have been written either by Edmund or William Burke, to which Franklin replied in
his happiest and ablest manner. Franklin's answer, in the judgment of Mr. Sparks,
"was believed to have had great weight in the ministerial councils, and to have been
mainly instrumental in causing Canada to be held at the peace."
In the course of the dispute, the charge was openly made that the treaty of peace
which restored to France the conquests of Belhsle, Goree, Guadaloupe, St. Lucia,
Martinique, and Havana, which guarantied to her people the use of the Newfoundland
fishery, and which retained an acquisition of so doubtful value as Canada, was the
result of corrupt bargaining.
Lord St. Vincent (a great naval captain, and hardly inferior to Nelson) was of the
opinion, even in 1783, that Canada ought not to be retained by England. Lord
Brougham, in his historical sketches, relates that, "when Lord Shelburne's peace
(1783) was signed, and before the terms were made public, he sent for the admiral, and,
showing them, asked his opinion. 'I like them very well,' said he, 'but there is a
great omission.' ' In what?' ' In leaving Canada as a British province.' 'How could
we possibly give it up?' inquired Lord Shelburne. 'How can you hope to keep it?'
replied the veteran warrior: 'with an English republic just established m the sight of
Canada, and with a population of a handful of English settled among a body of heredi-
tary Frenchmen, it is impossible; and, rely on it, you only retain a running sore, the
source of endless disquiet and expense.' 'Would the country bear it? have you for-
gotten Wolfe and Quebec?' asked his lordship. 'No: it is because I remember
both. I served with Wolfe at Quebec. Having lived so long, I have had full time for
reflection on this matter; and my clear opinion is, that if this fair occasion for giving
up Canada is neglected, nothing but difficulty, in either keeping or resigning it, will
ever after be known.' ' This remarkable prediction has been fulfilled, as every one
who is familiar with Canadian affairs will admit.
1144 MISCELLANEOUS.
dians and negroes. More than four hundred privateers were fitted out
during the contest to ravage the French West Indies and distress the
commerce of France in all parts of the world ; and it was asserted in
the House of Commons, without contradiction, that, of the seamen
employed in the British navy, ten thousand were natives of America.
For the attack on Louisbourg and Quebec alone, the number furnished
by the single colony of Massachusetts was five hundred, besides the
fishermen who were impressed.* A single example of the pecuniary
burdens of those who personally bore no part in hostile deeds will
suffice. A Boston gentleman of fortune sent one of his tax-bills to a
friend in London for his opinion, and received for answer that ' ' he did
not believe there was a man in all England who paid so much, in pro-
portion, for the support of government." I find it stated that the
amount assessed, in taxes of every kind, was nearly half of the payer's
income.
In this rapid notice of the events which preceded and led to the ex-
tinction of French power, I have not exaggerated the importance at-
tached to the fisheries. Few of the far-sighted saw, even in the distant
future, as we really see, in New France, and that half-fabulous coun-
try, Acadia, the building of ships to preserve and increase the maritime
strength of England, wheat-lands to rival our own, the great lakes
united with the ocean, and upon the St. Lawrence and St. John some of
the principal timber-marts of the world. Nay, among the wisest, the
Indian was forever to glide in his canoe on the waters — forever to roam
the dark, limitless forest. In a word, the vision of most was bounded
by the fur trade on the soil, and by the fish trade on the sea.
A single remark upon the influence of these events in producing the
Revolution, limited as is the plan of this report, cannot be omitted . In
the "paper stuff" emitted by Massachusetts to pay off " Phips's men,"
we see the germ of the "continental money." In the levying of taxes,
in the raising of troops, and the general independence of the colonial
assemblies during periods of war, we find explanation* of the wonder-
ful ease of the transition of these bodies into "provincial congresses."
In the many armies embodied and fleets fitted at Boston, we learn why
the people, familiar with military men and measures, almost reck-
lessly provoked collision with the troops sent by their own sovereign to
overawe and subdue them.
In truth, the prominent actors in the wars of 1744 and of 1756 were
the prominent actors in the struggle of freedom. Thus, with Pepper-
ell at the siege of Louisbourg were Thornton, who became a signer of
the Declaration of Independence; Bradford, who commanded a conti-
nental regiment; and Gridley, who laid out the works on Bunker's
Hill. On the frontiers of Virginia and in the west, in the last-men-
tioned war was the illustrious Washington . Engaged in one or both of
the French wars were Lewis, Wolcott, Williams, and Livingston, who
were signers of the Declaration of Independence; and Prescott, who
commanded on the memorable 17th of June. Among those who
* "The Massachusetts forces," in 1759, says Hutchinson, "were of great service.
Twenty-five hundred served in garrison at Louisbourg and Nova Scotia, in the room of
the regular troops taken from thence to serve under General Wolfe. Several hundred
served on board the king's ships as seamen, and the remainder of the six thousand five
hundred men voted in the spring served under General Amherst. Besides this force,
upon application of General Wolfe, three hundred more were raised and sent to Quebec
by the lieutenant governor, in the absence of the governor at Penobscot."
MISCELLANEOUS. 1145
became generals in the Revolution were Montgomery, who fell at
Quebec; Gates, the victor at Saratoga; Mercer, who was slain at
Princeton, and who, in the estimation of some, was second only to
Washington; Morgan, the hero of the "Cowpens;" Thomas, who
commanded in Canada after the fall of Montgomery; James Clinton,
the father of De Witt Clinton; Stark, the victor at Bennington; Spen-
cer, Israel and Rufus Putnam, Nixon, St. Clair, Gibson, Bull, Charles
Lee, and Durke. There were also Butler, the second in command at
Wyoming; and Campbell, a distinguished colonel; and Dyer, chief
justice of Connecticut ; Craik, director-general of the American hos-
pital, and the "old and intimate friend" of Washington; Jones, the
physician of Franklin; John Morgan, director-general and physician-
general of the army; and Hynde, the medical adviser of Wolfe, who
was with him when he fell, and accompanied Patrick Henry against
Lord Dunmore.
It was in Nova Scotia and Canada, and on the Ohio, then — at Port
Royal, Canseau, Louisbourg, Quebec, and in the wilds of Virginia —
and in putting down French pretensions, that our fathers acquired the
skill and experience necessary for the successful assertion of their own.
We pass to consider the terms of the treaty of 1763. In reply to
the propositions of the court of London, the French ministry, at the
commencement of the negotiations in 1761, consented to guaranty to
England the possession of Canada, provided England would restore
the island of Cape Breton, and confirm the right of French subjects
to take and cure fish in the Gulf of St. Lawrence, as well as on the
banks and in the island of Newfoundland. The fortifications of
Louisbourg, the court of Versailles, however, suggested should be
destroyed, and the harbor laid open for common use. These terms
seem to have been the ultimatum of France.
In reply, the British ministry insisted upon the unconditional ces-
sion of Canada, with all its dependencies, and the cession of Cape
Breton and all other islands in the Gulf of St. Lawrence. They
replied, further, that the important privilege of fishing and curing
cod on the coast of Newfoundland, as provided in the treaty of
Utrecht, they had not designed to refuse, but merely to connect with
stipulations relative to Dunkirk; and that the island of St. Peter
would be ceded to France upon four indispensable conditions: first,
that the island should not be fortified, or troops be stationed upon it,
under any pretext whatever; second, that, denying the vessels of
other nations all rights even of shelter, France should use the island
and its harbor for her own fishermen alone; third, that the possession
of the island should not be deemed to extend in any manner the
stipulations of the treaty of Utrecht — that is to say, "A loco Cap
Bonavista non cupato usque ad extremitatem ejusdem insulse septen-
trionalem, indique at latus occidentale recurrendo usque ad locum
Pointe Riche appellatum" — [From the place called Cape Bonavista
to the northern extremity of the said island, and thence running
westerly to the place denominated Point Riche;] fourth, that an
English commissary should be allowed to reside at St. Peter, and the
commander of the British ships-of-war on the Newfoundland station
have liberty, from time to time, to visit the island, to see that these
four conditions be duly observed.
With these propositions the French ministry were dissatisfied.
They desired rights of fishing in the Gulf of St. Lawrence, while, with
1146 MISCELLANEOUS.
regard to the cession of St. Peter, they remarked that it was so small
and so near Placentia, that, as a shelter, it would prove altogether
illusive, and serve to create disputes between the two nations, rather
than facilitate the fishery of the French subjects; and they referred
to the cession of Cape Breton, or of the island of St. John, as at first
suggested, but expressed a willingness to accept of Canseau instead
of either. Still, if the British ministry, for reasons unknown to
them, could not agree to the cession of Canseau, then they submitted
that Miquelon, an island, or, as they considered, a part of St. Peter,
should be included in the cession of the last-named island, for the
two joined together did not exceed three leagues in extent. They
said also that they would maintain no military establishment at
either of the places mentioned, except a guard of fifty men to support
police regulations; and that, as much as possible with so weak a
force, they would prevent all foreign vessels from sheltering, as
required; while they would limit their fishery on the coast of New-
foundland to the stipulations of the treaty of Utrecht provided it
should be understood that they could take and dry fish on the coast
of St. Peter and Miquelon. To the condition relative to the residence
of the commissary on the ceded islands they did not object.
In England opposition to any concessions to France was soon
manifest. The fisheries in the Gulf of St. Lawrence and on the
Banks of Newfoundland were held to constitute a great source of
wealth to France, and to be her principal nursery for seamen. The
voluntary offer of the ministry, therefore, to continue the privileges
enjoyed under the treaty of Utrecht, was viewed with great displeas-
ure. The fisheries, it was said, were worth more than all Canada.
The common council of London, as representing the commercial
interest of the kingdom, transmitted to the members of the House of
Commons from the city peremptory instructions on the subject of
the treaty, and particularly tnat the sole and exclusive right of
fishing in the American seas should be reserved to the subjects of the
British crown. Such, indeed, were the sentiments of a large party.
But their remonstrances were disregarded.
The negotiations were concluded at Paris February 10, 1763. The
articles of the treaty which relate to our subject are the following:
"The subjects of France shall have the liberty of fishing and drying
on a part of the coasts of the island of Newfoundland, such as it is
specified in the thirteenth article of the treaty of Utrecht, which
article is renewed and confirmed by the present treaty, (except what
relates to the island of Cape Breton, as well as the other islands and
coasts in the mouth and in the Gulf of St. Lawrence.) And his
Britannic Majesty consents to leave to the subjects of the Most
Christian King the liberty of fishing in the Gulf of St. Lawrence, on
condition that the subjects of France do not exercise the said fishery
but at the distance of three leagues from all the coasts belonging to
Great Britain, as well those of the continent as those of the islands
situated in the said Gulf of St. Lawrence. And as to what relates to
the fishery on the coasts of the island of Cape Breton, out of said
gulf, the subjects of the Most Christian King shall not be permitted
to exercise the said fishery but at the distance of fifteen leagues from
the coasts of the island of Cape Breton; and the fishery on the coasts
of Nova Scotia, or Acadia, and everywhere else out of the said gulf,
shall remain on the footing of former treaties."
MISCELLANEOUS. 1147
"The King of Great Britain cedes the islands of St. Pierre and
Miquelon, in full right, to his Most Christian Majesty, to serve as
shelter to the French fishermen; and his said Most Christian Majesty
engages not to fortify the said islands, to erect no buildings upon
them but merely for the convenience of the fishery, and to keep upon
them a guard of fifty men only for the police/7
These stipulations were severely attacked in Parliament and else-
where. "Junius," in his celebrated letter to the Duke of Bedford,
does not scruple to charge his grace with bribery. "Belleisle, Goree,
Guadaloupe, St. Lucia, Martinique, the fishery, and the Havana,"
said he, "are glorious monuments of your grace's talents for nego-
tiation. My lord, we are too well acquainted with your pecuniary
character to think it possible that so many public sacrifices should have
been made without some private compensations. Your conduct carries
with it an internal evidence beyond all the legal proofs of a court of
'justice."
Peace had hardly been concluded before the French were accused of
violations of the treaty. In 1764, a sloop-of-war carried intelligence to
England that they had a very formidable naval force at Newfound-
land; that they intended to erect strong fortifications on St. Peter's;
and that the English commodore on the station was without force suf-
ficient to prevent the consummation of their plans. The party
opposed to the ministry pronounced a warwithFrance to be inevitable,
unless the British government were disposed to surrender both New-
foundland and Canada. The alarm — which illustrates the spirit of
the time, and the sensibility of the English people — proved to be with-
out cause, since the French governor gave assurances that nothing had
been or would be done contrary to the letter of the treaty; that he
had but a single small cannon mounted, without a platform, designed
merely to answer signals to their fishermen in foggy weather; that
no buildings or works had been erected; and that his guard con-
sisted of only forty-seven men. It appeared, however, that the
French naval force was considerable, consisting of one ship of fifty
guns, another of twenty-six guns, and others of smaller rates.
Remarking that the French employed at Newfoundland two hun-
dred and fifty-nine vessels in 1768, and about the same number five
years later, we come to the war of our own Revolution. To induce
France to aid us in the struggle, our envoys were authorized, in
1776, to stipulate that all the trade between the United States and
the French West Indies should be carried on either in French or
American vessels: and they were specially instructed to assure his
Most Christian Majesty, that if, by their joint efforts, the British should
be excluded from any share in the cod-fisheries of America by the
reduction of the islands of Newfoundland and Cape Breton, and
ships-of-war should be furnished, at the expense of the United States,
to reduce Nova Scotia, the fisheries should be enjoyed equally between
them, to the exclusion of all other nations; and that one-half of New-
foundland should belong to France, and the other half, with Cape
Breton and Nova Scotia, to the United States.
We may smile at — we can hardly commend — our fathers for claim-
ing so large a share as this notable scheme devised; but the spirit
which conceived and was prepared to execute so grand an enterprise,
additional to the main purposes of their strife with the mother country,
is to be placed in strong contrast with the indifference manifested now
1148 MISCELLANEOUS.
about preserving our rights in the domains which they thus designed
to conquer.
In 1778, the project was renewed. In the instructions to Franklin,
he was directed to urge upon the French court the certainty of ruining
the British fisheries on the Banks of Newfoundland, and consequently
the British marine, by reducing Halifax and Quebec. Accompanying
his instructions was a plan for capturing these places, in which the
benefits of their acquisition to France and the United States were dis-
tinctly pointed out. They were of importance to France, it was said,
because "the fishery of Newfoundland is justly considered the basis
of a good marine;" and because "the possession of these two places
necessarily secures to the party and their friends the island and
fisheries." Among the benefits to the United States would be the
acquisition of "two States to the Union," and the securing of the
fisheries jointly with France, "to the total exclusion of Great Britain."
An alliance with France secured, a plan to reduce Canada at least
was accordingly matured and adopted Dy Congress in the course of the
last-mentioned year. It was the prevalent opinion in the United
States that the French ministry not only approved of this measure,
but that one of their objects in forming an alliance with us was to
regain a part or the whole of the possessions in America which they
had lost in previous wars, and thus regain their former position and
influence in the western hemisphere. But the fact is now well ascer-
tained that they were averse to the design against Canada, and that,
from the first, it was their settled policy to leave that colony and
Nova Scotia dependencies of England. Washington dissented from
Congress, and presented that body with a long letter on the subject.
He thought the plan both impracticable and unwise. Among his
reasons for the latter opinion was, that France would engross "the
whole trade of Newfoundland whenever she pleased," and thus secure
"the finest nursery of seamen in the world." The expedition was
never undertaken.
The treaty of commerce between France and the United States con-
cluded in 1778, and annulled by act of Congress in the year 1800 con-
tained the following provisions :
"ART. 9. The subjects, inhabitants, merchants, commanders of
ships, masters, and mariners of the states, provinces, and dominions
of each party, respectively, shall abstain and forbear to fish in all
places possessed, or which shall be possessed, by the other party.
The Most Christian King's subjects shall not fish in the havens, bays,
creeks, roads, coasts, or places which the said United States hold, or
shall hereafter hold; and in like manner the subjects, people, and
inhabitants of the said United States shall not fish in the havens, bays,
creeks, roads, coasts, or places which the Most Christian King pos-
sesses, or shall hereafter possess. And if any ship or vessel shall be
found fishing contrary to the tenor of this treaty, the said ship or
vessel, with its lading, proof being made thereof, shall be confiscated.
It is, however, understood that the exclusion stipulated in the present
article shall take place only so long and so far as the Most Christian
King or the United States shall not in this respect have granted an
exemption to some other nation.
"ART. 10. The United States, their citizens and inhabitants, shall
never disturb the subjects of the Most Christian King in the enjoy-
ment and exercise of the right of fishing on the Banks of Newfound-
MISCELLANEOUS. 1149
land, nor in the indefinite and exclusive right which belongs to them
on that part of the coast of that island which is designated by the
treaty of Utrecht, nor in the rights relative to all and each of the isles
which belong to his Most Christian Majesty — the whole conformable
to the true sense of the treaties of Utrecht and Paris."
Embarked in war with the greatest maritime power in the world,
France had need of all her seamen; and to secure for her ships-of-war
her fishermen absent at Newfoundland, her treaty of alliance with the
United States was kept secret for some weeks to give time for their
return. During hostilities, St. Pierre and Miquelon, if not almost
abandoned by fishing-vessels, were the scene of no incidents to
detain us.
At the peace in 1783, the whole subject of the French rights of fish-
ing was examined and arranged. As will be seen, several important
changes were made, and explanations exchanged, by the two contract-
ing powers. It may be observed, further, that the new fishing-grounds
acquired were thought less valuable than those which she relinquished,
though the privileges obtained by France, considered together, were
much greater than those provided in the treaty of 1763. The articles
which relate to the subject in the treaty^ and in the " declaration" and
"counter declaration," or separate articles, are as follows:
"ART. 2. His Majesty the King of Great Britain shall preserve
in full right the island of Newfoundland and the adjacent islands, in
the same manner as the whole was ceded to him by the 13th article of
the treaty of Utrecht, save the exceptions stipulated by the 5th article
of the present treaty.
"ART. 3. His Most Christian Majesty, [of France,! in order to pre-
vent quarrels, which have hitherto arisen between the two nations
of England and France, renounces the right of fishing, which belongs
to him by virtue of the said article of the treaty of Utrecht, from Cape
Bonavista to Cape St. John, [Point Riche,] situated on the eastern
coast of Newfoundland, in about fifty degrees of north latitude;
whereby the French fishery shaH commence at the said Cape St. John,
[Point Riche,] shall go round by the north, and, going down to the
western coast of the island of Newfoundland, shall have for boundary
the place called Cape Ray, situated in forty-seven degrees fifty
minutes latitude.
"ART. 4. The French fishermen shall enjoy the fishery assigned
them by the foregoing article, as they have a right to enjoy it by vir-
tue of the treaty of Utrecht.
"ART. 5. His Britannic Majesty will cede, in full right, to his Most
Christian Majesty the islands of St Pierre and Miquelon.
"ART. 6. With regard to the right of fishing in the Gulf of St. Law-
rence, the French shall continue to enjoy it conformably to the 5th
article of the treaty of Paris," [1763.]
In the "declaration" on the part of Great Britain, it is said that —
"In order that the fishermen of the two nations may not give cause
for daily quarrels, his Britannic Majesty will take the most positive
measures for preventing his subjects from interrupting, in any manner,
by their competition, the fishery of the French, during the temporary
exercise of it which is granted to them, upon the coasts of the island
of Newfoundland; and he will, for this purpose, cause the fixed settle-
ments which shall be formed there to be removed.
1150 MISCELLANEOUS.
"His Britannic Majesty will give orders that the French fishermen
be not incommoded in cutting the wood necessary for the repair of
their scaffolds, huts, and fishing-vessels. The 13th article of the
treaty of Utrecht, and the method of carrying on the fishery which
has at all times been acknowledged, shall be the plan upon which the
fishery shall be carried on there. It shall not be deviated from by
either party — the French fishermen building only their scaffolds,
confining themselves to the repair of their fishing-vessels, and not
wintering there; the subjects or his Britannic Majesty, on their part,
not molesting, in any manner, the French fishermen during their
fishing, nor injuring their scaffolds during their absence. The King
of Great Britain, in ceding the islands of St. Pierre and Miquelon to
France, regards them as ceded for the purpose of serving as a real
shelter to the French fishermen, and in full confidence that these
possessions will not become an object of jealousy between the two
nations, and that the fishery between the said islands and that of
Newfoundland shall be limited to the middle of the channel."
In the "counter declaration" on the part of France, it is said that —
"The King of Great Britain undoubtedly places too much confidence
in the uprightness of his Majesty's intentions not to rely upon his con-
stant attention to prevent the islands of St. Pierre and Miquelon from
becoming an object of jealousy between the two nations. As to the
fishery on the coasts of Newfoundland, which has been the object of
the new arrangements settled by the two sovereigns upon this matter,
it is sufficiently ascertained by the 5th article of the treaty of peace
signed this day, and by the declaration likewise delivered this day by
his Britannic Majesty's ambassador extraordinary and plenipoten-
tiary; and his Majesty declares that he is fully satisfied on this head.
In regard to the fishery between the island of Newfoundland and
those of St. Pierre and Miquelon, it is not to be carried on, by either
party, but to the middle of the channel; and his Majesty will give the
most positive orders that the French fishermen shall not go beyond
this line. His Majesty is firmly persuaded that the King of Great
Britain will give like orders to the English fishermen."
The fishery at St. Pierre and Miquelon, at the period of the French
revolution, was in a prosperous condition ; but tne confusion and dis-
tresses of civil war soon produced a disastrous change, and the fishing-
grounds were in a great degree abandoned for several years. In
1792, the number of men employed both at Newfoundland and Ice-
land was less than thirty-four hundred. The hostile relations with
England which followed the domestic commotions caused additional
misfortunes, until the peace of Amiens, in 1802.*
In the year 1800, by a treaty between the United States and France,
concluded at Paris, it was stipulated that "neither party will interfere
with the fisheries of the other on its coasts, nor disturb the other in the
exercise of its rights which it now holds, or may acquire, on the coast
of Newfoundland, in the Gulf of St. Lawrence, or elsewhere on the
* The fishing privileges which were continued to France were again the subject of
complaint at the peace of Amiens. The Right Hon. William Windham, in a speech in
Parliament, November 4, 1801, said that, by the terms of the proposed peace, "France
gives nothing, and, excepting Trinidad and Ceylon, England gives everything;" and
in the enumeration of cessions which ' ' tended only to confirm more and more the deep
despair in which he was plunged in contemplating the probable consequences of the
present treaty," he mentioned, "in North America, St. Pierre and Miquelon, with a
right to the fisheries in the fullest extent to which they were ever claimed."
MISCELLANEOUS. 1151
American coast northward of the United States. But the whale and
seal fisheries shall be free to both in every quarter of the world."
Napoleon, at this time, was "premier consul of the French republic."
The French cod-fishery at Newfoundland" was hardly re-established
at the peace of Amiens, when renewed hostilities with England occa-
sioned fresh calamities. Until the downfall of Napoleon, in 1814,
this branch of distant industry was pursued without vigor, and with
severe losses.
At the peace, a deputation of English merchants and others con-
nected with Newfoundland entreated their government to refuse to
France continued rights of fishing allowed under the treaties of 1713,
of 1763, and of 1783. But the British ministry, aside from general
considerations, regarded the restoration of the Bourbons as an event
of momentous consequence to Europe, and confirmed to France all
her foreign possessions exactly as they stood at the commencement
of the war. The Newfoundland colonists have never ceased to com-
plain of the renewed competition which this policy required them to
meet. They contend that, whatever was the opinion in 1783, the
fishing-grounds along the shores from Cape Ray to Cape John, which
are enjoyed by the French to the exclusion of all others, are, in the
judgment of every person competent to decide, the very best at
Newfoundland; and they further insist, by reason of the advantages
possessed by France and the United States, that the English deep-
sea fishery has been abandoned. These and similar statements are
to be found hi official papers and in private letters, and are never
omitted by the colonists in their conversations on the subject of their
fisheries.
It may not be unkind to reply that the French and American fish-
ermen are industrious, and that there need be no other explanation
of their success.
The insertion here of the thirteenth article of the treaty of Paris in
1814 is not necessary. As already intimated, the French were con-
firmed in the rights which they possessed previous to the war. The
eleventh article of the treaty of Paris in the following year, at the
general pacification in Europe, reiterates the confirmation. Refer-
ence, therefore, to the articles of the treaty of 1783, to the "declara-
tion" and "counter declaration" recorded at length in the proper
connexion, will afford a perfect knowledge of the present extent,
limitations, and localities of the fishing-grounds of France hi the
American seas.
With peace came prosperity. In 1816, the French tonnage at New-
foundland was nearly thirty-one thousand; the amount in 1823, how-
ever, appears to have been reduced nearly one-half. It rose suddenly,
and in a single year, to about thirty-seven thousand, and, increasing
annually, except in 1825, was upwards of fifty thousand in 1829
In the succeeding ten years the increase was only five thousand.
The number or vessels employed in 1841 and two years later was
about four hundred; and the number of seamen in 1847 was estimated
at twelve thousand. These facts, on which I rely, afford proof that
the Newfoundland fishery is now prosecuted with energy and success.
To follow the statements of the English colonists which are to be
met with in official documents, the number of men engaged at St.
Pierre and Miquelon, and on various parts of the coast between Cape
Ray and Cape John, should be computed at twenty-five thousand.
1152 MISCELLANEOUS.
There is the same authority for estimating the annual catch of fish at
one million of quintals.
I regard the views of M. D. L. Kodet, of Paris, as far more accu-
rate. He states that, "without Tier colonies,'" the cod-fishery would
"become nearly extinct;" that these colonies " on ly consume annually
eighty thousand quintals;" that foreign nations "scarcely take a fifth'
of the catch; and that "it is by submitting to the exorbitant duties,
which at any moment may be changed into prohibition, that the
precarious and trifling market in Spam is retained." A very large
proportion, then, of the produce or the cod-fishery is consumed in
France; and it is a sufficient refutation of the estimate of the English
colonists to say that the quantity remaining after deducting the
exports, as computed by M. Kodet, is not wanted in that kingdom.
The number of vessels since the peace of 1815 has not exceeded
four hundred, except in the single year of 1829; and, assuming that
the statement in discussion is correct, these vessels employed an
average of sixty men each, or double the number which, as all persons
familiar with the business well know, is necessary on board as fisher-
men, or on shore as "shoresmen." The same fallacy exists as to
the catch; for a million of quintals for four hundred vessels is twenty-
five hundred quintals to each, or considerably more than double the
mean quantity caught by the vessels of any flag in the world. To
allow liberally for the catch of the "boat fishery," and to consider
"boat fishermen" as included in the estimate, I cannot think that
the figures of the English colonial documents are accurate by quite
one-half. If further evidence of exaggeration be wanted, it may be
found in the grave assertions of the same writers that our own vessels
fishing in the waters of British America are manned with upwards of
thirty-seven thousand men, and catch in a year one and a half millions
of quintals of fish!
The statements thus refuted are of consequence, as will be seen in
another part of this report.
Equally exaggerated are the averments that the French and Ameri-
can fisheries, bolstered up by bounties and prohibitions," have "as
completely swept" the English flag from the Grand Bank of New-
foundland "as if Lord Castlereagh had conceded the exclusive right"
in 1814, or as if the "combined fleets of France and America had
forced it" to retreat to "the in-shore or boat fishery;" and that the
" French and Americans, having taken possession of the Grand Bank,"
have, by so doing, "extended lines of circumvallation and contra-
vallation round the island, preventing the ingress or egress of fish to
and from the shore, and, according to the opinions of those best
qualified to judge, greatly injuring the in-shore fishery — the only
fishery left to British subjects, and that only to a portion of the
island."
Deferring a full answer to these complaints until the subject of
colonial allegations relative to our own aggressions and violations of
our treaty rights are considered in detail, the only answer necessary
to be made here is, simply, that the "ingress" and "egress of fish to
and from the shore" lias not entirely ceased, as yet, since the export
of codfish from the English Newfoundland fishery amounts to nearly
one million of quintals annually ! The lamentations of a people who,
though "completely swept" from their own outer fishing-grounds,
still show, by their own returns of the customs, that they nave sold,
MISCELLANEOUS. 1153
between 1841 and 1849, both inclusive, a mean quantity of nine hun-
dred and sixty-seven thousand quintals (to be exact in the statistics)
annually, may well excite a smile.
That the charge against the French fishermen of trespassing upon
the fishing-grounds reserved to British subjects is true, to a considera-
ble degree, may be admitted. Her Majesty's ships-of-war have some-
times found them aggressors, not only at Newfoundland, but on the
coast of Labrador. Troubles from this source occurred in 1842; and
in the following year the British sloop-of-war Electra, in endeavoring
to drive off a vessel fishing on the southwesterly shore of Newfound-
land, unfortunately killed one man and wounded others on board of
her. It appears that the Electra was on the station for the purpose of
enforcing the treaty stipulations ; that one of her boats gave chase to
the French vessel, and, not being able to come up with her, fired across
her bows for the purpose of bringing her to ; that, not having accom-
plished this object, another shot was fired over her, which, Droving as
ineffectual as the first, was followed, by order of the officer in charge,
by a shot aimed directly on board, and producing the results men-
tioned. The affair created much excitement at the moment. A
French frigate arrived at the capital to demand explanations, and the
governor of Newfoundland immediately sent a despatch to the min-
istry "at home," stating the facts of the case. The offence, in this
instance, consisted merely in taking bait on the shore not within the
limits prescribed for vessels of the French flag by the treaties of
1713 and of 1783. The officer in command of the Electra's boat is
said, by the colonists, to have acted in accordance with the rules of
the service ; but a contrary opinion was expressed by the French.*
The "Bultow" system of fishing is clearly in violation of treaty
stipulations. Prior to the peace of 1815, there is good reason to be-
* The French fishermen suffered much at the hands of the British officers who
guarded the coasts in 1852. A colonial newspaper contained the following account:
' 'It appears that the Charles, under the command of Jamea Tobin, esq., commissioner
of fisheries, has been doing service at Belleisle, where, on the 29th ultimo, there were
about one hundred French fishermen, with about thirty batteaux, who were just com-
mencing their annual invasion of British rights. Mr. Tobin immediately ran down to
H. M. brig Sappho to obtain help, as James Finlay had not then arrived with his crew.
His messenger had to travel seven miles over land on the night of that day, and by half-
past eleven of the same night returned with an intimation from Capt. Cochran that he
would land the required force by daylight on the following day in Black Joe Cove,
whither Mr. Tobin then proceeded with the Charles, and found that the Frenchmen
had been already routed by the men of the Sappho, and were running in their batteaux
under reefed foresail and mainsail — the wind blowing half a gale at the time. The
Charles escorted them round the island of Belleisle, and then left them, without one
fish, to make the best of their way in a pelting storm to Quirpon."
Near the close of the season, another colonial newspaper stated that —
"The Vigilance brig-of-war vessel, on the coast of Newfoundland, has damaged the
French fisheries very much. Fifty vessels of the fleet in the straits of Belleisle will
return home, having eighty thousand quintals short of last year's catch."
These proceedings, it would seem, were authorized by the ministry, under the gen-
eral plan adopted in 1852 to prevent encroachments on the fishing-grounds. Admiral
Seymour, in a letter to the governor of Newfoundland, remarks that —
''Her Majesty's government are so desirous that ample means should be given to
check the numerous encroachments which have been represented to have taken place
in the last years at Belleisle and the coast of Labrador, that I am further authorized
to hire and employ some small schooners, for which I am to provide officers and men,
for the purpose ot carrying the object of her Majesty's government fully into effect on
the coast of Labrador, under the direction of the captain of the ship ox steamer there
employed."
92909°— S. Doc. 870, 61-3, vol 3 34
1154 MISCELLANEOUS.
lieve that both French and English fished from the decks of their
vessels, without coming to anchor, and without lines moored with
several thousand baited hooks attached thereto, as at present. There
is much difference of opinion as to the degree of injury to the shore,
or English fishery, on this account ; but since the question is one to be
settled entirely by the "declaration" in 1783 — namely, that "the
method of carrying on the fishery which has at all times been ac-
knowledged shall be the plan upon which the fishery shall be carried
on there," and that "it shall not be deviated from by either party,"-
there need be no inquiry into any other matter. The "plan" of the
"Bultow" had not at all times been acknowledged" in 1783, and it is
therefore an aggression.
The last complaint of the English colonists which I shall notice is,
that ' 'the exclusive right of fishing exercised by the French from Cape
Ray to Cape John is a usurpation." The ' 'declaration" just referred
to was framed expressly that " the fishermen of the two nations
may not give cause for daily quarrels;" and different fishing-grounds
were assigned to each, to accomplish an object so desirable to both.
Moreover, the British ministry engaged to remove "the fixed settle-
ments" of their own people within the limits prescribed to the French,
and actually issued orders for the purpose soon after the conclusion
of the treaty. The intention was, I cannot doubt, that vessels of the
two flags should never pursue the cod on the same coasts; and unless
the words quoted convey this meaning, they mean nothing. The
experience of more than a century had shown that, under any other
arrangement, "daily quarrels" would be inevitable. I submit, with
deference, that the interest of all parties imperatively requires that
people of different origin, language, and religion, and of national
prejudices almost invincible, should be kept apart.
The French government wisely protect their fisheries by bounties —
wisely consider them of national importance.* Without its aid, they
* [TRANSLATION.]
The National Assembly of France has passed a law of the following tenor relative to
the great maritime fisheries.— June 24th, 9th and 22d July, 1851.
CAP. I. — COD-FISHERY.
From the 1st January, 1852, to the 30th June, 1861, the bounties granted for the en-
couragement of the cod-fishery will be fixed as follows:
1st. — Bounty on the outfit —
Fifty francs per man of the crew employed at the fishery, either on the coast of New-
foundland, at St. Peter's and Miquelon, or on the Grand Bank, and possessing a drying-
place.
Fifty franca per man of the crew employed in the Iceland fishery, without a drying-
place.
Thirty francs per man of the crew employed at the fishery on the Grand Bank of New-
foundland, and without a drying-place.
Fifteen francs per man of the crew employed at the Dogger Bank fishery.
2d. — Bounty on the produce of the fishery —
Twenty francs per metric quintal of dry codfish, the produce of the French fishery,
to be shipped, either direct from the fishing settlements or from the ports of France, for
the markets of the French colonies of America and India, or for the settlements on the
west coast of Africa, and other transatlantic countries — provided, always, that the fish
be landed at a port where there is a French consul.
Sixteen francs per metric quintal of dry codfish, the produce of the French fishery,
shipped either direct from the fishing settlements or from the ports of France, and des-
tined for the countries of Europe and the foreign states on the shores of the Mediterra-
nean, Sardinia and Algeria being excepted.
Sixteen francs per metric quintal of dry codfish, the produce of the French fishery,
that may be imported into the French colonies of America and India, and other trans-
MISCELLANEOUS. 1155
admit that "the cod-fishery could not exist." This fishery, says
M. Senac, ' 'is a productive industry; and it furnishes more than a fifth
part of the whole number of our seamen, and by far the best portion of
them. There is no cheaper, better, or more useful school for the forma-
tion of seamen for the navy, and none is more capable of extension and
development. The doubling of the consumption and exportation of the
produce of the fisheries would furnish our fleets with twelve thousand
more seamen"
We have seen that when, in 1778, France embarked in our revolu-
tionary struggle, her fishermen, absent at Newfoundland, were recalled
to enter her ships-of-war. The same reliance is placed upon them
now. War was apprehended in 1841, and M. Thiers followed the
example of the statesmen referred to; and M. Rodet affirmed that,
''without the resources which were found in the sailors engaged in the
fisheries, the expedition to Algiers could not have taken place"
These reasons are not only sufficient to justify, but to demand,
national encouragement. But it may be urged, in addition, that the
open or deep-sea cod-fishery differs from almost every other employ-
ment; that in war it is nearly or quite destroyed; that in peace it
cannot be pursued for more than four or five months in a year; that
often skill and industry are insufficient to insure good fares ; and that,
when success attends severe toil and exposure, the fishermen barely
subsist. The effects of a " bad catch " are, indeed, sad and calamitous.
The disasters of 1847 afford a recent and a forcible illustration. In
that year the French cod-fishery proved a failure. The quantity of
fish caught was scarcely a sixth part of that of former seasons; and the
fishermen, discouraged, abandoned the business as early as the middle
of August. The labor of the summer and the expenses of repairs and
of outfits lost, the actual want of food and clothing until another year
came round was alone prevented by the bounty allowed by the gov-
ernment.
The manner of fishing is now the only topic that need claim atten-
tion. It is to be observed that the principal fishing-grounds are three,
and that on each there is a difference in the mode of operations and in
the size of the vessels. First, the fishery on the coasts of Newfound-
land, which has always been considered the most important, as being
more certain and employing the greatest number of men. The
vessels are of all sizes — from thirty to two hundred, and even three
hundred tons. The latter size is, however, rare. When the vessel
arrives on the coast, which is generally early in June, she is dis-
mantled. Her boats, with two men and a boy in each, are sent out
every morning, when the weather will permit, to fish until night. On
the return in the evening, the fish taken are split, salted, and put in
"benches" or piles; remaining in piles a few days, they are "washed
out " and dried until they are fit to ship. These processes are repeated
from day to day until the fare is completed, or the season has passed
atlantic countries, when said fish are exported from the ports of France without having
been there landed.
Twelve francs per metric quintal of drv codfish, the produce of the French fishery,
shipped for Sardinia and Algeria, either direct from the fishing settlements or from the
ports of France.
Twenty francs per metric quintal of the hard roe of codfish, the produce of the
French fishery, brought into France by their fishing- vessels.
Note. — One kilogramme is equal to 2 Ibs. 3Joz.; 220$ Ibs. equal tol quintal mctrique
(aay metric quintal).
1156 MISCELLANEOUS.
away. Towards the close of September, fishing is suspended, and
the vessels depart for France or the West Indies.
The Grand Bank fishery is pursued in vessels of between one and
two hundred tons burden, with two strong chaloupes, or boats, to each.
From sixteen to twenty men compose a crew. The vessels proceed
first to St. Pierre, land the shore-fishermen and "curers," and thence
take position on the banks, anchoring in seventy or eighty fathoms of
water. Everything in readiness the chaloupes are launched and sent
out at night to place the "ground-lines," to which are attached some
four or five thousand hooks. When not too boisterous, these lines are
examined every day, and the fish attached to the hooks split, salted,
and placed in the hold of the vessel. Meanwhile, the fish caught on
board by the men not assigned to the boats are treated in the same
way. The first fare is usually secured in June, and carried to St. Pierre
to be dried. .The second fare is cured at the same place; but the
third — if fortunately there be another — is commonly carried to France
"green."
This fishing is difficult and dangerous. It requires expert and dar-
ing men. It is prosecuted in an open, rough, and often a stormy sea,
and frequently involves the loss of boats and their crews.
The third fishery, at St. Pierre and Miquelon, is similar, in some
respects, to that between Cape Ray and Cape John, on the coast of
Newfoundland. Boats, instead of vessels, are, however, employed in
it. The boats of the two islands are between three and four hundred
in number, and require two men to each. They go out in the morning
and return at night. Thus, as in all shore-fisheries, the fishermen
always sleep at their own homes. As this is the only business of the
islands nearly all the men, women, and children are engaged in catch-
ingor curing. The season opens in April, and closes usually in October.
We have seen the importance attached by France to her immense
American domains and with what pertinacity she maintained her pre-
tensions to the monopoly of the fishing-grounds. It remains to speak
more particularly than has yet been done of the two lone, bare, and
rocky islands that remain to her as monuments of the vicissitudes of
human condition and of national humiliation.
The situation of St. Pierre and Miquelon commands the entrance of
the Gulf of St. Lawrence. The growth of wood is insufficient even
for fuel. They produce no food, and the inhabitants are dependent on
France and other countries for supplies. The population of St. Pierre
in 1847 was 2,030, of which about one-quarter was "floating" or non-
resident. The population of Miquelon at the same time was 625.
There are several Catholic churches and schools, priests, monks,
and nuns. In 1848, a hospital, sufficiently commodious to receive
upwards of one hundred sick persons, was erected. The dwellings are
of wood. The government-house is of the same material, and plain
and old-fashioned. The streets are narrow, short, and dirty. The
official personages are a governor, a commissary or minister of marine,
a harbor-master, and some inferior functionaries. The military, lim-
ited by treaty to fifty men, consist of about thirty gens d'armes. Upon
the station is a single armed ship, though other armed vessels are
occasional visiters. The present light-house was erected in 1845, at a
cost of 80,000 francs, and, well built of brick, is a substantial edifice.
Such are the TWO ISLANDS — TWO LEAGUES IN EXTENT — which
remain to the power that once possessed the whole country bordering
MISCELLANEOUS.
1157
on the Mississippi, the limitless regions penetrated by the St. Law-
rence— Acadia, from Canseau, in Nova Scotia, to the Kennebeck river,
in Maine ; the island of Cape Breton ; and the hundred other isles of the
bays of the northern and eastern possessions.
French cod-fishery.
Years.
No. of
vessels.
Toncag*.
Number of
men.
Quintals of
fish.
Value.
1504
1527
1°
1577
150
1578
150
1615
100
1721
400
1744. .
564
27,500
1,441,500
1745
100
1708
2i9
. 24,420
9,722
200,000
$8G1.7'J.i
1773
264
24,996
10,128
1774... -. ...
15,137
1786
7,000
426, 400
1787
6,000
128,590
1816
30.954
8,108
1823
1S4
16,2.r>8
3,655
1S24
348
36, 999
6,672
1825
336
35, 172
6,311
1826
341
38,038
7,088
1827
387
44.8C8
8,238
1828
381
45,0'J4
7,957
1829
414
50,574
9,428
1830
377
45,036
8,174
1831
302
35,180
6 243
300,000
1833
10,000
1834....
10,000
1835
300,000
1839
54,995
11,499
1841
400
11,900
1843 ,
400
1847
12,000
450,000
COD-FISHERY OF SPAIN.
Participating in the excitement which prevailed in Europe on the
discovery in the American seas of varieties of fish not previously
known or used in the fasts of the Roman church, Spain was an early
competitor with France and England. Vessels of her flag were
certainly at Newfoundland as soon as the year 1517. Sixty years
later, the number of her vessels employed in the fishery there is
estimated at one hundred. The number rapidly diminished. Syl-
vester Wyat, of Bristol, England, who made a voyage to the St.
Lawrence and Newfoundland in 1593, found only eight Spanish
ships in a fleet of upwards of eighty sail of French and English vessels.
From the remarks of Smith — who became the father of Virginia — it
would seem that in the early part of the seventeenth century, the
Spanish fishery was pursued with greater vigor than at the time last
mentioned. But the greater wealth to be acquired in the gold
regions of South America soon lured the Spaniards from an avocation
of so great toil, and of so uncertain rewards. No controversy between
Spain and England as to their respective rights to the fishing grounds,
ever arose.
Spain retired from pur waters in peace, and at her own pleasure.
Little is heard of her in connextion with our subject for quite a cen-
tury, and until the peace of 1763. Her claim — resting on discovery —
ever vague and uncertain at the north, had become almost as obso-
1158 MISCELLANEOUS.
lete as that of the King of England to the title of King of France.
Still, in the definitive treaty concluded at Paris, she formally
renounced "all pretentions which she has heretofore formed, or
might form, to Nova Scotia or Acadia, in all its parts, and guaranties
the whole of it, and with all its dependencies," and ceded and guar-
antied to England, "in full right, Canada, with all its dependencies,
as well as the island of Cape Breton, and all other islands and coasts
in the gulf and river of St. Lawrence; and, in general, everything
that depends on the said countries, lands, islands, and coasts, with
the sovereignty, property, possession, and all rights acquired by
treaty or otherwise." With this treaty the history of the Spanish
fishery in America terminates.*
COD-FISHERY OF PORTUGAL.
An account of this fishery may be embraced in a single paragraph.
If materials exist by which to ascertain its progress and final extent, I
have not been able to find them.
Portuguese vessels were at Newfoundland as early as those of
Spain; and in 1577, the number employed there is estimated at fifty.
Tnese two facts comprise the substance of my information upon the
subject, except that Portugal, like Spain, soon abandoned all atten-
tion to the claims derived from the voyages of her navigators to the
northern parts of our continent, and devoted her energies and
resources to colonization in South America, and the acquisition of
wealth hi the mines of Brazil, f
PART II. — NEWFOUNDLAND — NOVA SCOTIA — CAPE BRETON — PRINCE
EDWARD ISLAND — MAGDALENE ISLANDS — BAY OF CHALEURS —
LABRADOR — NEW BRUNSWICK.
ENGLISH COD-FISHERY — NEWFOUNDLAND.
Newfoundland is the oldest colony of England in America. It is
said that in the public library of Venice there is a map, constructed by
Andrea Bianco, in 1436, which authorizes the conjecture that it was
known to fishermen before the voyage of Cabot, in 1497. The story,
to state its substance in a word, is, that the island Scorafixa, or Stoxa-
* Spain relinquished her rights at the peace of 1763, with reluctance, though she had
long ceased to exercise them. A letter of Sir Joseph Yorke is quoted in the corre-
spondence of Horace Walpole, in which it is said: By what I hear from Paris, my
old acquaintance, Grimaldi, is the cause of the delay in signing the preliminaries,
insisting upon points neither France nor England would ever consent to grant, such
as the liberty of fishing at Newfoundland; a point we should not dare to yield, as
Mr. Pitt told them, though they were masters of the Tower of London."
tThe rivers and coasts of Portugal abound in fish. But the fisheries are neglected
by the government. The whole number of sailors and fishermen who belonged to
the kingdom in 1826, was only 18,700. I find in an official document a statement
which snows that during the twenty-four years ending in 1825, the quantity of dry
codfish imported into Portugal was seven million five hundred and twenty thousand
quintals, of the value of more than thirty-nine millions of dollars! As late as the
year 1839, certainly, the government pursued the policy of levying a tax or duty on
the produce of the domestic or coast fishery; a fact which enables us to account for the
miserable condition of the kingdom, as regards its maritime strength and resources.
MISCELLANEOUS. 1159
fixa, on the map, and the island of Newfoundland, are identical, be-
cause the codfish is called stock-fish in the northern languages.
The English resorted to Iceland* for the cod, previous to the year
1415, but there is no account of their fishing at Newfoundland prior
to 1517. Some writers suggest that the French commenced at the
same time. But the fact, generally admitted, that ships from Eng-
land, France, Spain, and Portugal, to the number of fifty, were em-
ployed in 1517, is alone sufficient to show that the fishing grounds had
been visited for several years. Indeed, to consider that the French
went to Newfoundland for the first time in 1504, and that in thirteen
*The Icelanders, at the present time, derive their chief subsistence and profit from
the sea. They live principally on the shores and harbors, where fish are plentiful.
The fishing season commences in February, and closes in May. The fishermen wear
a dress of leather, rubbed over with train-oil until it is nearly impervious to water.
They fish with line and hooks, baited with shell-fish, or pieces of flesh. They have
lately become acquainted with nets, and use them in the herring fishery. When they
leave the shore they take off their hats, and offer up a petition for success, and recom-
mend themselves to the Divine protection in a prayer or hymn. They then row to
the fishing grounds, and continue there all day. In 1804 the total number of boats
employed was twenty-one hundred and sixty-three, namely: 208, with eight and ten
oars; 1,068, with four and six oars; and 887 of smaller size. Bessestaar is the seat of
a good academy, with a collection (in 1826) of fifteen hundred volumes, which, says
Malte Brun, "is no doubt the most northern library in the world." Iceland, he
observes, "produces no salt; but the water of the surrounding sea is fully as saline as
that of the Mediterranean. The salt which the Icelanders obtain from it gives a bluish
tint to fish."
Reikiavik, according to another writer, was selected as the seat of government "for
the convenience of its harbor, and for the gravel beach — a thing of rare occurrence in
Iceland." The exports of fish from Reikiavik, in 1806, were much larger than from
any other place.
The Dutch cod-fishery is of importance.
[Translation.]
STATE PAPER OP THE KINGDOM OF THE NETHERLANDS.
No. 13. — Act of 6th March, 1818, for the encouragement of the Iceland cod-fishery.
We, William, by the grace of God King of the Netherlands, Prince of Orange Nassau,
Grand Duke of Luxembourg, &c.
Be it known to all those who shall see these presents, or hear them read, greeting:
Considering that the little, or Iceland, cod-fishery has been continually supported
and encouraged by premiums put of the public treasury in behalf of those who carry
on this branch of industry, so important to the prosperity of the country;
And that the reasons which, in former times, pleaded for the allowance of those
premiums, have still, at the present time, their full force and weight:
We have therefore heard our council of state, and, with the advice of the States
General, do hereby decree and direct:
ARTICLE I. There shall be paid out of the public treasury a premium of five hun-
dred guilders for every voyage of each ship, which, for account of our subjects, is fitted
out in this kingdom, and shall sail from one of its ports during the years 1818, 1819,
and 1820, for Iceland to carry on the little fishery — that is, the cod-fishery — between
the sixty-fifth and sixty-seventh degrees of north latitude.
ART. II. In cases where particular circumstances have occurred during the voyage,
we reserve to ourselves the regulation of the premium in such a manner as those cir-
cumstances may deem to require.
We order and command that the present shall be inserted in the State paper, and
that all ministerial departments and authorities, colleges and officers, are charged
with the due execution of these presents.
Given in Gravenhague, (Hague,) the 6th March, in the year 1818, in the fifth of our
reign.
WILLIAM.
By the King: A. R. Falk.
1160 MISCELLANEOUS.
years, and in the infancy of distant and perilous voyages, their
adventures had attracted the attention of three other nations to the
extent just stated, is to allow an increase of flags and of vessels so
rapid as to still require explanation, without a knowledge of the fishing
enthusiasm of the period. Besides, some forty or fifty houses for the
accommodation of fishermen were built at Newfoundland as early as
1522.
A letter is preserved in the Memoir of Sebastian Cabot, written by
John Rut to Henry the Eighth, and dated at St. John, Newfoundland,
August 3, 1527, which seemingly warrants the conclusion that the
English fishery, at that time, was of little consequence, since he states
that he found "eleven saile of Normans, and one Brittaine, and two
Portugall barkes" in that harbor, but makes mention of no others,
and proposes to sail along the coast to "meete" the only vessel of his
own flag known by him to be in that region.
An effort to found a colony was made, however, hi 1536, under the
auspices and at the expense of Mr. Hore, a wealthy merchant of Lon-
don. A company of one hundred and twenty persons was formed, of
whom thirty were gentlemen of education and character. They ar-
rived at Newfoundland, but accomplished nothing. Many perished
of starvation. The survivors fed on the bodies of the dead, and
finally reached England.
Twelve years later, we find that the fishery was considered of great
national importance, and worthy of legislative encouragement. Thus,
an act was passed by Parliament imposing severe penalties on persons
eating flesh on fish-days. The punishment for the first offence was a
fine of ten shillings, ten days' imprisonment, and abstinence from meat
during the same time; while for the second, these inflictions were
doubled. The sick and aged, to whom flesh was necessary, were ex-
empted on obtaining licenses from the ecclesiastical authorities.*
Another act, of 1548, and remarkable as the first of England which
relates to America, had special reference to Newfoundland, and to the
abuses that existed there. Its preamble is quaint. "Forasmuch," it
* A license to eat meat on fish-days is too great a curiosity, in our time, to be omitted.
The following is a copy of one, granted in the reign of James the First, of England:
"Whereas Mr. Richard Young, of Okebourne St. George, in the county e of Wiltes,
Esquire, is a Gent, of good age, subject to many sicknesses, diverse infirmities, and
in bodye of a very weak constitution, and hath with him in his house his mother, Mris.
Ann Young, widowe, a Gent, of great age (above four score) very sicklye, feeble, and
subject to diuerse maladies, and having others in his house sicke, and have long bine,
to whom, fish, by reason of theire age, sicknesses and diuerse infirmities, is iudged by
the skilful (as I am informed) to be very hurtfull to their bodies, and likelye to breede
and bring diuerse diseases and sicknesses upon them: They therefore haue requeste
me, theire minister, the promises considered, to give and grant them license, this time
of Lent, to eate flesh, for the better avoidinge of sicknesses and diseases which, by
their absteyning fro flesh, might growe uppon them: Know ye, therefore, that I Adam
Blvthe, Mr. of Arts and of Okebourne aforesaid, Viccar, duelye considering this theire
so lawfull request, and tendering the helth and wellfare of the said Mr. Richard Young
and Mris. Ann Young, his naturall and aged mother, have given and granted, and by
these presents do give and grant to the said Mr. Richard Young and Mris. Ann Young,
and to ffoure persons more, leave, power and license, (so farr as in me lieth, and by
lawe safely I may without danger, and no further) to dresse or cause to be dressed, for
them to eate, flesh this time of Lent nowe following, prohibitinge neuer the lesse, and by
this grant forbidding them, all manner of shamble meates whatsoever. In witness whereof,
to this present license I have put to my hand and scale. Dated and given at my house
in Okebourne aforesaid, ffebruary this xnithe, 1618.
By me, ADAM BLYTHE, the Viccar ibid."
MISCELLANEOUS. 1161
commences, "as within these few yeeres now last past there have bene
levied, perceived, and taken by certain officers of the admiraltie, of
such marchants and fishermen as have used and practised the adven-
tures and journeys into Iceland, Newfoundland, Ireland, and other
places commodious for fishing, and the getting of fish, in and upon the
seas and otherwise, by wey of marchants in those partees, divers great
exactions, as summes of money, doles or shares of fish, and such other
like things, to the great discouragement and hindrance of the same
marchants and fishermen, and to no little dammage of the whole com-
monwealth, and thereof also great complaints have bene made, and in-
formations also yerelyto the King's Majesties most honorable councell;
for reformation whereof," &c., &c. From this period, and in conse-
quence of the measures adopted, rewards to officers of the government
were discontinued, and the Newfoundland fishery became entirely free
to every inhabitant of the realm.
It is of interest to remark that the foreign trade of England was then
limited to the Flemish towns, and to the fishing grounds. To extend
commerce by still further encouragement to the branch of industry be-
fore us, a curious act of Parliament was passed in 1563, which provided
' ' that as well for the maintenance of shipping, the increase of fishermen and
marines, and tlie repairing of port-towns, as for the sparing of the fresh
victual of the realm, it sliall not be lawful for any one to eat fiesh on
Wednesday sand Saturdays* unless under iheforfeitureof£3 for each of-
fence, excepting in cases of sickness and those of special Licenses to be ob-
tained." For these licenses peers were required to pay about six
dollars, knights and their wives about three dollars, and other persons
one dollar and a half; but neither peer nor commoner could eat beef
on the two prohibited days. As will be remembered, this was a sort
of transition period in religion; and, fearing that the act would be con-
sidered as popish, it was provided that " whoever shall, by preaching,
teaching, writing, or open speech, notify that any eating of fish, or
forbearing of flesh, mentioned in this statute, is of any necessity for
the serving of the soul of man, or that it is the service of God other-
wise than as other politic laws are and be, then such persons shall be
punished as spreaders of false news ought to be." Such were the
means adopted to increase "shipping" in the infancy of English
navigation.
These laws were speedily followed by others. In 1571 , fishermen of
the realm were permitted to export sea-fish free of the customs ; while
the same year, and by another act, foreign fishermen anchoring on the
English coast, or interfering in waters where nets were used, were
liable to seizure and confiscation.
Meantime the Newfoundland fishery was prosecuted with great
vigor. The number of vessels employed in it, of various flags, is esti-
mated at three hundred and fifty or four hundred. The ships of
France and Spain, in 1577, were much more numerous than those of
England, for the reason, as is stated, that the English merchants still
sent a part of their vessels to Iceland. It appears, however, that the
English ships were the best; that they gave protection to those of
other nations, and exacted tribute or payment for the service. The
* Palgrave, in his History of the Anglo-Saxons, observes of the origin of the names
of the days of the week in the Saxon mythology, that "Lastly came Sacter, from whom
Saturday is named. He was represented as standing upon a fish, and he held a bucket
in his hand, so that he appears to have been a water deity." — London ed., p. 53.
1162 MISCELLANEOUS.
whole commercial marine consisted of only 1,232 vessels in 1582, of
which 217 were upwards of 80 tons. To assume that the fifty then
visiting Newfoundland were of the latter class, is to state that nearly
one quarter part of the navigation of England, suitable for distant
voyages, was employed in fishing.
In 1583 Sir Humphrey Gilbert, under the first charter that passed
the great seal of England for colonization in America, arrived at New-
foundland. He found thirty-six vessels in the harbor of St. John of
different nations, and was refused entrance; but on hearing that he
had a commission from Queen Elizabeth, they submitted.
He took possession of the island with great pomp and ceremony,
and granted lands and privileges to fishermen in fee, on condition of
the payment of quit-rent. It is important to remark that the right of
England to Newfoundland and its fishing-grounds rests on the dis-
covery of Cabot, in 1497, and on the possession of Gilbert at this time.
Sir Humphrey was accompanied oy smiths, shipwrights, masons,
carpenters, "mineral men," and refiners, and, to win the savages,
toys, such as morris-dancers and hobby-horses, were provided in
ample quantities. The crews of his vessels, and, indeed, some of the
artisans, were desperate men. The seamen on board of his own ship,
the Swallow, were, it is said, chiefly pirates. Poorly clad, and falling
in with a French vessel returning from the fishing-ground, they deter-
mined to rob her to supply their wants. They not only executed
their purpose, by stripping their victims of their clothing and of arti-
cles of food, but, by winding cords round their heads, produced such
exquisite torture as to extort the surrender of their most hidden stores.
After a short tarry at Newfoundland, Sir Humphrey sailed for Eng-
land. On the passage his vessel encountered a fearful gale, and he
and all on board perished. He deserves honorable mention in our
annals. He was the first great projector of an American colony, and
a virtuous and enlightened man, and impoverished himself and
injured his friends, and finally lost his life, in his endeavors to plant
the Anglo Saxon race in the western hemisphere.
Assuming full title to the island and the fisheries, the English seem,
for the moment, to have attempted to exclude the vessels of other
nations, or, at least, to have compelled an acknowledgment of subjec-
tion to them as vested with proprietary rights. We find that, in 1585,
a fleet of ships under Sir Bernard Drake made prizes of several vessels
laden with fish and furs, which he sent to England.
Sir Humphrey Gilbert's voyage, disastrous as it was to himself and
to others, was still the direct means of exciting the attention of his
countrymen to adventures, which, by virtue of his patent, could be
made under the protection of the crown, as to a British possession. I
incline to believe that the Newfoundland fishery had never yet become
the favorite of the English merchants.
By the statute-book there were one hundred and fifty-three days in
a year on which British subjects were required to abstain from flesh,
and to eat fish, and the demand for the products of the sea wTas, of
course, immense. But the Iceland fishery was still prosecuted; and,
that her people might not be molested there, Queen Elizabeth conde-
scended to ask the forbearance and protection of Chistian IV of Den-
mark, who claimed the Iceland seas as his own.
The observance of the interdictions as to flesh on fish-days was
deemed of great moment, and among the tracts of the time was one
MISCELLANEOUS. 1163
by John Erswick, who demonstrated the " benefits that grow to this
realm," by reason thereof, in terms that show he was a devoted parti-
san of the "fishmongers."
The progress of the Newfoundland fishery during the ten years end-
ing in 1593 was rapid beyond example, and Sir Walter Raleigh de-
clared in the House of Commons that it was the stay and support of
the west counties of England. Yet it was subject to interruptions.
An example occurs in the case of Charles Leigh, a merchant of Lon-
don, who, in 1597, made a voyage with two vessels, and who, while
on the American coast, wTas assailed by the crews of French vessels,
to the number of two hundred, who, landing pieces of ordnance, kept
up a discharge of shot until a parley was neld and the difficulty
adjusted.
As the sixteenth century closes, we record the commencement of
hostile relations between the fishermen and the red Indians of New-
foundland.
These Indians derived their food principally from the sea. The
Europeans, in the course of their merciless warfare against them, de-
stroyed their canoes, their nets, and their villages. The Indiars
endeavored to maintain their rights of fishing, and bravely contended
with their opponents, until resistance was vain. The fish they
required for consumption could not, in the very nature of things, have
diminished the catch of their cruel rivals. Driven almost entirely
from the sea, finally, and unjustly deprived of all means of support,
they were compelled to plunder food to save themselves from starva-
tion . Watched and waylaid by their foes, they were shot down when-
ever they came near any of the European fishing stations. In truth,
whenever and wherever they were found, and whether resisting, or
imploring for food, they were slain as men slay beasts of prey. Men,
women, and children were slaughtered without discrimination; and
even those who were too weak to raise the hand of supplication, were
not spared. In a word, the natives of Newfoundland were extermi-
nated by deeds as disgraceful and as damning as any which appear in
the dealings of the Spaniards with those of Cuba, or South America.
From the fragmentary accounts that have come down to us of the
events connected with our subject, we may conclude that the habits of
the fishermen who visited the American coasts were loose and immoral.
They could hardly have been otherwise. It was not until late in the
sixteenth century that bibles, or other printed books, were in common
use anywhere, or that the manufacture of writing-paper and time-
pieces was commenced in England; while gentlemen who could not
write still helped the memory by notches made in sticks, and ate their
food without forks. Chimneys in dwelling-houses were rare; and even
after the accession of Elizabeth, the floor of the presence-chamber of
the royal palace was covered with hay. That, in this state of society,
the humble class of whom I speak were rude, ignorant, lawless, and
wicked, cannot excite surprise.
Our attention is now to be directed to incidents of moment. It is
estimated that two hundred English ships went annually to Newfound-
land about the year 1600, and that they employed, as catchers on
board and as curers on shore, quite ten thousand men and boys. The
vessels commonly left England in March and returned in September;
the fishermen passing their winters at home, idly spending their sum-
mer's earnings, or "share-money." The prosperous condition of the
1164 MISCELLANEOUS.
fishery was often spoken of in terms like the following: "To come,"
says Sir William Monson, (writing in 1610,) " to the particulars of aug-
mentation of our trade, of our plantations, and our discoveries, because
every man shall have his due therein, I will begin with Newfoundland,
lying upon the main continent of America, which the King of Spain
challenges as first discoverer; but as we acknowledge the King of
Spain tne first right of the west and southwest parts of America, so
we, and all the world, must confess that we were the first who took
possession, for the crown of England, of the north part thereof, and
not above two years' difference betwixt the one and the other. And
as the Spaniards have from that d&y and year held their possession in
the west, so have we done the like in the north; and though there is
no respect in comparison of the wealth betwixt the two countries, yet
England may boast that the discovery, from the year aforesaid to this very
day, Tiaih afforded the subject, annually, one hundred and twenty thousand
pounds, and increased the number of many a good sJiip, and mariners, as
our western parts can witness by their fishing in Newfoundland"
That in the manner of prosecuting the fishery, much time and money
were lost, is obvious to practical men without explanation. To plant
a colony, and thus afford inducements to the fishermen to live perma-
nently near the fishing-grounds, was an object highly desirable to per-
sons of broad and liberal views. The plan, postponed by the untimely
end of Sir Humphrey Gilbert, and the attention bestowed upon coloni-
zation in the more genial region of Virginia, by Sir Walter Raleigh, his
kinsman and associate, was now to be renewed.
In 1610, and the year following, two charters were granted for the
purpose. The first, from the rank of several of the patentees, is de-
serving special mention. The merit of the enterprise belongs to Mr.
Guy, a merchant of Bristol, who published several pamphlets, and
induced a number of commercial men of that city, and several per-
sons of influence at court, to join him. Among the latter class were
the celebrated Lord Bacon,* who was then solicitor general; Lord
Northampton, keeper of the seals; and Sir Francis Tanfield, chief
baron of the exchequer. The patent states, that "divers" of the
king's "subjects were desirous to plant in the southern and eastern
parts of Newfoundland, whither the subjects of the realm have for
upwards of fifty years been used annually, in no small numbers, to
resort to fish," &c. The patentees, nearly fifty in number, were des-
ignated as "The treasurer and company of adventurers and planters
of the citie of London and Bristol, for the colony and plantation of
Newfoundland." The limits of their territory were fixed between
Capes St. Mary and Bonavista, comprising that part of the eastern
and southern coasts which had been hitherto the chief seat of the
fishery.
The privileges granted were as liberal as could be desired ; the only
reservation being, that all British subjects should be allowed to fish
at will, and free of tax or restraint, -on the coasts.
The conception was a grand one, and connects Lord Bacon with
our annals; but no results, such as were anticipated, followed. Yet,
I suppose that Whitbourne, of whom we shall have occasion to speak
* Francis Bacon, Baron of Veralum, one of the most remarkable of men, was born
in London, in 1561. He was created Lord High Chancellor of England in 1619, and
died in 1626.
MISCELLANEOUS. 1165
particularly, alludes to this colony when he says, "Divers worshipfull
citizens of the city of Bristol have undertaken to plant a large circuit,
and they have maintained a colony of his Majestie's subjects there
any time these five yeares, who have builded there f aire houses, and
done many other good services; who live there very pleasantly; and
they are well pleased to entertaine, upon fit conditions, such as will
be adventurers with them." Whitbourne also mentions by name in
the same paper, which I conclude was written in 1621, the " Wor-
shipfull John Slany, of London, merchant, who is one of the under-
takers of the Newfoundland plantation, and is treasurer unto the
patentees of that society, who have maintained a colony of his Majes-
tie's subjects there above twelve years;" but I find no other account
of Slany or his associates. It appears, too, that another company,
having obtained a grant of land at Newfoundland, sent out a party
who wintered there in 1613; but soon becoming weary of their at-
tempts for settlement, they transferred their grant to other adven-
turers. Among the obstacles to colonization at this period, piracy
is not to be overlooked. Whitbourne frequently suffered at the nands
of freebooters, and in 1612 Peter Easton, a noted pirate, with ten
wTell-appointed ships, made himself complete master of the seas,
levied a general contribution on the vessels employed in fishing and
impressed from those at Concepcion Bay one hundred men for his own
fleet. Pirates continued to harass and plunder the fishermen for
several years.
In 1613 we notice the birth of the first child of European parents.
Two years later, Richard Whitbourne, already mentioned, who had
made many voyages to Newfoundland, arrived at that island with a
commission from the admiralty to empannel juries and correct abuses
and disorders among the fishermen on the coast. He summoned a
court, and heard the complaints of one hundred and seventy masters
of English vessels. The abuses seem to have been flagrant. The
captains had been accustomed to leave their boats and salt on the
coast, hoping to find them at the beginning of the next season, but in
many cases not a vestige remained of either. The bait prepared for
the next day's fishing was frequently stolen out of the nets ; the for-
ests were often wantonly set fire to; the large stones used in pressing
the fish were sunk at the mouth of the harbors ; and little or no regard
was paid to the Sabbath. Whitbourne's courts and juries were the
first, probably, under the authority of England, in the New World.
Manv thousand persons were employed as catchers and curers, and
the fisnery was in a flourishing condition. Besides the vessels of
foreign flags we found "then on that coast," says he, "of your
Majestie's subjects, two hundred and fifty sail of ships, great and
small."* In the paper from which I have cited he speaks of a settle-
ment of the "Worshipfull William Vaughan, of Tawacod, in the
county of Carmarthen, doctor of the civil law," who had "undertaken
to plant a circuit in the Newfoundland," and who "hi two severall
* Richard Mather, who came over to Massachusetts in 1635, kept a journal of the
voyage. When on the Bank of Newfoundland, "on the end of it nearer to New
England," he records seeing "mighty fishes rolling and tumbling in the waters, twice
as long and big as an ox." He saw, too, "mighty whales spewing up water in the air,
like the smoke of a chimney, and making the sea about them white and hoary, as is
said in Job: of such incredible bigness that I will never wonder that the body of
Jonas could be in the belly of a whale."
1166 MISCELLANEOUS.
years had sent thither divers men and women;" and he adds, that
there are many other worthy persons, adventurers in the said plan-
tations, whose names are not herein mentioned;" concluding with
an appeal to his countrymen to sustain the colonies of which he had
given an account, because of the "great increase of shipping and
mariners, and the employment and enriching of many thousands of
poore people which now live chargeable to the parishioners," and for
other reasons.
Leaving here the Newfoundland fishery, for the present, we turn to
adventures on the coast of New England. The Englishman who made
the first direct voyage across the Atlantic was Bartholomew Gosnold,
who explored our shores in 1602, and, catching codfish near the
southern cape of Massachusetts, gave the name which it still bears.
He was followed by the celebrated John Smith in 1614, who took
"forty thousand" fish, which he dried, and "seven thousand" which
he "corned," or pickled, in the waters of Maine, and purchased a large
quantity of furs of the natives. The profits of his voyage were up-
wards of seven thousand dollars.
Four ships from London and four from Plymouth came in 1616.
They obtained full fares, and sold their fish in Spain and the Canary
Islands at high prices. The number increased rapidly. At the time
the Pilgrims landed at Plymouth the island of Monhegan, in Maine,
had become a noted fishing station. In 1622 no less than thirty-five
ships from London and the west counties of England made profitable
voyages to our shores. "Where in Newfoundland," says Smith, a
common fisherman "shared six or seven pounds," in New England
he "shared fourteen pounds." This was a great difference; and it is
to be remembered that the profit of the merchant who furnished the
vessel and the outfit was increased in the same proportion. I may
add that it is of interest to learn from this remark of Smith, and from
others that occur in his pamphlets, that the practice of fitting out
vessels "on shares" — to use a term well known among practical men,
still so common — was introduced more than two centuries ago.
Abuses far greater than those which had required the correcting
hand of Whitbourne at Newfoundland soon demanded attention. Sir
Ferdinando Gorges and the quaint Hubbard both declare that the
fishermen and others taught the Indians "drunkenness, wickedness,
and lewdness;" that they "abused the Indian women openly," and
were guilty of "other beastly demeanors," to the "overthrow of our
trade and the dishonor of the government." To put an end to these
disorders, and to accomplish other purposes, Sir Ferdinando Gorges's
son Robert was commissioned, in 1623, to come to New England as
lieutenant general over all the country known by that name. Francis
West, bearing the commission of admiral of the seas, with power to
restrain such ships as came either to fish or trade on the coast without
license, arrived the same year. Neither were officers of the crown,
but the agents of a private corporation.
King James had granted, three years previously, to forty noblemen,
knights, and gentlemen, the vast domain embraced between the 40th
and 48th degrees of north latitude, and extending from ocean to
ocean. This company, known in popular language as the "Council of
Plymouth," claimed not only the territory within their patent, but the
seas. Assuming that the fishing-grounds from Acadia to the Dela-
ware were no longer free to British subjects, they asserted exclusive
MISCELLANEOUS. 1167
property in and control over them, and were sustained in their preten-
sions by the King.
The controversy which followed the attempt of the council to main-
tain this monstrous claim was fierce and angry in the extreme.
The limits of this report will allow but a brief account of it. It
commenced in 1621, two years before the voyage of West, and was
continued for several years.
Sir Ferdinando Gorges's narrative of the troubles of the council from
this source and others is preserved in the Collections of the Massachu-
setts Historical Society, and contains many interesting statements.
He had been an officer in Queen Elizabeth's navy, and intimately
connected with Mason, who became the grantee of New Hampshire,
and, with Sir Walter Raleigh, the father or American colonization, and
was as determined as either of them to leave his name in our annals.
He was an active, indeed the principal, member of the council, and
after its dissolution, acquired Maine in his own individual right.
The council demanded that every fishing vessel should pay into
their treasury a sum equal to about eighty-three cents the ton, which,
the small size of the vessels of the period considered, amounted to a
tribute probably of more than a hundred dollars from each English
ship that should come upon our coast. They had made no settle-
ments upon the land, and the tonnage money to be exacted of the
fishermen constituted the only present source of revenue from their
possessions.
The spirit of the English people was roused. The Dutch herring-
fishery was regarded as the "right arm of Holland," and the imagina-
tions of Englishmen were filled with dreams of the fortunes which
were certain to be secured from a kindred pursuit in regions where
Dutch busses had not adventured ; and the prodigal act of the King in
granting to favorites of his court the seas which contained the treas-
ures they coveted, caused the most indignant complaints. The
House of Commons, obedient to the popular feeling, insisted upon
the abrogation of the obnoxious monopoly, and that every English-
man should be aUowed to fish at will, without molestation or tribute,
within the limits of the council's patent. During the debate which
arose, (a sketch of which may be found in Bancroft) the patentees
were assailed with great boldness. "What," said Sir Edwin Sandys,
"shall the English be debarred from the freedom of the fisheries — a
privilege which the French and Dutch enjoy? It costs the kingdom
nothing but labor; employs shipping; and furnishes the means of a
lucrative commerce with Spain." "Nay," replied Calvert, "the
fishermen hinder the plantations; they choke the harbors with their
ballast, and waste the forests by improvident use. America is not
annexed to the realm; you have, therefore, no right to interfere."
The friends of "free fishing" prevailed in the Commons; but Par-
liament was dissolved before a bill embracing and legalizing the fruits
of the triumph could be carried through the forms of legislation. The
council, giving no heed to the clamors of the people, and disregarding
the course of the Commons, sent over West, as we have stated. To
enforce the payment of the tribute, and to drive off and break up the
voyages of those who refused, were the principal objects of his mission.
He found the fishermen too numerous and too stubborn; and, accom-
plishing nothing, departed for Virginia, and thence returned to Eng-
land. His proceedings and the unyielding disposition manifested by
1168 MISCELLANEOUS.
Gorges and other members of the council, caused a renewal of the
clamor, and of the demand that the American fishing ground should
be declared free and open to ah1 the subjects of the realm.
On the meeting of Parliament in 1624, the pretensions of the council
were again assailed with eloquence and power. Sir Edward Coke,*
Speaker of the Commons, one of the most eminent of English lawyers,
and now in his old age, indignantly demanded the revocation of the
odious restriction. Sir Ferdmando Gorges had been summoned and
was present. "Your patent," — thus was Gorges addressed by Coke
from the Speaker's chair — "Your patent contains many particulars
contrary to the laws and privileges of the subject; it is a monopoly,
and the ends of private gain are concealed under color of planting a
colony." "Shall none," he said in debate, "shall none visit the sea-
coast for fishing? This is to make a monopoly upon the seas, which
wont to be free. If you alone are to pack and dry fish, you attempt a
monopoly of the wind and sun."
The Commons prevailed a second time, but the bill to revoke the
charter did not receive the royal assent. Still, the council were for-
ever entirely powerless. Though protected by their sovereign, public
sentiment compelled submission; and abandoning their own plans,
they continued to exist as a corporation, merely to make grants of
lands to other companies, and to individual members of their own
number.
James bequeathed the quarrel to his son. The iU-fated Charles
had hardly ascended the throne before the Commons passed a bill for
the maintenance and increase of shipping and navigation, and for the
liberty of fishing on the coasts of Newfoundland, Virginia, and New
England. This bill was lost in the House of Lords, but the spirit of
the Commons wTas not repressed. In a strong representation of griev-
ances, which they laid before Charles, they insisted that the restraint
of the subject in the matter of fishing, with all the necessary inci-
dents, was of national concern and required redress.
This State paper, and their refusal to grant the King a subsidy,
caused the dissolution of Parliament.
It is from this dissolution that we date the disagreements between
Charles and his people, which, in their termination, overturned a
dynasty and carried the monarch to the block. In truth, I am led to
conclude that the question of "free fishing" was the first in the series
of disputes relative to the prerogatives of the crown on the one side,
and the rights of the subject on the other.
The political consequences of the discussions so briefly considered,
might well claim further attention ; but leaving them here, the results
to the fisheries next demand our notice. These, for the moment,
were disastrous in the extreme, since I know of no other explanation
to the fact, that during the five years embraced in the struggle the
number of English fishing-vessels on the whole extent of our coast
diminished much more than one-half, or from four hundred to one
hundred and fifty; while it is certain that in the alarm which pre-
* He was born in 1550; he became solicitor general in 1592, and attorney general soon
after. His conduct in the latter capacity, during the trials of the Earl of Essex, and
the celebrated Sir Walter Raleigh, has been severely and justly condemned. Coke, in
1613j was appointed chief justice of the Court of King's Bench. Towards the close of
his life, he devoted himself to the cause of the subject, in opposition to the pretensions
of the crown; he died in 1634.
MISCELLANEOUS. 1169
vailed, the merchants who had purchased the island of Monhegan,
and had provided there ample accommodations for the prosecution
of their adventures, sold their property and retired from the business.
Singular to remark, too, that on the immediate coast of New Eng-
land— and for ships owned or entirely controlled by English mer-
chants— the right of "free fishing," so earnestly contended for, was of
little real value. Accounts of such ships terminate almost at the very
moment that the right was established, in the manner related.* In
another part of this report, we shall indeed find that single vessels
continued to arrive at, and depart from, particular fishing stations;
but these instances do not change the general truth, for most of them
were connected with establishments occupied by persons who came
to settle and remain in the country. We may conjecture that these
merchants withdrew, because, once interrupted, they would not
adventure again; or because they were satisfied that, in the long run,
the Newfoundland fishery would prove the safest and most profitable;
or because some of them became interested with their countrymen,
who, meantime, had founded the colonies of Plymouth, New Hamp-
shire, and Maine, who had set up fishing-stages at Cape Ann, and were
about to undertake the colonization of Massachusetts on an exten-
sive plan.
The disasters, at most, were limited and partial. The benefits
were general, and of vast consequence. Had the council succeeded
in their measures the whole course of affairs would have been arrested,
and the settlement of the country postponed indefinitely. Before
the dissolution of the corporation, eight patents of soil and fisheries
were granted in Maine ; and the long, expensive, and vexatious quar-
rels which arose there between rival patentees, and the claimants
under them, prove conclusively that, had the seas and territory of all
New England been lotted and parcelled out in the same way, our his-
tory, for an entire century, would have contained little else than
accounts of strifes, commotions, and forcible possessions and ejec-
tions.
Several of the patents issued by the council previous to 1626 convey,
either by implication or in express terms, to the patentees, the exclu-
sive right of fishing within their domains ; and in their eighth and last,
to Aldworth and Elbridge, two merchants of Bristol, England, dated
in 1631, and known in Maine as the "Pemaquid patent," this pro-
* Governor Bradford, in a letter to the "Council of New England," dated at Plymouth,
June 15, 1627, complains that the English fishermen on the coast "began to leave fish-
ing and to fall wholly to trading, to the great detriment of " the settlers there, and the
"state of England." In the year following, complaint was made to the council against
Thomas Morton, who "had been often admonished not to trade or truck with the
Indians," and against "the fishing ships, who made it too ordinary a practice" to do
the same thing, and over whom the people of Plymouth had no control.
In a communication to Sir Ferdinando Gorges, the same year, (1628,) it is said that
Englishmen, under "pretence of fishing," sold the natives all manner of arms; that
"from the greedy covetousness of the fishermen, and their evil example, the like had
began to grow amongst some, who pretend themselves to be planters, though indeed
they intend nothing less but to take opportunity of the time, and provide themselves
and begone, and leave others to quench the fire which they have kindled," &c., &c.
The evil seems to have been alarming, since it is further said, that unless the colo-
nists were protected against those misdeeds, they must "quit the country." Thoassist-
ance of Gorges, to bring Morton "to answer those whom it may concern," and "like-
wise that such fishermen may be called to account," is earnestly entreated.
92909°— S. Doc. ^70, 61-3, vol 3 35
1170 MISCELLANEOUS.
vision is retained. But grants to individuals to monopolize our seas
disappear ever afterward.
In the charter to Calvert, of Maryland, the freedom of the fisheries
is expressely stipulated. So, top, in the grant to Gorges, the great
champion of monopoly, any subject could fish in Maine, and use the
shores for purposes of curing and drying.
The patent to Sir Henry Roswell and others, of Massachusetts,
defines with almost tedious particularity the rights to be enjoyed by
all the inhabitants of the realm in any of the seas, arms of the sea, and
salt-water rivers, as well as those of drying, keeping, and packing fish
on the lands appurtenant.
In like manner the charter of Rhode Island, granted by Charles the
Second, expresses the loyal will and pleasure to be that "our loving
subjects, and every one of them," shall "exercise the trade of fishing"
where "they had been accustomed to fish." Even after the expul-
sion of the Stuarts, and in the second charter of Massachusetts, in the
reign of William and Mary, when our fishing grounds had been open
more than sixty years, the principles asserted by Coke in the House
of Commons are as carefully recognised and repeated as he himself
could have desired. Iji these, and in similar instruments, then, and
not in the statistics of vessels and men at a particular time, we are to
seek for the fruits of the victory obtained by the sturdy advocates of
"free fishing, with all its incidents," in America.
We may now pause a moment to discuss a kindred topic, which
changes the scene from our seas to those of the mother country. I
refer to the "ship-money," levied by Charles the First, and to Hamp-
den, who won undying fame by resisting its payment. Both are
more intimately connected with our general subject than seems to be
commonly supposed.
First, it cannot but have been remarked that the acts of Parliament
to "increase shipping," "by encouragement to the different English
fisheries, are numerous throughout the period embraced in our
inquiries. The end desired was obtained; and I regard it as his-
torically accurate to say that the earliest considerable demand for
English ships of proper size and strength to perform long and peril-
ous voyages was for explorations and fishing upon our coasts. At all
events, it is certain that down to the time of Elizabeth the foreign
trade of England was in the control of German merchants, and that
there had been no employment for many or for large ships of the
realm.* British navigation increased with the growth of the fish-
eries. Without the fleets maintained at Iceland and Newfoundland
there would have been neither ships nor seamen to execute the plans
for the colonization of New England, and of other parts of the con-
tinent, during the reigns of James and Charles.
Yet, while the commercial marine gained strength, the royal navy
continued small, and at the accession of James it consisted of but
thirteen vessels.
* In 1485 (reign of Henry VIII) Sir William Cecil, a London merchant, stated that
there were not above four merchant vessels, exceeding one hundred and twenty tons
burden, belonging to that city; and that "there was not a port in Europe, having the
occupying that London had, that was so slenderly provided with snips." Other
writers assert that at the death of Queen Elizabeth (1603), more than a century later,
there were only four merchant ships in all England of more than four hundred tons.
MISCELLANEOUS. 1171
Charles succeeded to a naval force far too weak to cope with the
fleets of his enemies; and after his breach with the Commons, resorted
to the fatal levies of "ship-money" to augment it, and for a distinct
object, namely, that of breaking up the Dutch fisheries on the British
coast. The dispute was of long standing. Complaints against the
aggressions of the industrious Hollanders had been made to Elizabeth,
and to her successor. It was said, indeed, in the time of the latter,
that the Dutch not only engrossed the fisheries, but the entire mari-
time business of the country; and James compelled them to pay an
annual tribute for the liberty of catching herring on the coasts of his
kingdom. New disagreements arose, when they were warned off by
royal proclamation. The Dutch were exasperated. Hugo Grotius
appeared in their defence; and in his Mare Liberum contended for the
freedom of the seas. Selden, in his Mare Clausum, is supposed by
British writers to have refuted his arguments, and to have shown by
records the first occupancy of the fishing grounds by the English, and
their dominion over the four seas which surround the British isles, to
the utter exclusion of both Dutch and French; as well as the fact
that the Kings of England, even without the authority of Parliament,
had levied large sums to maintain the sovereignty of the seas.
The Dutch, denying these conclusions, and insisting that the
dominion claimed by the English extended no further than the friths,
bays, and shores, still continued their employment in the interdicted
waters. The English required an acknowledgment of their title, and
a tribute. Negotiations to adjust the difficulties between the two
nations failed. Meantime, Charles, by his exactions of "ship-
money," annually increased his navy.* At last he was able to fit
out a fleet of sixty sail, and the greatest ever equipped in England.
This formidable armament, created for the special purpose of driving
the Dutch herring fishers from the four "narrow seas, as they were
called, was sent immediately to perform that service; and in the suc-
cess of the enterprise, the Dutch consented to pay a sum equal to
about one hundred and fifty thousand dollars.
Such, I think, are the conclusions to be derived fairly from the
statements of Hume, and other writers of English history. Dr.
Johnson, refusing to allow any influence to the religious antipathies
that were awakened in the course of the controversy between the
monarch and his people, sums up the case far more forcibly, and evi-
dently considers that Charles owed his ruin to his zeal in maintaining
the monopoly of the seas. In his "Introduction to the Political
State of Great Britain," written in 1756, he says: "The Dutch,
grown wealthy and strong, claimed the right of fishing in the British
seas; this claim the King, who saw the increasing power of the States
of Holland, resolved to contest. But, for this end it was necessary to
build a fleet, and a fleet could not be built without expense: he was
advised to levy ship-money, which gave occasion to the civil war, of
which the events are too well known." Thus it appears that the
exercise of the prerogative to exclude his subjects from the fishing
grounds of his dominions in one hemisphere was among thejirst; and
* It was said by the merchants of England in 1627, that "within three years they had
lost all their shipping; that the ^fishermen were taken almost in their very harbors, and that
they would not attempt the building of new ships, because, as soon as they were ready,
the King [Charles the First] seized them for his own use, against the will of the own-
ers," &c.
1172 MISCELLANEOUS.
that the imposition of taxes, without authority of Parliament, to for-
cibly exclude a foreign people from those in the other, was among the
last of the offences that sealed the fate of the unhappy Charles.
We return to the English fishery at Newfoundland. The first inci-
dent that invites our attention is the attempt of Sir George Calvert to
found a colony. Whitbourne says that he undertook "to plant a
large circuit/7 and that in 1621 he had already sent "a great number
of men and women, with all necessary provisions for them," who
were building houses, clearing land, and preparing "to make salt for
the preserving of fish another yeare." His grant was for a consider-
able tract, embracing the coast from Cape St. Mary to the Bay of
Bulls. He called his plantation "Avalon." His expenditures were
very large for the time, amounting to nearly one hundred and twenty-
five thousand dollars. Sir George resided in person at "Avalon" for
some time, it is said, and endeavored to succeed where others had
failed. But the difficulties he encountered were numerous. His
rights became impaired by the determined course of the Commons in
asserting the freedom of the fisheries; and the soil and climate did
not meet his expectations.
More than all, the French menaced the destruction of his propertv,
and required the manning of ships, at his own expense, to protect his
private interests, and the defenceless English fishermen on the coast.
Relinquishing, finally, his plantation at Newfoundland, he turned his
thoughts to more hospitable regions, and, as Lord Baltimore, became
the father of Maryland.
Of all who sought our shores to acquire power and princely estates,
to escape persecution, or to give a home and shelter to the weary and
stricken, not one — whether Puritan, Episcopalian, or Quaker — was
actuated by a spirit more liberal, or has left a better name, than
George Calvert, the Catholic.*
Remarking that Winthrop records in his journal (1647) the occur-
rence of a hurricane at Newfoundland, which wrecked many ships
and boats, and destroyed quantities of fish, we come to the time of
Charles the Second. That monarch, after the restoration, in 1660,
issued a long«proclamation for the strict observance of Lent, assign-
ing, as one reason therefor, "the good it produces in the employment
of fishermen." Still further to encourage this branch of industry,
Parliament passed an act the same year remitting the duty on salt
used in curing fish, and exempting the materials required in the fish-
eries from customs and excise. Three years later, the Newfoundland
fishery was specially protected by an entire exemption from levies
and duties; and the home and colonial fisheries w^ere at the same time
assisted by duties imposed on products of the sea, imported by for-
eigners or aliens.
Yet, the number of ships employed at Newfoundland declined annu-
ally. In 1670, the merchants sent out barely eighty. The decline
* George Calvert, Baron of Baltimore, and founder of Maryland, was born in England
in 1582. He was appointed one of the principal secretaries of state in 1619; and while
holding office he acquired the southeastern peninsula of Newfoundland, which he
erected into a province called Avalon. In 1624 he became a Catholic. After his
abandonment of Newfoundland he made a visit to Virginia, but the colonists disliked
his religion, and he relinquished his intention to settle among them. On his return to
England, Charles the First gave him a patent of the country now Maryland. Lord
Baltimore died in T/ondon in 1632, before his patent had passed the necessary forme;
and a new one was issued to his son Cecil, who succeeded to his honors.
MISCELLANEOUS. 1173
was attributed to the boat fishery, carried on by the inhabitants there.
Sir Josiah Child,* the leading authority of the day in matters of trade
and commerce, sounded the note of alarm, anticipating that, if the
resident fishermen continued to increase, they would, in the end,
carry on the whole fishery, and that the nursery of British seamen
would be destroyed. The only remedy he proposed was the annihila-
tion of the boat fishery. Never was a more unjust expedient con-
ceived. The labors, the expenditures, and sacrifices, of a large num-
ber of eminent and adventurous men, who had devoted life and for-
tune to the colonization of Newfoundland, were thus to be counted as
worthless, and even injurious to the realm. But the views of Child
were adopted by the Lords of Trade and Plantations, f who deter-
mined to break up and depopulate the colony. Sir John Berry was
accordingly sent over, with orders to drive out the fishermen, and burn
their dwellings. The extent of his devastations under this more than
barbarous decree may not be certainly known; but six years elapsed
before the mandate of destruction was revoked, and its abrogation
was accompanied with instructions to allow of no further emigrations
from England to the doomed island. Complaints were made that
emigration continued, and various plans were suggested to discourage
and prevent it. Meantime, the relations between the resident fisher-
men and the masters and crews of the ships sent out by the English
merchants were hostile to an extent which, at the present day, seems
almost incredible. Previous to the edict just noticed, the former had
petitioned the King for the establishment of some form of government,
to protect them against the rapacity of their own countrymen — the
latter. The merchants opposed the measure, as injurious to the fish-
eries, and prevailed. The petition of the residents was renewed from
time to time, but never with success; and they continued to suffer
wrongs and cruelties without redress.
The merchants convinced the ministry, or the Lords of Trade and
Plantations, that the appointment of a governor, and the recognition
of the full rights of the inhabitants of Newfoundland as British sub-
jects, would produce the ruinous results anticipated by Child, and,
strange as it may appear, no Englishman could lawfully have a home
on that island for a long period.
The edict of 1670, to burn and destroy, had the effect, possibly, to
increase the number of ships, since, four years afterward, two nun-
dred and seventy, employing, on board and on shore, ten thousand
* Sir Josiah Child was a merchant. It is said that he acquired great wealth in the
"management " of the East India Company's stock. When his daughter married the
eldest son of the Duke of Beaufort, he gave her a portion of £50,000. Sir Josiah had
fish-ponds in Epping forest, "many miles in circuit."
t The Board of Trade and Plantations was of no service to the American colonies,
though created for the special purpose of attending to their interests. Mr. Burke, in a
speech in the House of Commons, in 1780, thus spoke of it: "This board is a sort of
temperate bed of influence — a sort of gently-ripening hot-house-^-where eight members
of Parliament receive salaries of a thousand a year, for a certain given time, in order
to mature, at a proper season, a claim to two thousand, granted for doing less, and on
the credit of having toiled so long in that inferior laborious department. I have known
that board, off and on, for a great number of years. Both of its pretended objects have
been much the objects of my study, if I have a right to call any pursuits of mine by so
respectable a name. I can assure the House — and I hope that they will not think that
I risk my little credit lightly — that, without meaning to convey the least reflection
upon any one of its members, past or present, it is a board which, if not mischievous, is
or no use at all."
1174 MISCELLANEOUS.
eight hundred men, were engaged in the fishery. Yet the seas were
not safe. Some of the fishing vessels mounted from ten to twenty
guns, and carried from sixty to one hundred men, and others sailed
under convoy, and were protected, while on the coast, by ships-of-
war. The price of fish, to support this state of things, must have been
enormous.
As the century closes we notice the mention of a report of the Lords
of Trade and Plantations, in which they so far modify their former
order, relative to emisration, as to intimate that, inasmuch as a thou-
sand persons might be useful at Newfoundland, to construct boats
and fishing-stages, that number would be suffered to live there, without
fear, we may conclude, of official incendiaries and legal robbers. But
the gracious privilege thus accorded still placed the resident fishermen
at the tender mercies of the merchants and the masters of their ves-
sels; for, by an act of Parliament in 1698, these masters, in the ab-
sence of all law, were authorized to administer justice, and to regulate
the general concerns of the fisheries and of the colony, almost at
pleasure.
Were the inmates of British prisons to be subjected now to the
treatment received by the inhabitants at the hands of these masters,
the whole civilized world would join in a shout of indignant con-
demnation. The first master who arrived at any particular harbor
was its admiral for the season; the second was its vice-admiral, and
the third its rear-admiral. Thus, at the outset, no attention what-
ever was paid to the qualifications — to the heads or the hearts — of
these strange rulers. Accident — a long passage or a short one, a dull
or a quick-sailing vessel — determined everything. The triumph of
the English merchants over their fellow-subjects, in this lone and
desolate isle, was as complete as that of the warrior who storms a
city. In fine, the "admirals" selected the best fishing stations, dis-
placed at will the resident fishermen who occupied them, drove the
inhabitants from their own houses, took hush-money and presents
of fish in adjusting cases brought before them for adjudication, and,
in their general course, were as arbitrary and as corrupt as the
leaders of banditti. There were exceptions, it may be admitted;
but the accounts are uniform that, as a class, the "admirals" were
both knaves and tyrants. Yet the law which authorized these
iniquities bore the title of "An act to encourage the trade of New-
foundland."
In 1701 we have a very particular and detailed return of the con-
dition of the fishery, thus: There were 121 vessels, manned with 2,727
men, 993 boats, belonging to the vessels and to the resident fisher-
men, 544 fishing-stages on the shores, and 3,581 men, women, and
children employed as curers; while the catch was 216,320 quintals
of fish, yielding 3,798 hogsheads of oil.*
In 1729 we record an improvement in the government of the
island, since a captain of a ship-of-war displaced the "admirals," and
we find the number of inhabitants estimated at about 6,000. Refer-
ring to the accompanying table for the general statistics of the cen-
tury; and remarking that the number of ships was doubled in the six
* In 1727 an act of Parliament was passed which authorized the importation of salt
into Pennsylvania, in British ships, (navigated according to the navigation acts of the
realm,) and for the curing of fish, on the same conditions as were allowed in New Eng-
land and Newfoundland.
MISCELLANEOUS. 1175
years succeeding the close of the war with France, which immediately
preceded our Revolution, we proceed to notice such events as our
limited space will allow:
The first of these is the proclamation of the King, in 1763, in which
it is stated that, "to the end that the open and free fishery of our
subjects may be extended to and carried on upon the coast of Labra-
dor and the adjacent islands, we have thought fit, with the advice of
our privy council, to put all that coast, from the river St. John to
Hudson's straits, together with the islands of Anticosti and Madalene,
and all other islands lying upon the said coast, under the care and
inspection of our governor of Newfoundland," while "the islands of
St. John, Cape Breton, or Isle Royale, with the lesser islands adjacent
thereto," were annexed to "the government of Nova Scotia."
The general affairs of Newfoundland were considered at about the
same time. Though no plan was devised for the government of the
colony, such as was due by England to herself and to humanity, the
resolution was still adopted to discontinue all further attempts to
check the resident fishermen. The task had become, indeed, hope-
less. The tonnage of the merchants' ships had fallen to less than
eighteen thousand, and their catch to one hundred and thirty-six
thousand quintals. The produce of the boat fishery, on the other
hand, had risen to three hundred and ten thousand quintals. The
boat-fishers, or inhabitants, had, therefore, overcome every obstacle,
and were in the ascendency.
I reserve a full answer to the many complaints against our country-
men who fish in the seas of British America, for another part of this
report; that, however, which is made by the people of Newfoundland,
may be disposed of here.
The charge is, that the British flag is no longer seen upon "the
banks," and that the privileges enjoyed by the French and Americans,
by treaty and otherwise, have caused the withdrawal of the English
and colonial merchants from that branch of the fishery. This charge
is to be found, in substance, in an offensive form, in newspapers, in
official documents, and remonstrances to the home government. I
submit, in all kindness, that it is not so. The truth is, that the resi-
dent fishermen — as Sir Josiah Child, a hundred and eighty years ago,
anticipated they would do — have supplanted the merchants of Eng-
land, with whom they so long contended; that the boat fishery has
taken the place of the vessel fishery, in the common course of things.
To catch fish by long, expensive, and perilous voyages, when they can
be taken at the fishermen's own doors, where catchers and curers can
sleep in their own beds, taste the sweets of a shore life, and enjoy the
comforts of home, is to dispense with the steam-spindle and go back
to the distaff. There is no truth in the complaint. The annual catch
at Newfoundland, in whole numbers, is one million of quintals, and,
on a mean of years, equal to that of any former period. This fact is
conclusive. That the Americans disturb the industry of the colonists,
is not possible. The restoration of the by-gone vessel fishery can be
accomplished, not by driving these "foreigners" from "the banks,"
but by a new edict to burn and destroy the dwellings of British subjects.*
In 1771, the number of souls at Newfoundland was 3,449 English,
and 3,348 Irish. In 1775, merchants "at home" were encouraged to
* Lord Dundonald expressed his views with regard to the British fishery at New-
foundland in a communication published in the London Times, August, 1852, in the
1176 MISCELLANEOUS.
continue their adventures, by an act of Parliament, which allowed a
bounty of £40 to the first twenty-five ships, £20 to the next hundred,
and £10 to the second hundred, that should make fares of fish before
the middle of July, and proceed to "the banks" for a second lading.
Lord North's bill to prohibit the people of New England from fishing
at Newfoundland, which was passed in the year last named, will be
noticed particularly elsewhere.
During the discussion pending these measures — the one to "encour-
age," the other to "starve" subjects of the realm — Martineaux
Shuldham, who had been governor of Newfoundland three years, was
examined at the bar of the Commons. The material part of his
testimony may be thus stated: that the catch of fish in' 1774 was
following terms. It will be seen that he attributes the suspension of the vessel fishery
to the bounty system of France and the United States; and that he considers the em-
ployment of a naval force to prevent "aggressions," a mistaken policy.
To the Editor of the Times.
SIR: The leading article of the Times of the 3d inst., on the subject of the British
North American fisheries, involves a maritime question of such vital importance to the
permanence of our naval power, that I hope you will devote the corner of a column of
your paper (perused and pondered over by civilians and statesmen) to convey, in as
few words as possible, the real cause of the progressive decay, and now total abandon-
ment, of that once important nursery for seamen, with which the duties of my late
naval command required that I should make myself intimately acquainted.
The result of authentic information derived from official documents, most of which
were obligingly furnished by the zealous and indefatigable governor then presiding
in Newfoundland, (Sir G. LeMerchant,) proved that the British "bank" or deep-sea
fishery formerly employed 400 sail of square-rigged vessels and 12,000 seamen, and
that now not one of these follow their vocation in consequence of the ruinous effect of
bounties awarded by the French and North American governments. The former pay
their fishery lOf. for every quintal of fish debarked in the port of France, and 5f . addi-
tional on their exportation in French vessels to foreign States, once exclusively sup
plied by England — a transfer which cannot be viewed simply as a mercantile transac-
tion, seeing that the substitution of a greater number of foreign transatlantic fishing
vessels, having more numerous crews, constitutes a statistical difference amounting
to 26,000 sailors against England, without including the United States — a fact that
ought not, and, being known, cannot be looked on with indifference.
Transatlantic steam-packets receive national support, amounting to hundreds of
thousands of pounds a year, without complaint being made even by the most zealous
free-trade advocate, because such vessels may prove useful in war. How, then, can
the policy of granting a premium, thus forced upon us, in order to preserve our nursery
for seamen, be considered otherwise than the cheapest means of manning our ships-
of-war? Such premium, for the deep-sea fishery vessels resorting to Europe, ought
to be accompanied by immunity to our in-shore colonial fishermen from the tax on
foot, (from which the parent State is happily free,) and by a release from other
imposts, from which the French fisherman, under naval authority, is wholly exempt.
Brevity being essential to admittance into your columns, reference may be made
for important details to "Morris's Fishery of Newfoundland," containing petitions
and remonstrance of inhabitants, which assuredly have never been read by our
colonial administration, though pressingly urged for consideration.
Vessels-of-war are obviously not required for the protection of the deep-sea fishery
which has ceased to exist; nor are they necessary for the security of the undisturbed
colonial punts which fish in-shore. The stationing more vessels-of-war to guard the
fishery is therefore a mistake, originating in a want of knowledge of facts. Fish caught
by the British subjects cannot be sold with profit either in continental Europe or in
the United States. In 1849, the duty paid on British fish in the ports of the United
States was $163,000, while the premium awarded to their own fishermen was $243,432.
Those who desire further insight into the circumstances of our western colonies,
especially as regards the fisheries of Newfoundland, may consult a pamphlet pub-
lished by Ridgway, containing a statistical map, which ought to be brought to the
knowledge of those who possess the power to avert impending national mischiefs.
I am, sir, your often obliged and obedient servant.
DUNDONALD.
LONDON, August 4.
MISCELLANEOUS. 1177
739,877 quintals, and that 23,652 men were enployed in the fishery,
all of whom became sailors.
With regard to the fishermen of New England, he said that few of
them ever entered the British navy; that he had heard great com-
plaints of the outrages they committed on the coast; that they
carried on an illicit trade with the French, meeting them on the sea
and selling them not only provisions and lumber, but vessels also;
and that, in the French war, few of them had served in his Majesty's
ships-of-war.
At the peace of 1783, the English Newfoundland fishery — inter-
rupted by hostilities — was resumed with spirit, and prosecuted with
success; and three years after, the bounty act of 1775 was renewed
for a specified term. The condition of the colonists remained, how-
ever, without material change. I find it stated that a gentleman
formerly connected with Lord North's administration said, in the
course of his testimony before a committee of the Commons, that
"the island of Newfoundland had been considered, in all former times,
as a great English snip, moored near the Banks during the fishing season,
for the convenience of English fishermen;" that "the governor was con-
sidered the ship's captain, and all those concerned in the fishing business
as his crew, and subject to naval discipline."
This quaint witness spoke in 1793. The same year, another func-
tionary, in his testimony before the same committee, declared that
he would "allow no woman to land on the island, and that means should
be adopted to remove those" already there. Thus do we conclude the
eighteenth century; barely adding, that the influence of the mer-
chants was yet sufficient to prevent grants of lands, and that the
colonists raised a few garden vegetables for consumption only by
violations of State papers and the statute-book.
For the twenty years preceding 1815, the fishery was prosperous
beyond example. The profits to merchants engaged in it were some-
times fifty, sixty, eighty, and even one hundred thousand dollars in a
single season. Persons who commenced the business entirely des-
titute of capital, shared in these enormous gains, and accumulated
large fortunes in a short period. It would seem, however, that, as
previously, the advantages to the permanent residents were incon-
siderable, since the fishery was in the hands of English merchants,
whose adventures were conducted by agents, and of those who, on
amassing wealth, immediately departed from the island. A sudden
and disastrous reverse occurred.
The quantity of fish exported in 1814 was about one million two
hundred thousand quintals, of the value of more than twelve millions of
dollars. The quantity shipped in 1815 was hardly less; but the
peace produced a ruinous change in price. The decline from eight
and nine dollars the quintal, to five, four, and even to less than three
dollars, was rapid. Almost universal bankruptcy followed; for two
or three years entire suspension of the fishery was the result appre-
hended. For awhile, the few merchants who escaped insolvency,
utterly hopeless in the general dismay, were bent upon closing their
affairs. The common fishermen, in the years of prosperity, had
intrusted their savings to their employers, and the distress of this
class would have been diminished could these have been recovered;
but, losers by the failure ot the merchants to an amount exceeding
one million of dollars, and destitute alike of money and of employ-
1178 MISCELLANEOUS.
ment, their condition was extremely sad, and excited deep sympathy.
Thousands of persons depended solely upon the hook and line for
subsistence, and emigration or starvation were considered the only
alternatives.
The colonists, who rely upon the products of the sea for support,
charge the most of then1 misfortunes to their French and American
competitors. They did so in the case before us. Their complaints
were groundless, and may be dismissed in perfect good nature. The
people who distress them so continually, and whose appearance on
their fishing grounds spreads so general consternation, were fellow-
sufferers from the ruinous decline of prices of commodities at the
general pacification of Europe, and were involved in similar bank-
ruptcies. Besides, at the period of commercial disasters at New-
foundland, the French and Americans had not recovered from the
effects of war, and had not, to a very alarming extent, resumed their
adventures upon the coasts or "the banks" of that island.
The competition between the colonists and the people just men-
tioned increased; but the English fishery gradually revived. The an-
nual catch is now nearly a million of quintals. There have been sea-
sons of fluctuations since the years referred to: depression is an inci-
dent in every human employment. Maritime pursuits are more uncer-
tain than those of the soil or those of the work-shop. Of the fisheries,
particularly, it is entirely true to say that they never have afforded,
and never will afford, constant and continuous rewards; for, aside
from the losses consequent upon overstocked and glutted markets, the
most unwearied industry and the highest degree of skill are often
insufficient to insure good fares. Our colonial neighbors should take
these matters into the account, and while lamenting their calamities,
remember that the American fishermen, whose condition they con-
sider so much preferable to their own, are subject to the same reverses,
and would gladly surrender many of the privileges they are supposed
to enjoy, for the liberty of living near to, and of freely using, the inner
or shore fishing grounds, of which they are now deprived, and which
are reserved exclusively for British subjects.
As a branch of industry, we need pursue our inquiries relative to the
Newfoundland cod-fishery no further. The table of statistics, com-
piled from the best sources of information open to me, and which I
think is substantially accurate, may be referred to as affording a gen-
eral view of the subject for the last thirty years. The exports are to
Portugal, Italy, Spain, Brazil, the British West Indies, the British
continental possessions in America, to Great Britain, Ireland, and
Scotland. In some of these markets the merchants of Newfoundland
have no competitors. As much as they complain of us and of our
policy, our ports are open to the importation of their staple com-
modity, on terms which are producing alarming changes in the prop-
erty and prospects of those of our countrymen whose position on the
coast of New England, and whose habits and general circumstances,
leave them no choice of employments.
Newfoundland is connected with some of the most interesting events
to be found in our annals. Cabot saw it before Columbus set foot on
the American continent. There came the first men of the Saxon race,
under the first English charter, to found an English colony. Visitors
to, or residents upon its shores, were the noble Gilbert, and Raleigh,
the father of colonization in this hemisphere ; Mason and Calvert, the
MISCELLANEOUS. 1179
founders of two of the United States. Among those who lent aid and
countenance to the enterprises to people it, in early time, were persons
of rank and wealth — and Bacon, of world-wide fame. In its waters
were the first trials by jury in America. The freedom of its fisheries
was asserted by Coke, and other champions of English liberty, in tones
to rouse the popular mind, and to put an end to chartered monopolists.
In some respects Newfoundland is "a great English ship moored
near the Banks," even in the second half of the nineteenth century.
Twenty years have not elapsed since the system, which was hardly a
modification of that devised by heathen Carthage and Rome, for the
government of distant colonies, was abolished, or since captains in the
royal navy, who came to the island in the spring and returned to Eng-
land at the close of the fishing season, ceased to rule and to consider
the inhabitants as "subject to naval discipline;" and persons are now
alive who were the victims of the merchants "at home," who, armed
with ordinances and instructions of the Lords of Trade and Planta-
tions, insisted upon the entire control of the business, and of the
domestic arrangements of the residents.
For the first time, in a history of more than three hundred years, a
legislative body, similar to those of other British colonies, assembled
in Newfoundland in 1833. The only material changes of previous
dates were those which related to the administration of justice, and
which allowed the people the forms and principles of jurisprudence,
in place of the decrees and the decisions of the Knavish ana despotic
"admirals" in command of fishing vessels, and the quarter-deck man-
dates of their successors.
A few miles back from the coast, Newfoundland is almost an un-
broken wilderness. The inhabitants, as a body, are as ignorant of the
interior of the island as are others. To them, and to all the world, the
colony is known for its fisheries, and for these alone. To enumerate
St. John, Ferryland, Fugo, and Burin, and the settlements on the bays
of Concepcion, Trinity, Bonavista, Fortune, Bull's, Placentia, and St.
Mary's, is to recall almost every place of note. There was no free
port until 1828, and no bank until eight years later. From the dis-
covery of Cabot to the arrival of a bishop of the church, was three
hundred and forty-three years. The population in 1806 — about two
and a quarter centuries after the attempt of colonization by Gilbert —
was less than twenty-six thousand. It was less than seventy-four
thousand in 1836; and but ninety-six thousand six hundred and six
in 1845.
It remains to speak of the fishing grounds ; of the manner of catching
and curing, and of the habits of the persons who are employed in the
fishery. As the vessel or "bank" fishery has been abandoned by the
English, an account of it is reserved for the third part of this report.
The boats used for the shore fishery require from two to four men each.
The number of boats in 1838, was 6,159; and in 1845, 9,989. The
fishing is performed within the harbors, and early in the season, near
the land. The men stand while at their toil, and each is able to tend
more than one line. At times the fish fasten to the hooks so rapidly,
that the fishermen display great activity. A boat is often filled in two
or three hours. On trie shores are "stages," or buildings erected on
posts, and projecting into the sea, to allow boats to come to them as to
wharves or piers. The fish are carried to these "stages," where, in
the hands or the "cut-throat," the "header," the "splitter," and the
1180 MISCELLANEOUS.
"salter," as four classes of the "shoresmen" are called, they are pre-
pared for the "dryer." When sufficiently salted, they are washed, and
transported on "hand-barrows" to the "flakes," where they are
spread and dried. Once cured, they are piled in warehouses to await
sale or orders for shipment. The "salter" and the "dryer" should be
careful and expert men; the one to distribute the salt with a skilful
hand — tfye other, that damps and rains do not injure the fish while
exposed in the air. Three qualities are usually sorted for exportation,
and a fourth, consisting principally of broken and discolored fish, is
retained for consumption. Women and children are sometimes em-
ployed in the boats, and very frequently assist the curers on shore.
During the fishing season there are no idlers of either sex.
The labors of the fishermen and shoresmen are almost incessant.
The time devoted to sleep, under circumstances that often occur, is
insufficient for the demands of nature; while long abstinence from
food is not uncommon.
The fishermen formerly lived in the rudest of structures; but they
now occupy comfortable dwellings. Their food is coarse, and their
manners rough. Intoxicating drinks were once as common among
them as tea or water. Of late years there has been a sensible change
for the better; and a large class are moral and temperate. Their
habits of life are irregular, from the necessities of their position; but
in hospitality and acts of kindness they are not excelled by men of the
higher walks of society. They are to be judged in mercy, for their
opportunities to improve are few, and their temptations to err are
many.
English cod-fishery — Newfoundland.
English herring fishery, Newfoundland.
*******
THE NEWFOUNDLAND SEAL FISHERY, SO CALLED.
* * * * * * *
FISHERIES OF NOVA SCOTIA.
The original grantee of that half fabulous, never defined country,
Acadia, was Pierre de Gast Sieure de Monts, a protestant, and a gen-
tleman of the bed-chamber of Henry the Fourth of France. In 1603,
his royal master, by letters patent, gave him the territory between the
40th and 46th degrees of latitude, and in the following year De Monts
came in person to explore and take possession of his domains. Six-
teen years before the landing of the pilgrims at Plymouth, he wintered
upon an island in the river St. Croix, which, since the adjustment of
the boundary line between the United States and New Brunswick, has
been considered within the limits of Maine. This island is claimed by
the heirs of the late General John Brewer, of Robbinston. Relics of
De Monts' sojourn upon it continue to be found.
Annapolis — the Port Royal of the French — was founded before his
return, and is the oldest settlement in Nova Scotia. The "lieutenant
general of Acadia, and the circumjacent country," accomplished but
little. His patent allowed him to "carefully search after and to dis-
MISCELLANEOUS. 1181
tinguish all sorts of mines of gold and silver," and gave him the
monopoly of the trade in furs. He seems to have confined his atten-
tion to measures to secure the latter; yet fish were caught, cured, and
carried to France. A permanent fishery was established at Can-
seau. Acadia soon passed from De Monts into Catholic hands, while
the English grant to Sir William Alexander, in 1621, embraced a
large part of it. As the events connected with our subject at this
time appear in the account of the French fisheries, there is nothing to
demand our attention until after Nova Scotia was permanently
annexed to the British crown, by the treaty of Utrecht, in 1713.
Down to the period of our Revolution, Nova Scotia was hardly
known except for its fisheries. The resident English population was
so small in 1719, that Phillips, the military governor, was compelled to
select the council required by his instructions from his garrison.
Thirty-six years later, the whole number of inhabitants was estimated
at only 5,000. In 1760, the township of Liverpool was settled by
persons from Massachusetts, who designed to prosecute the salmon
fishery, and who, successful in their labors, caught a thousand barrels
in a season. They were followed in 1763 by about one hundred and
sixty families from Cape Cod, who selected the spot called Barrington,
transported thither then* stock and fishing vessels, and founded one
of the most considerable fishing towns at present in the colony. The
whole value of the imports at this period was less than five thousand
dollars. In truth, the House of Assembly asserted in 1775, that the
amount of money in Nova Scotia was £1,200, (or $4.800) of which
one-fifth was in the hands of farmers. Such was the general condition.
The settlement of Halifax, the capital, requires a more particular
notice. Thomas Coram, a famous projector of the time, whose name
occurs often in the history of Maine, engaged in a scheme to commence
a town on the site of this city as early as the year 1718, and his peti-
tion for a grant of land received a favorable report from the Lords of
Trade and Plantations; but the agents of Massachusetts opposed his
plans, because they interfered with the freedom of the fisheries, and he
was compelled to abandon his purpose.*
At the restoration of Cape Breton, in 1748, the founding of a capital
for Nova Scotia was undertaken as a government measure. "As a sub-
stitute" for Louisbourg restored to France, said Mr. Hartley in the
House of Commons, "you settled Halifax for a 'place d'armes, leaving
the limits of the province as a matter of contest with France, which
could not fail to prove, as it did, the cause of another war. Had you
kept Louisbourg, instead of settling Halifax, the Americans f could
not say, at least, that there would not have been that pretext for
imputing the late war to their account." The new city was named
in honor of the Earl of Halifax, the president of the Lords of Trade
and Plantations. \ "The site," says Haliburton, "about mid-way
between Cape Canseau and Cape Sable, was preferred to several
* It is said, in Burke's Commoners of England, that Major William Markham, (of the
family of Markham of Becca Hall,) who was born in 1686, built the first house in Halifax,
Nova Scotia.
fThis speech was in 1775.
j Horace Walpole wrote to Sir Horace Mann, in 1749: "Half our thoughts are taken
up — that is, Lord Halifax's are — with colonizing Nova Scotia; my friend, Colonel
Cornwallis, is going thither command er-in-chief. The Methodists will scarce follow
him, as they did Oglethorpe " to Georgia.
1182 MISCELLANEOUS.
others, where the soil was better, for the sake of establishing in its
neighborhood an extensive cod-fishery, and fortifying one of the best
harbors in America." Thus, Halifax was designed as a fishing capital,
and "as a substitute for Louisbourg." Liberal grants of land were
made to officers and men who were dismissed from the land and
naval service at the close of the war, and Edward Cornwallis was
appointed military governor. Horatio Gates, then an officer in the
British army, and subsequently the victor at Saratoga, was among
the first who landed at Halifax, in 1749.
The project involved the government in serious difficulties, and the
expenditure of enormous sums of money.
The amount first appropriated was £40,000. In a few years the
cost to the nation was nearly two millions of dollars! The fisheries
were neglected, and the colonists, unable to support themselves,
petitioned Parliament for additional relief, even after so large an
amount of money had been disbursed for their benefit.
Omitting details, we may state that five millions of dollars of public
money were expended finally in the colonization of Xova Scotia,
according to the plan devised by the Board of Trade and Plantations.
A letter is preserved in the Collections of the Massachusetts Histor-
ical Society, from a resident of Halifax to the Rev. Dr. Stiles, which
may afford a partial explanation to this state of things. It is dated in
1760. "We have," says the writer, "upwards of one hundred licensed
houses, and perhaps as many more'which retail spirituous liquors without
license; so that the business of one half the town is to sell rum, and of the
other half to drink it. You may, from this single circumstance, judge of
our morals, and naturally infer that we are not enthusiasts in
religion." Again: "Between this and Cape Sable are many fine har-
bors, commodiously situated for the cod-fishery; and the rivers
furnish great abundance of salmon." * * * * "The fleets and
armies which have been here during the war have enriched this town,
but have given a mortal blow to industry:" and, he adds, "we have
but few people of genius among us; and not one discovers a thirst after
Icnowledge, either useful or speculative."
Halifax became a place of note in the war of the Revolution, and as
the great naval station of the British government. At the peace of
1783, Nova Scotia became the home of many thousands of American
loyalists, who, under the policy adopted by the winners in the strife,
were compelled to abandon their native land. Many of them were
persons or elevated moral qualities, of high positions in society, and of
great spirit and enterprise ; several were natives of Massachusetts, and
graduates of Harvard University. Others had held prominent rank
in New York and New Jersey. From this period, we may date a
change in the morals of the colony, and note a partial attention to the
fisheries.
Omitting the few fragmentary accounts that are to be found scat-
tered through the records which I have examined, we come at once to
consider this branch of industry as it exists in our own time. And,
singular to remark, attention to the fisheries is still partial. No
American visits Nova Scotia without being amazed at the apathy
which prevails among the people, and without "calculating ' the
advantages which they enjoy, but will not improve. Almost every
sheet of water swarms with cod, pollock, salmon, mackerel, herring,
and alewives; while the shores abound in rocks and other places
MISCELLANEOUS. 1183
suitable for drying, and in the materials required for "flakes and
stages." The coasts are everywhere indented with harbors, rivers,
coves, and bays, which have a ready communication with the waters
of the interior; scarcely any part of which — such is the curious freak
of nature— is more than thirty miles distant from navigation. The
proximity of the fishing grounds to the land, and to the homes of the
fishermen, — the use that can be made of seines and nets in the mackerel
fishery, — the saving of capital in building, equipping, and manning
vessels, — the ease and safety which attend every operation, combine
to render Nova Scotia the most valuable part of British America, and
probably of the world, for catching, curing, and shipping the pro-
ductions of the sea.
Yet the colonists look on and complain of us. They will neither
fish themselves nor allow us to do so. In the words of a late official
report on the "Fisheries of Nova Scotia/' "From seven to eight hun-
dred [American] vessels are said annually to pass through the Gut of
Canso, which usually return home with large cargoes taken at our
very doors. There is always a great deal said about their encroachments,
and we are apt to blame them that our fisheries are not more productive
than they are, and, instead of engaging all our energies to compete with
them, we are employing a host of revenue cutters, <&c,, to drive them from
our shores. Everybody must see that the Americans are placed under
many disadvantages for prosecuting the fisheries in British waters,
and that if proper enterprise were employed, our advantageous position
would enable us not only to compete vjith them successfully, but also to drive
them from our shores by underselling them in their own markets. But
we find that they almost entirely monopolize our deep-sea fishery,
while we loolc idly on and grumble at their success." This covers the
whole ground; and coming, as it does, from the pen of a colonial
official, is conclusive.
Judge Haliburton, in his efforts to rouse his fellow-colonists from
their lethargy, adopting as his motto, that
"The cheerful sage, when solemn dictates fail,
Conceals the moral counsel in a tale,"
utters similar sentiments. His renowned hero, "Sam Slick," the Yan-
kee clockmaker, in the course of his "sayings," thus speaks of the
people of Nova Scotia, and of their advantages: "They do nothing in
these parts," says Sam, "but eat, drink, smoke, sleep, ride about,
lounge at taverns. * * * Thev- are a most idle set of folks, I tell
you. * * * They are in the midst of fisheries, squire; all sorts of
fisheries, too. River fisheries of shad, salmon, gasperause and herring;
shore fishery of mackerel and cod; bank fishery, and Labradore fish-
ery. Oh dear! it beats all; and they don't do no thin with 'em, but
leave 'em to us. * * * I never seed nor heerd tell of a country
that had so many natural privileges as this. Why, there are twice as
many harbors and water-powers as we have all the way from Eastport
to New Orleans. They have all they can ax, and more than they
desarve. * * * You've heerd tell of a man who couldn't see Lon-
don for the houses; I tell you, if we had this country you couldn't see
the harbors for the shipping."
The cod-fishery of the shores differs so little from the shore fisheries
at Newfoundland, St. Pierre, and Miquelon, already spoken of, that we
shall not here give an account of it. The vessel fishery, both on the
1184 MISCELLANEOUS.
coasts of Nova Scotia and at Labradore,* is also so nearly like our own,
that a description of it may be omitted to avoid repetition.
The herring fishery will detain us but a moment. The export of
smoked-herring has declined very much. Towards the close of the
last century the quantity shipped was from 50,000 to 60,000 boxes
annually. In some years, too, previous to 1819, the export was even
more, and from 80,000 to 100,000 boxes. At present the average is
less than half the quantity of either period. The natural advantages
possessed by the colonists of the shores of "Annapolis basin" are
unequalled in the whole world. Digby and Clements should be the
seat of the most extensive herring fishery in America. This fish, well
smoked and of approved color, is a great luxury for the forenoon lunch
and for the tea-table; and the time lias been when a herring-box
branded "Digby," or with the name of a well-known curer there,
passed as current in our markets, without examination, as coin
received at the mint. This is high but deserved praise. The whole
quantity smoked in 1850 was but 2,000 boxes. The scenery in the
vicinity of the "basin" is truly beautiful; and the "basin" itself is one
of the safest shelters for boats and vessels required for the fishery that
is to be found in America.
The mackerel fishery is in favor, and, compared with the cod and
herring fisheries, receives commendable attention. The present state
of this branch of industry is to be attributed to the recent change in
our tariff of duties imposed on foreign-caught fish, and to the facilities
afforded by our warehouse system. This change, it hardly need be
said applies to dried and smoked fish as well as to pickled; and, were
the causes just assigned the true ones, it might be concluded by those
who are not acquainted with the colonial character, that increased
exertions would be witnessed on all the fishing grounds. Explanation
* A Halifax paper, in the spring of 1852, indulged in the following course of remark:
"We learn that no less than twenty-five vessels cleared at this port for the Labrador
fishery on Saturday last. We have been much gratified with the improved appearance
of the schooners comprising our fishing fleet this season. The class of Nova Scotiamen
at present engaged in the fisheries would do credit to any country in the world, our
enterprising and energetic neighbors, the Americans, not excepted. Where all are
deserving of praise, it would appear almost invidious to particularize; but we must not
omit to chronicle a very superior craft which we observe receiving her supply of salt
alongside the brig 'Wellington,' at Oxley's wharf, called the 'Ocean Wave.' This
fine vessel was recently launched at Lunenburg by a Mr. Young, and was built expressly
for the fishing business. She appears to have been most carefully constructed, and her
outfit is after the most approved fashion. There is a reasonable probability of this most
important branch of provincial industry proving eminently successful during the pres-
ent season; and we can only hope that the desideratum may be realized to its fullest
extent. Our fishing friends cannot be too careful in curing their catch. The markets
for their valuable products are extending on every hand. It is essential that the char-
acter of this, our staple article of export, should be established beyond the shadow of
a doubt. Due attention to this matter will repay our fishermen a hundred fold for any
extra time, labor, or attention bestowed on the making of their fish. Let all interested
look to this all-important matter, and a rich harvest may be reaped in the future. It
is satisfactory to know that the parties who have this season fitted out for the fisheries
are, many of them, both forehanded and intelligent qualifications indispensable in
the successful prosecution of this valuable branch of industry."
In August, 1852, it was again said that, "We are enabled to record the gratifying
intelligence, that of twenty-seven vessels fitted out from ports in Lunenburg county
for the Labrador, twenty-six have returned well fished — one vessel bringing home the
handsome fare of 1,100 quintals. This almost unprecedented success is perhaps, in a
great measure, attributable to the vigilance of the revenue cutters stationed on the
coast by the Canadian government for the protection of the fisheries."
MISCELLANEOUS. 1185
is easy. The mackerel fishery is the least laborious and the most profit-
able.
I know something of the energy and skill of our fishermen, and
appreciate them highly; but I feel quite certain that under a system of
ad valorem duties their competitors in Nova Scotia and elsewhere in
British America will, ere long, supplant them in our own markets. As
has been already remarked, the colonists may take every kind of fish,
in any desirable quantities, at their very homes, and without the
expense of large vessels or extensive outfits; while the pursuit in the
more distant haunts of cod and mackerel is attended with less cost
than from the ports of Massachusetts and Maine — for the reason that
the labor, timber, iron, cordage, and canvass, necessary for the con-
struction and equipment of vessels, and the salt, hooks and lines, for
their outfits, are much cheaper. These advantages will be acknowl-
edged at once, and unless the observation of many years has led me
astray, they are too great to allow of the present reduced scale of
impost.
Severely as the late change of policy with regard to the admission
of foreign fish has been felt by all branches of our fisheries, the mack-
erel catchers have suffered the most. They still pursue the employ-
ment in the hope of the restoration of specific duties, and because then*
local position and other circumstances have not, as yet, allowed them
to adopt any other. As was said by Fisher Ames, soon after the organ-
ization of the present national government, when appealing for protec-
tion to our fishermen, " they are too poor to stay — too poor to remove."
It is even so. During certain months of the year our vessels seek
the mackerel in the waters of Nova Scotia and other British posses-
sions ; but as our treaty with Great Britain requires them to keep three
miles from the land, the fishery in the narrow straits, by the means of
nets and seines, is in colonial hands exclusively. The quantities of
fish which the colonists sometimes take in nets and seines are immense.
It is not long since forty thousand barrels were caught in three harbors
of Nova Scotia in a single season. This quantity is more than one-tenth
of the whole obtained by all the vessels of Massachusetts in the most pros-
perous year. Yet these three harbors can be entered in sailing a dis-
tance of twelve miles. The owners of American vessels often lose the
use of their property, and the expenses of outfits besides. The pro-
prietors of estates in the colonies where mackerel seines are used,
receive, on the other hand, hundreds of barrels of the fish caught in the
waters appurtenant thereto for the rent of these waters, and the privi-
lege of dressing, salting, and packing on the shores. To secure two,
four, six, and even eight hundred barrels at a time, it is only necessary
to set a seine, to tend it, and, at the proper moment, to draw it to the
shore. Competition without protection, when such rewards as these
await the colonial fishermen and land owners, who expend nothing
whatever for vessels, and whose whole outlay involves little beyond
the cost and wear of seines and the loss of time for short periods in a
season, is, I think, impossible. The lot of those of our countrymen
who live by the use of the hook and line is hard enough at best. The
battles which they have fought, and which, in the course of eA^ents,
they may be required to fight, ought to prevent their utter ruin. The
topic will be resumed elsewhere.
92909°— S. Doc. 870, 61-3, vol 3 36
1186
MISCELLANEOUS.
Macgregor, in his "Progress of America," published in 1847, thus
speaks of occurrences at Crow Harbor and Fox Island, two of the
favorite resorts of mackerel in Nova Scotia. "These places," he
remarks, "while the fishing season lasts, are generally the scenes of the
most lawless disorder and licentiousness, occasioned by the violence of
the fishermen contending for the best places to haul the seines ashore;
the pillaging of the fish; the selling and drinking of rum; the smuggling
of goods by the Americans; and often from the mere spirit of spoliation
and mischief. A ship-of-war has been occasionally sent round from
Halifax to preserve some sort of order among the multitudes of men,
boats, and schooners that resort to these harbors," &c., &c.
Statistics of the Nova Scotia cod, mackerel, and herring fisheries — mackerel exported included
with pickled fish exported until 1845.
Years.
Employed.
Exports.
No. ves-
sels and
shallops.
No. of
boats.
No. of
men.
Quintals
of dry fish.
Barrels of
pickled
fish.
Boxes of
smoked
fish.
Barrels
mackerel.
Barrels of
oil.
Value.
1788 . . .
*50,000
1805, 1806, 1807 ..
81,191
152,098
43,299
40,420
10,410
65,675
* 80, 000
1815, 1816, 1817. . .
1818
1828
174,017
100,640
42, 220
37,154
1832
570
640
8,641
2,840
$509,820
1833
1836
202,245
427, 140
434, 309
327,026
47,517
64,803
94,855
73,788
745,232
727,844
1837
1838
1840
27, 755
9,544
1843
240
3,400
10,000
1844
1845
302,520
274, 549
314,951
271,475
241,411
1 191, 802
196,434
54,190
52,718
35,064
32,544
55,570
47,786
163, 795
25,522
19,271
19,529
34,] 57
16,980
t3,234
15,409
49, 552
81,985
187,016
167,028
133,210
1846
""7,"096"
1847
1848
1849
1850
1851
812
5,161
10,394
100,047
941,896
* Estimated.
t From Halifax.
The number of nets and seines in 1851, by the official return, from which the statistics of that year are
derived, was 30,154. The population of Nova Scotia in 1851 was 266,117.
FISHERIES OF THE ISLAND OF CAPE BRETON.
The extraordinary value placed upon this island by the French, and
by the people of New England, as well as the expenditures and exer-
tions of both — the one to fortify and retain possession of it, the other
to capture it — have been considered in the first part of this report.
We may here, without repeating anything there stated, give a view of
the whole subject by an extract from the "proposals" of Robert
Auchmuty, of Boston, to the British ministry while in London, in
1744, the year previous to the expedition against Louisbourg under
Pepperell.
Auchmuty, it will be remembered, was a distinguished lawyer and
judge of the vice admiralty court for Massachusetts and New Hamp-
shire. The communication in question is headed "The Importance of
Cape Breton to the British Nation," and commences with the follow-
ing remarkable declaration: "This island, situated between New-
foundland and Nova Scotia, the English exchanged with the French
MISCELLANEOUS. 1187
for Placentia in the treaty of Utrecht; and during the late peace be-
tween the two nations the French, by the advantage of the place,
carried on an unbounded fishery, annually employing at least a thousand
sail, from two hundred to four hundred tons, ana twenty thousand men.
In the year 1730, there was a computation made of twenty-two hundred
thousand quintals offish at Marseilles, only for a market; and commu-
nibus annis* they cure above Jive millions of quintals. How dangerous
a nursery of seamen this island, therefore, has been, and ever will be,
while in their possession, is too obvious to a British constitution ; and
it is as demonstrable the recovery of a place of this consequence will
entirely break up their fishery, and destroy this formidable seminary
of seamen; for if they are happily removed from this advantageous
shelter, no protection is left for them on the fishing ground nearer than
old France." Such are the exaggerated statements and conclusions
of one of the most intelligent men of New England of the last century.
He, of course, did but embody and repeat to the ministry the opinions
expressed in Boston before his departure for England, and his decla-
rations are accordingly to be considered as those common at the time.
The number of quintals of fish caught and of vessels employed at
Cape Breton in 1744, which I have placed in the table of statistics,
though much less than Auchmuty's computations, and though author-
ized by authentic documents, and particularly by an official report of
a special agent of Governor Shirley, I consider too large.
That, however, the French fishery was extensive at this island, can-
not be doubted. But whatever allowance should be made in the esti-
mates and figures of exasperated rivals, enough remains certain to
show that there has been a great decline in this branch of industry
since Cape Breton became a possession of the British crown.
Louisbourg, the once .famous fortress, is now a heap of ruins. Even
the materials of which it was built have been carried away, to a very
considerable extent, to be used in the erection of structures hundreds
of miles distant. It is almost desolate. Those who visit it — with the
aid of the imagination — hesitate to believe that armies and fleets once
fought with desperate valor to retain and to win it; that the deep
silence which prevails was ever broken by crowds of busy people ; that
ships laden with rich cargoes ever anchored in waters wnich even fish-
ermen of our day seldom enter, except for shelter; that around them
were lofty and, as was thought, impregnable walls, aad nunneries,
palaces, terraces, and ga dens.
The English history of Cape Breton, as connected with our subject,
is brief.
Separated from Nova Scotia by a narrow strait only, it was an-
nexed to that colony, soon after its final cession, at the peace of 1763;
but in 1784 was created a province, and allowed corresponding rights
until 1820, when it was re-annexed to the government of Nova Scotia.
The population in 1839 was about 35,000, and in 1848 nearly 50,000.
Great as were the expectations of the conquerors, its fisheries have
never been of account since the conquest. The statistics indicate no
increase, but, on the contrary, a considerable decline. The exports,
at the present time, are less than in 1828. In fact, Cape Breton is the
poorest part of British America.
* One year with another.
1188 MISCELLANEOUS.
As late as 1840, a gentleman officially connected with its fisheries
gave a most lamentable description of the poverty of those who de-
pended upon them for subsistence. Having stated that, while in pos-
session of the French, the exports were of the immense value of
£927,577 sterling, that 564 ships and 27,000 men were employed, and
that the whole produce now was only 80,000 quintals, and 50 tuns of
oil, he proceeds as follows: "The fisherman is supplied at such ex-
tremely high prices, that, after his season's work is over, what he has
caught frequently does not amount to the cost of his outfits : thus he
returns to his family with a poor prospect of providing for their win-
ter's supply." "I have seen families," he continues, "covered with
scurvy, applying for medicine, and although they obtained it, were
informed by the doctor that it was fresh and wholesome provision
they wanted most; at which time one of the parties admitted that his
stock was reduced to some herrings and a few potatoes." "In like
manner," he adds, "when the militia muster took place, I knew of
some who came seven miles, and who, without money to purchase
food, returned home fasting."
Had the cases related by this functionary been such as exist in every
community, they would not have been thus mentioned. It is not to
be presumed, however, that while so great destitution is prevalent, it
is general among the fishermen of Cape Breton. Yet tales of their
wretchedness and poverty are common. Masters of our fishing ves-
sels, who visit the coast, have told me repeatedly that in the spring
they were beset by persons who offered to barter away almost their
last article of value, and even begged for food. To make every allow-
ance, we may still fairly conclude that those- who earn their bread in
fishing boats and shallops, as a body, enjoy few comforts, and often
suffer for the absolute necessaries of life.
The seas of Cape Breton, neglected, shunned even, as if a curse
rested upon them, and as if the spirits of the slain of a by-gone gen-
eration hovered over them, are as rich as they ever were; and as safe,
too, for the employment of capital, skill, and labor, as when the suc-
cessful adventures of the Catholic French roused all Puritan New
England in a crusade to possess them. Were these seas ours, we
should soon prove the truth of this remark. Could the descendants
of those who first won Louisbourg for its present nominal owners,
settle amid its ruins, the few fishers' huts that serve to mark its site
would disappear, and a thrifty, well-built town take their place. The
harbor is one of the best on the eastern coast, and the situation such
as to render access to the fishing grounds in the waters of the St.
Lawrence easy. In a word, distant, lone, and dreary as is the ancient
fishing capital of France, enterprise and industry are alone wanting
to restore it, in some measure at least, to importance and prosperity.
MISCELLANEOUS.
Statistics of the fisheries of the Island of Cape Breton.
1189
Years.
Produced.
Employed.
Exports.
Dried
fish.
Pickled
flsh.
Seal-
skins.
Oils.al!
kinds.
Value.
Boats
and
shal-
lops.
Ves-
sels.
Dried
fish.
PicMed
fish.
Seal-
skins.
Value
of oils.
Total
value of
ex-
ports.
Quintals.
Bar-
rels.
No.
Tuns.
Dol-
lars.
No.
No.
Quin-
tals.
Bar-
rels.
No.
Dol-
lars.
Dol-
lars.
1744...
1828...
1,441,500
564
C90
41,320
15,577
18,140
8,006
1845...
820
93,635
1847*..
1848*..
1849..
50,312
39,330
32,919
36,907
12,100
2,200
415
543
302, 616
282, 772
1,341
184
175
12, 680
16,117
8,856
106,801
* Of these, 17,200 barrels mackerel in 1847, and 14,050 barrels in 1848.
FISHERIES OF PRINCE EDWARD ISLAND.
Prince Edward Island is in the Gulf of St. Lawrence, and is one
hundred and seventeen miles long.
Cabot, in 1497, after losing sight of Newfoundland, and on the 24th
of June, saw other land, to which, in honor of the day, he gave the
name of St. John. The discovery was assumed to be this island, and
it bore the name of St. John for a long period. The French, claiming
that Verrazani was the first discoverer, granted it — in 1663 — to the
Sieur Doublett, a captain in the navy, to be held by him in vassalage
of the royal company of Miscou. The Sieur's associates were two
companies of fishing adventurers from St. Maloes and elsewhere in
France, whose settlements upon the island were confined to places on
the coast suited to their pursuits.
The French from Nova Scotia and Cape Breton emigrated thither
until the government, to prevent the depopulation of Louisbourg, pro-
hibited fishing except in certain harbors.
In 1758 the isle St. John surrendered to the British; and at the
peace of 1763, was permanently annexed to the crown of Great
Britain. The population was about 6,000. There were several
thousand "black cattle" owned by the inhabitants at this time; and
the cultivation of the soil was so extensive that it was called the
"granary of Canada." Among the proprietors of land in 1775 was
General Charles Lee, who owned a tract of ten thousand acres, on
which he had expended about five thousand dollars. As he had been
an officer in the British army, and had served in America, it may be
presumed that this estate was a grant from the crown.*
At the peace of 1783, the isle St. John became the home of several
of the "tories" or loyalists of the Revolution, and, the following year,
was formed into a colony and called Prince Edward Island. The
population in 1806 was less than 10,000; in 1841 it was upwards of
47,000.
* General Charles Lee was a colonel in the British army, and served in America in
the French war. He lost the favor of the ministry by his course in the revolutionary
controversy, and entered the service of Congress. His dislike of Washington was the
cause of his ruin. He died at Philadelphia in 1782.
1190 MISCELLANEOUS.
The north and south coasts are much indented with bays and coves,
and the waters teem with fish. But as the soil is generally good, and
owned by persons of skill and property, the fisheries are much neg-
lected. Various attempts have been made to induce greater attention
to maritime pursuits.
In 1842, it is believed that a company was formed in England, with
a capital of several hundred thousand dollars, to promote this object.
The plan of this association was, as is said, to purchase land for a
town, erect buildings, and send over two thousand persons. Of its
actual operations and success I have no knowledge. In 1844 the gov-
ernor of the colony, "in a speech from the throne," recommended the
organization of a company for the prosecution of the fisheries.
Mackerel are at times abundant. A single example will suffice: In
1848 an American schooner was dismasted, and put into Georgetown
to repair. Having refitted, she went to sea, and returned to port with
eighty barrels of fat mackerel, after being absent only one week. The
fish were taken, however, in two days, the weather interfering with
operations during the remaining part of the time.
The exports of Prince Edward Island are not large, and often
merely nominal; the catch of the various kinds of fish hardly exceeding
the demand for domestic consumption.*
During the season for fishing our vessels frequent the coasts in fleets;
and as many as six or seven hundred .have been seen in the vicinity of
the island in a single year.
Captain Fair, of the royal navy, in command of her Majesty's
ship the Champion, who was upon the station in 1839, passed the
number here stated, and bears honorable testimony to their good con-
duct.
The feelings of the inhabitants towards our countrymen may be
ascertained from the following resolution, which is understood to have
passed the House of Assembly unanimously during the session of 1852:
"Resolved, That a committee be appointed to prepare an address to
her Majesty the Queen, praying that she will cause to be removed the
restrictions of the treaty of 1818, prohibiting American citizens from
fishing within certain prescribed limits on the shores of the island;
provided the American government admit articles the growth or pro-
duction of this island into the United States duty free, in accordance
with the act 12 Vic., cap. 3, including fish; also, vessels built on this
island to American registry; and that the legislative council be re-
quested to join in the said address."
FISHERIES OF THE MAGDALENE ISLANDS.
The Magdalene Islands fisheries are of consequence. These islands,
seven in number, are in the Gulf of St. Lawrence, and about forty
miles northwesterly of Cape Breton. They originally belonged to the
French, and were first granted, I suppose, in 1663, to the Sieur Dou-
blett and his associates, as a fishing station, under the feudal tenure, as
a fief of the royal company of Miscou. After they became possessions
of the British crown they were granted to Richard Gridley, of Massa-
chusetts, who served under Pepperell at the siege of Louisbourg, who,
* The value of the products of the sea exported in 1851, was only $38,776; while
of the single agricultural article of potatoes, the value was $47,568.
MISCELLANEOUS.
1191
in 1775, laid out the works on Bunker's Hill, and who was retained by
Washington as chief of the engineer department of the continental
army.*
The Magdalene islands are thinly inhabited, at the present time, by
fishermen, many of whom are the lineal descendants of the Acadians,
who made the first permanent settlement in North America, under De
Monts, the original French grantee of Acadia, or Nova Scotia. The
fishermen of Acauian descent retain to this day the dress, the customs,
language, and religion of their ancestors.
The herring fishery at these islands at times is very extensive. The
catch, in some seasons, has been from eighty thousand to one hundred
thousand barrels ; and as many as one hundred and fifty vessels from
the United States have been seen there at once. The quality of the
fish is, however, poor, and the curing and packing carelessly performed.
I have seen whole cargoes that, unfit for human food, were entirely
worthless, except as dressing for grass lands.
Large seines are used in the fishery, and hundreds of barrels are
often taken at a single haul. The inhabitants welcome the arrival of
our fishermen, and treat them kindly. No serious difficulties have
ever occurred, and in no part of British America, probably, have the
relations of the people of the two nations been more intimate or more
harmonious.f
By a singular arrangement, these islands are included in the govern-
ment of Canada. As communication with the capital of that colony
is interrupted by ice and inclement weather nearly half of the year,
and is generally free with Nova Scotia, annexation to the latter is
much to be desired.
Statistics of the year 1848. — Exports.
dried lish.
Barrels of
pickled fish.
Boxes of
smoked
fish.
Number of
seal-skins.
Gallons seal
and cod oil.
Value.
34,448
17,574
6,115
21,308
114,403
$223,796
* Whether Colonel Gridley retained the ownership of these islands until the Revolu-
tion, and lost them in consequence of the part he took in that event, is unknown to
me. But the Magdalenes were a second time granted by the British crown. The
last grantee was the late Admiral Sir Isaac Coffin, who, at his decease, is understood
to have bequeathed them to Captain John Townsend Coffin, of the royal navy, to be
held by him and his heirs male, in strict entail. Captain Coffin leased these islands
for the term of his life, it is believed, in the spring of 1852, to Benjamin Wier, of Halifax,
and John Fontana, a resident at the Magdalenes.
t Perhaps the year 1852 forms an exception. There was a difficulty of some sort in
the spring, but the exact facts have not been ascertained. The Halifax Sun, in giving
an account of the trouble, says: "The Americans, not satisfied with infringing the
provisions of the treaty by casting their nets side by side with the British residents
and subjects within the limits prescribed, per force of numbers and audacity took
possession of the fish in the nets of their competitors. The indignant residents rallied
in strong force; an American vessel and crew were captured in way of reprisal, and
taken into harbor. The Americans during the night following gathered in their
strength, and triumphantly 'cut the vessel out, ' leaving the skipper, however, in
durance under lock and key. "
1192 MISCELLANEOUS.
FISHERIES OF THE BAT OF CHALEURS.
The Bay of Chaleurs was explored by Jacques Cartier, in 1534.
He gave the name it bears — the "Bay of Heat." On its shores are
some of the oldest settlements in North America.
As at the Magdalene islands, many of the fishermen here are Aca-
dian French, a people whose story possesses a melancholy interest, and
whose sufferings at an eventful period of their history have been com-
memorated by the poet Longfellow, in "Evangeline." They continue
to live in villages distinct from the English settlers, and within sound
of the chapel bell. The most devout and decided Catholics, they sel-
dom intermarry with Protestants. After the services of Sunday, they
assemble for social enjoyment and amusement. Few of them are cor-
rupt and vicious, but most are superstitious and ignorant. The
women, like those of the ancient fishing-town, Dieppe, in France, from
which their ancestors came, wear calico caps or handkerchiefs tied
over the head, short petticoats of woollen stun striped with red, white,
and blue, and plaited in large folds at the waist, and blue stockings;
while on Sunday, over a neat and clean attire, they throw upon the
shoulders a small blue cloak, reaching about half way down the body,
and fastened at the breast with a brass brooch. The men appear in
short round jackets, with straight collars and metal buttons set close
together, blue or scarlet waistcoats and blue trowsers, and sometimes
the bonnet rouge, but generally round hats. Individuals, however, of
both sexes, dress differently. The women, or "fish- wives" — as at the
fishing ports of Normandy, Piccardv, and Brittany, in France — work
very hard, performing the whole labor of curing the fish, in addition
to the ordinary duties of cooking, spinning and weaving, and the care
of the children.
The cod-fishing establishments in this bay are ancient and exten-
sive. Of those of modern times, that of Messrs. Robin & Co., founded
in 1768, is the largest, best ordered, and most prosperous. They
have a number of finished buildings, which are conveniently arranged,
and kept in excellent repair. They export about 30,000 quintals of
cod annually, besides a quantity of pickled fish and oil. Their vessels
come from the Isle of Jersey in the spring, are dismantled on arrival,
and lie moored until the close of the fishing season; the masters and
crews either fishing in boats, or collecting the fish caught by residents,
who obtain their supplies and outfits of the firm. In the autumn the
vessels are equipped, and depart for Europe with full cargoes. It is
said that the first head of the firm, the late Charles Robin, among
other rules for the management of the business, directed in his will that
no female should reside at, or be employed at any of the fishing estab-
lishments of the concern; and that, in accordance therewith, the gen-
tlemen and clerks of the present firm of Robin & Co. leave their
families in Jersey while sojourning in the Bay of Chaleurs.
The fishery is carried on almost entirely in boats, two persons in
each, who return home every night and land the day's catch. At the
close of the season the resident fishermen settle with the merchants
with whom they deal, carrying to their storehouses all the fish not
previously collected by their agents.
The whale fishery is pursued to some extent in the Bay of Chaleurs
and the adjacent seas. "The whales caught within the Gulf of St.
Lawrence," says Macgregor, "are those called 'hump-backs,' which
MISCELLANEOUS.
1193
yield, on an average, about three tuns of oil. Some have been taken
seventy feet long, which produced eight tons. The mode of taking
them is somewhat different from that followed by the Greenland
fishers, and the Gaspe fishermen first acquired an acquaintance with it
from the people of Nantucket. An active man, accustomed to boats
and schooners, may become fully acquainted with everything con-
nected with this fishery in one season. The vessels best adapted for
the purpose are schooners of from seventy to eighty tons ourden,
manned with a crew of eight men, including the master. Each
schooner requires two boats, about twenty feet long, built narrow and
sharp, and with pink sterns; and two hundred and twenty fathoms
of line are necessary in each boat, with spare harpoons and lances.
The men row towards the whale, and when they are very near, use
paddles, which make less noise than oars.
"Whales are sometimes taken fifteen minutes after they are struck
with the harpoon. The Gaspe fishermen never go in quest of them
until some of the small ones, which enter the bav about the beginning
of June, appear; these swim too fast to be easily harpooned, and are
not, besides, worth the trouble. The large whales are taken off the
entrance of Gaspe bay, on each side of the island of Anticosti, and up
the river St. Lawrence as far as Bique."
In GaspS basin — I ascertain from another source — the whale fishery
is one of the chief means of support. Yet the number of inhabitants
is small. Four or five schooners of the size mentioned by Macgregor
are employed, and probably two hundred men. The produce is about
20,000 gallons annually. The basin is safe, commodious, and easy of
access. The whales are taken at and near its entrance in the spring,
and around the island of Anticosti and on the north shore of the
St. Lawrence in the summer.
The fisheries of Canada, other than those of the Magdalene islands,
Bay of Chaleurs, and Gulf of St. Lawrence generally, are too incon-
siderable to require attention. While Canada was a possession of
France, the seas were neglected. Twenty years after the conquest the
exports of fish were small. From Canada proper there has been no
increase, as will be seen.
Exports from Canada, (proper.)
Years.
Quintals
dried
fish.
Tierces
salmon.
Smoked
salmon.
Tuns oil.
Value.
1783
941
304
505
1784
2,145
221
100
1785 . ..
5,346
438
1780
885
1,100
253
185
1849
823,220
Exports from Quebec, Gaspe, and New Carlisle, presumed to be of the produce of the Bay
of Chnleurs fisheries.
Years.
Quintals
dried
fish.
Bills.
picVled
fish.
No. seal-
skins.
Gallons
fish
oil.
Value.
Ig32
55,924
2,%2
4,675
27,681
$160,262
1838
45,116
1,618
9,513
177,067
1843
61,448
858
28,890
192,898
1848
87,137
3,667
6,548
34,292
359,209
1194 MISCELLANEOUS.
FISHERIES OF LABRADOR.
The coast of Labrador was partially explored by Jacques Cartier
in 1534. He was beset with ice, and encountered many difficulties.
Little was known of the country for a long period after the voyage of
the French navigator. It has been said, however, that our cod-
fishery was extensive in this region, not only previous to the Revolu-
tion, but in the earty part of the last century. The statement I con-
sider entirely erroneous. As I have examined the scattered and frag-
mentarv accounts of Labrador, there is no proof whatever that its
fishing grounds were occupied by our countrymen until after we be-
came an independent people.
In 1761 Sir Francis Bernard, who was then governor of Massachu-
setts, wrote a brief "Account of the coast of Labrador/' which —
found among some of his papers — is preserved in the Collections of
the Massachusetts Historical Society. After some general remarks
upon the country, and the ignorance that existed relative to the
natives, he proceeds to say that, "What follows shall be a plain nar-
ration of facts, as I received them from several persons who have been
on the Esquimeaux coast, with now and then a digression, which I
hope may be pertinent." These persons appear to have been Cap-
tain Henry Atkins, of Boston, who made a voyage to Davis's straits
in the ship Whale in 1729, and who visited the coast a second time in
1758, and a Captain Prebble, who was sent by Atkins in 1753. The
Baronet describes the course of affairs between Atkins and the Indians
in 1729, and adds that he "is the more particular in this account
from the captain's own mouth, as he thinks it plainly indicates that
the natives on this coast and islands had never any trade or com-
merce with any civilized people from Europe or America; of course
not with the French from Canada, or the Hudson's Bay factories."
This is conclusive, especially if it be remembered that the object of
Sir Francis was to collect information "for the advantage of future
navigators." His memory was remarkable, and he himself said that
he could repeat the whole of Shakspeare. Of course, this paper em-
braced everything that had been communicated to him.
As late as 1761, then, it is not probable that fishermen of any flag
had visited the waters of Labrador. An account of the origin of our
own fishery there will be found in the proper place.
The English whale and seal fisheries were the first, and employed
upwards of one hundred vessel, at times, prior to the year 1775. The
earliest adventures were near 1763; as at that time the Labrador
country was politically separated from Canada, and annexed to the
government of Newfoundland by royal proclamation, to the end that
the "open and free fishery of our subjects may be extended." The
pursuit of the cod and salmon followed. Meantime the Moravians,
whose principal settlement is at Nain, who have ever led a quiet and
simple life, and who now annually ship furs, oils, and other produc-
tions of that region to England, in payment for the manufactured
commodities which they require, had founded a colony.
The islands are so numerous and so near each other as to resemble,
and often to be mistaken for, the main land. Back from the coast, the
country is still unknown. Labrador still forms a part of the colony
of Newfoundland. The natives bear the general name of Esqui-
meauxs. The resident inhabitants of European origin are English,
MISCELLANEOUS.
1195
Irish, Jerseymen, and Canadians, who are employed either on their
own account, or as the servants of others, as furriers, seal-catchers,
and cod and salmon fishers.
The fishing establishments of the English and Jersey merchants
are extensive and well conducted. They are engaged in the cod and
salmon fisheries, and in the taking of seals. In the year 1831, the
value of their shipments to Europe was upwards of $200,000. The
number of these commercial houses is from ten to twelve, who man-
age their business at Newfoundland, either by the temporary presence
of junior partners or clerks, or by resident agents.
The people of Newfoundland, averring that the French and Ameri-
cans have driven them from their own "bank fishery," resort to Labra-
dor. They employ two or three hundred vessels. A part make two
voyages in a season. The first fare is commonly cured on the coast;
but the second is carried home without drying. Some of the mer-
chants of Newfoundland ship both cod and salmon directly to corre-
spondents in Europe; while others order their captains to return to
me island and unlade their fish and oil at their own warehouses.
The Canadian fisheries are small. They send eight or ten vessels
to the coast, with eighty or one hundred men. They fish for cod and
salmon. They carry a part of what they catch to Quebec, and send
a part to Europe.
The colonists of Nova Scotia and New Brunswick adventure at
Labrador to a considerable extent; but they do not pursue the busi-
ness as regularly and with as much system as do those of Newfound-
land. Sometimes they send more than one hundred vessels in a year;
at others the number is much less. They engage principally in the
cod fishery, making a single fare and curing their fish at home.
The Labrador fisheries have "increased more than six-fold," says
Macgregor, "principally in consequence of our fishermen [the Eng-
lish! being driven from the grounds now occupied by the French"
since the year 1814; and he estimates that about twenty thousand
British subjects are at present required during the fishing season in
the catching, curing, and transporting the various products of these
remote seas.
Statistics.
Year.
No. of
vessels.
No. of
men.
Quintals
dry fish
produced.
Tierces
salmon
pro-
duced.
Num-
ber of
seals
caught.
Tuns
oMs pro-
duced.
Value.
1R°9 ...
608
9,110
678, 000
1,682
1831
700
11,200
720,000
2,430
16,000
2,200
$1,450,000
FISHERIES OF NEW BRUNSWICK.
There were French fishing establishments in that part of Acadia
now known as New Brunswick, as early as 1638. The English suc-
ceeded to these at the treaty of Utrecht, in 1713; but they do not seem
to have formed many others until after the cession of Canada, in
1763*. Among the first, I suppose, was that of Lieut. Walker, of the
* The French built two forts on the river St. John prior to the peace of Utrecht, (1713,)
which they repaired in 1754, although the country had been ceded to England quite
half a century.
1196 MISCELLANEOUS.
royal navy, in the Bay of Chaleurs, which was extensive, controlling
the fur and fish trade of that region for several years. There were
similar settlements on the river St. John; but from the estimates of
Mr. Grant, made in 1764, at the request of the Rev. Dr. Stiles, the
whole population of British origin could not have exceeded one
thousand.
At the peace of 1783, several thousand "tories," or loyalists, com-
pelled to abandon their native land, settled in New Brunswick, and
transferred thither the jurisprudence, the social and political institu-
tions, of "the old thirteen;" and, the year following, were allowed to
organize a separate colonial government. Like those who went to
that part of Acadia still called Nova Scotia, many of the loyalists
were gentlemen of education, eminent private virtue, and distin-
guished consideration. Some obtained offices of honor and emolu-
ment; others adopted agricultural pursuits; and another class, fixing
their abodes on islands and the shores of the main land, resolved to
earn their support on the sea. Of the latter description, several,
though compelled to toil and exposure in open fishing boats, had been
persons of note and property. But, ruined by the confiscation laws
of the whigs, or by the general disasters of a civil war, they resorted
to the hook and line to relieve the pressure of immediate want, in-
dulging the hope of "better times," and more congenial avocations.
Few, however, abandoned the employment, and their children,
trained to it from early youth, and acquiring fishermen's habits, suc-
ceeded to boats, fishing-gear, and smoke-houses, as their only inher-
itance, and continue it at the present day. I have often met with
common boat fishermen of this lineage, whose earnings were hardly
sufficient to procure the absolute necessaries of life.
The fisheries of New Brunswick are prosecuted with neither skill
nor vigor. The apparent exports, small as are the statistics, do not
indicate their real condition; since it is certain, that of the products of
the sea shipped to other countries, a part is first imported from Nova
Scotia, and form a proportion of the exports of that colony.* The
number of vessels sent to Labrador and other distant fishing grounds
is never large, and often almost nominal. The cod-fishery in the
Gulf of St. Lawrence and the Bay of Chaleurs is not as extensive as
might be reasonably expected from the long experience of the inhab-
itants there, and the general safety and productiveness of the harbors
and indentations of the coast.
The same remarks need slight qualification when applied to the Bay
of Fundy , and its principal branch, the Bay of Passamaquoddy . Cam-
eron's, Doggett's, Drake's, Woodward's, Money, and Whale coves;
Dark harbor, Long's eddy, Grand harbor, and Long, Duck, Nan-
tucket, and Kent's islands, which are all in the group of islands known
as "Grand Menan," afford excellent facilities for catching and curing
cod, pollock, and herring, in large quantities. In the waters that sur-
round Campo Bello, Deer, and Indian islands, as well as in those that
wash Bean's, Adams's, Parker's, Minister's, Hardwood, and Fish
islands, and along the coast between L'Etite Passage and Point Le-
preau, embracing Mace's, and Back bays, Bliss's island, Seely's cove,
Crow, Beaver, and Deadman's harbors, the advantages for fishing are
*The imports into St. John from Nova Scotia for three months only (July 10 to Octo-
ber 10, 1852) of the present year, were 7,861 quintals of dried fish, 860 barrels of
mackerel, 2,423 barrels of herring, and other pickled fish.
MISCELLANEOUS. 1197
very good. Every place here mentioned is within a few hours' sail of
the frontier ports of Maine, and many of them are within cannon-shot
distance of the shores of the United States. The fishermen of both
countries meet on the same fishing grounds; borrow and lend "bait;"
ask after each other's "woman"* at home; narrate the wonderful cures
of the last-discovered remedy for the "reumatis;" complain of the
"scacity" of fish, and the low price of "ile;" discourse about "flat-
hooped flour;" and generally conduct towards one another as friends
and brethren, owing allegiance to one government. Indeed, the ob-
servation of quite twenty-five years authorizes me to say that the
colonists always agree far better with the Americans than with each
other. Our countrymen are not often considered interlopers when
they leave the fishing grounds nearest home and visit those of Grand
Menan; but the fishermen of Campo Bello, and the other islands on the
British side of the Passamaquoddy, are sometimes roughly accosted
and ' ' twitted " when they venture to take the same liberty. Frequent
attempts have been made to disturb the friendly relations which have
generally existed between the people of the two flags, but without suc-
cess. The efforts of officious individuals, and of functionaries of the
colonial government, have been alike disregarded. The captains of
the British ships-of-war on the station, gentlemen in their feelings,
have steadily refused to stoop to wage a petty warfare against the
American boats that cross the imaginary boundary line in the waters
of the Passamaquoddy, though, of course, they have always obeyed
their instructions. Yet, in the spirit of Nelson, who looked at the
signal he meant to disobey with his blind eye, they have never been
able to see a " Yankee," or to distinguish one from a subject of her Maj-
esty. Some of them — as I remember the stories of by-gone years — ad-
mitting the necessity of driving off the aggressors, have asked, "How
are we to know them — are they marked?" Others, sending their barges
into the fleet of boats, have directed that "All who say they are Ameri-
cans must be told to go to their own side of the line;" but, strangely
enough, the unbroken silence of the fishermen to whom the question
was propounded afforded proof that all were "Bluenoses." Still
others, satisfying themselves, by peering through glasses from their
quarterdeck, that all the boats in sight must belong to the islands in
New Brunswick, have thought the sending of barges to inquire a
needless ceremony. One, in 1840 — the captain of the Ringdove — in
his official report, recommended that "every British boat should have
a license;" otherwise, said he, "it is impossible to discriminate them
from Americans."
Those who seek to put an end to this state of things, whatever their
motives, do not take into the account that the instant they shall ac-
complish their object, border strifes will follow of necessity. Before
renewing their efforts, they may be kindly asked to consider that har-
mony and good-fellowship between the inhabitants of frontier settle-
ments are indispensable, and far better securities against the
marauder's torch and bludgeon than armed ships or bodies of troops.
The produce of the boat-fishery of the Bay of Fundy, and of the
Passamaquoddy, is not only small hi value, but generally inferior in
quality. An increase of this fishery, under present circumstances, is
*They thus speak of their wives.
1198 MISCELLANEOUS.
not desirable. The fishermen dress and cure the cod, pollock, hake,
and haddock — the kinds usually dried — in a slovenly manner.
These fish, besides being rough and dirty on the "split face," fre-
quently " slime," and thus are unfit for use. They also smoke, pickle,
and pack the herring without skill and care, and decay is the conse-
quence. There is no excuse whatever for such a course of conduct,
and every offender should be held to punishment. The gentlemen of
New Brunswick who complain of the decline of their fisheries, and
who seek to encourage them by private "associations," and by gov-
ernment "bounties," should endeavor, first of all, to devise a plan to
improve the reputation of the fish of this part of that colony among
dealers and consumers.
I find it stated in an official document* that in 1850, at the different
fishing-stations mentioned as within these bays, there were employed
62 vessels of 1,268 tons, 344 open boats, 55 weirs, and 1,337 men, in
catching and curing the several kinds of fish just referred to; and
that the value of the products of the various branches of the fishery
was £33,080 f currency, or $132,320.
These facts show that the fishermen received a miserable pittance
for their toil; since, without allowing for the use and depreciation of the
capital invested in the vessels, boats, weirs, nets, and other fishing-gear,
they earned for the year less than one hundred dollars each. We may
lament that men who pursue their avocation both day and night, mid
rains and gales, are so poorly rewarded. We may lament, too, that
the people of Grand Menan, falling short of those of Campo Bello,
West Isles, and the parishes on the coast of the main land, earn even
less than the average. But, what then? The fault is their own; en-
tirely so. They may, if they will, produce as sweet and as well-cured
pollock and cod as do their brethren of Barrington, and as good col-
ored and flavored smoked herring as do those of Digby, and obtain
prices to correspond with the quality.
The general poverty among them is not to be attributed entirely or
principally, as they aver, to the occasional loss of boats and nets, nor
to glutted markets and bad seasons, nor to the interlopers who visit
their fishing grounds, but to their own want of industry, thrift, clean-
liness, and honesty. The few "who work it right," acquire property,
and enjoy the entire confidence of the dealers, command credits for
supplies, and high prices for their commodities when offered for sale.
It remains to speak of the fisheries of the Bay of Chaleurs, and of
the Gulf of St. Lawrence. The county of Restigouche borders on
Canada, and the counties of Gloucester, Northumberland, and Kent,
are favorably situated for adventures in these waters. The fishing
grounds are safe, and generally close to the shores; and those near
Caraquet, in Gloucester, are much frequented by boats from Gaspe,
and owned by residents of Canada. Since 1835, the catch of both
* "Report upon the fisheries of the Bay of Fundy, by M. H. Perley, esq., her
Majesty's emigration officer at Saint John, N. B.; laid before the House of Assembly
by command of his excellency the lieutenant governor, and ordered to be printed,
15th March, 1851." To this minute, carefully-prepared, and valuable State paper,
I am much indebted for statistics and other information. Mr. Perley's endeavors to
improve the condition and develop the resources of New Brunswick, are entitled to
the highe3t commendation of his fellow-colonists.
f No statistics for Grand Menan are given. Mr. P. says a dealer estimates the value
in 1849 as £12,000, which, in accordance with Mr. P.'s suggestion of being too high, I
assume to have been £11,000.
MISCELLANEOUS. 1199
cod and herring by the fishermen of Restigouche and Northumberland
has fallen off more than half, and in Kent has nearly become extinct.
But the inhabitants of the port of Caraquet, availing themselves of
the advantages of their position, have actually produced a large pro-
portion of the dried cod exported from the colony for some years.
These four counties are more remote from the capital of New Bruns-
wick, and from the markets of the United States, than the county of
Charlotte, which embraces Grand Menan, and the other islands in the
Bay of Fundy, (where the fish are so badly cured,) and the attention
of the people is divided between several branches of industry; but
fishing, as an occasional and irregular employment merely, has com-
monly proved a source of profit, or at least has afforded a fair reward
for the labor and capital devoted to it. The fish shipped at Caraquet
are in much better repute than those caught in the Bay of Fundy,
and the remark is true of the produce of the Bay of Chaleurs and St.
Lawrence fisheries generally. It may be presumed that there the
herring does not "become rotten before salting;" that, when sold as
the "gibbed" article, it is not packed without taking out the entrails;
and that the cod is washed after being split, and not "salted and put
in 'kinch' in all its blood and dirt."
This brief notice of the fisheries of New Brunswick would be incom-
plete without a description of the boat-fisherman of the Bay of Fundy,
whose professional faults I have so severely rebuked. Bred to the use
of boats from his earliest youth, he displays astonishing skill in their
management, and great boldness in his adventures. He will cross, in
the stormiest weather, from island to island, and go from passage to
passage, through frightful whirls of tides, which suddenty meet and part
with a loud roar;* and he will dive headlong, as it were, upon rocks
and bars, merely to show how easily he can shun them, or how readily
and certainly he can "go about" and "stand off on the other tack."f
He is neither a landsman nor a seaman, a soldier nor a marine; but you
would think by his talk that he could appear to advantage in either of
these characters. He is neither a merchant nor a mechanic, and yet
he can buy and sell, mend and make, as expertly as either. In the
healing art he is wise above all others, and fancies that he possesses a
sovereign specific for every ailment which all the world beside con-
siders as incurable. He holds nautical instruments in high derision:
for the state of the moon and the weather predictions of the almanac,
the peculiar sound of the sea when it "moans," and the particular
size or shape of a "cat's paw" or "glin" in the sky, lead him to far
surer results. He will undertake nothing of consequence upon a
. * The ordinary rise and fall of the tide is twenty-two feet. The rapidity with which
it rushes by the points of land, and through the narrow straits between the islands,
creates dangerous cross-tides, eddies, and whirlpools.
t In returning from a cruise to the coast, says the author of "Eothen," "You see often
enough a fisherman's humble boat far away from all shores, with an ugly black sky
above, and an angry sea beneath; you watch the grisly old man at the helm, carrying
his craft with strange skill through the turmoil of waters, and the boy, supple-limbed,
yet weather-worn already, and with steady eyes that look through the blast, you see
him — understanding commandments from the jerk of his father's white eye-brow — r
now belaying, and now letting go — now scrunching himself down into mere ballast,
or baling out death with a pipkin. Stale enough is the sight; and yet when I see it
I always stare anew, and with a kind of Titanic exultation, because that a poor boat,
with the brain of a man and the hands of a boy on board, can match herseli so bravely
against black heaven and ocean," &c.
1200 MISCELLANEOUS.
Friday, and can prove by a hundred incidents how infallible are the
signs and omens which he believes in. He thinks to die in his bed.
True it is, that he has been overset; that his boat, loaded with fish to
the ''gunnel," has sunk under him, and that a vessel has run over him;
but he is still alive, and ''was not born to be drowned." His "fish
stories" are without end. In politics, he goes for the largest liberty.
He has never heard of easements and prescriptive rights; but he occu-
pies at will both beach and upland, without any claim to either, and
will browbeat the actual proprieter who has the temerity to remind
him of their relative positions. Against speculators he wages per-
petual war : why should he not ? since it is they who put up the price
of his favorite ''flat-hooped, fine middlings flour," and put down the
price of fish and "ile!"
And who shall do justice to his dress and to his professional gear?
The garments which cover his upper and nether man he calls his ile
sule. The queer-shaped thing worn upon his crown is a sou'-wester;
or, if the humor takes him, a north-easter. He wears neither mittens
nor gloves, but has a substitute which he has named nippers.
When he talks about brush, he means to speak of the matted and
tangled mass which grows upon his head ; or the long, red hair under
his chin, which serves the purpose of a neckcloth; or of that in front
of his ears, which renders him impervious to the dun of his merchant.
His boots are stampers. Lest he should lose the movables about his
person, he has them fastened to his pockets by lannairds. One of his
knives is a cut-throat, and another is a splitter. His apron, of leather or
canvass, is a larvel. The compartment of his boat into which he
throws his fish as he catches them, is a kid. The state of the moon
favorable for "driving herring," he calls darks. The bent-up iron
hook which he uses to carry his burning torch on the herring-ground,
is a dragon. The small net with an iron bow and wooden handle, is a
dip-net, because it is with that that he dips out of the water the fish
which his light attracts to the surface. His set-net is differently hung,
and much larger; it has leads on its lower edge to sink it with in the
water, and corks upon its upper edge, at regular intervals, to buoy it
up and preserve it nearly in a perpendicular direction, so that the her-
rings may strike it and become entangled in its meshes.
Nor ends his dialect here. Chebacco-boats and small schooners are
known to him as pinkies, pogies, and jiggers. He knows but little
about the hours of the day and night; everything with him is reckoned
by the tide. Thus, if you ask him what time he was married, he will
answer, "On the young flood last night;" and he will tell you that he
saw "a certain man this morning about "low- water slack;" or, as the
case may be, "just at half-flood," "as the tide turned," or "two hours
to low water." If he speaks of the length of line required on the dif-
ferent fishing-grounds, he will compute by "shots;" and by a shot he
means thirty fathoms. If he have fish to sell, and is questioned as to
their size, he will reply that they are ''two-quintal" fish, by which he
means that fifty will weigh one hundred and twelve pounds.
He is kind and hospitable in his way; and the visitor who is treated
to fresh smother, duff, and jo-floggers* may regard himself as a decided
favorite. He believes in witches and in dreams. The famous pirate
* Potpie of sea-birds, pudding, and pancakes — the fisherman's three P.'s
MISCELLANEOUS.
1201
Kyd buried gold and treasures in Money Cove,* Grand Menan, he is
sure; and he has dug for it many a time. His "woman" is the "best;"
the harbor he lives in is "the safest;" and his boat is "the fastest and
will carry sail the longest." When determined upon going home,
whether he is upon the land or the sea, he says, "Well, I'll up killock
and be ofl'."
The man I have described is no countryman of ours, and was to be
seen playing the soldier on the easterly side of the St. Croix during
the recent very wordy but bloodless war on the Aroostook, which was
terminated by the treaty of Washington. But some of his qualities of
character, and forms of speech, are common to most of the class to
which he belongs; and the nets, knives, and other gear, are in general
use.
Statistics of the fisheries of the Bay of Fundyfor the year 1850.
j
1
T3
1
9
i
3
+5
A
M
S
A
I*
l|
J
Places.
o
O>
1
,a
i
'a
O
|l
0
•O
VI
•O
a
so
a
6Jj
a
i
^H
s
%
o
o
.h
°3
a
Q>
•
S
a
g
g
M
i
p
i
>
p
£
a
o
8
O
H
W
s
F
>
Grand Menan and
Quin-
the islands adja-
No.
Wo.
No.
No.
tals.
Bbls.
Bbls.
Boxes.
Bbls.
Bbls.
een '
>>4
44
27
394
10, 500
250
180
35,000
6,500
£11,000
$44,000
CainiK) Hello
11
riO
?1
252
7,090
150
120
40,000
5,100
480
9,825
39,300
West i.Mfs and par-
ishes of St. George
and Penfield
27
''00
7
691
24, 550
800
450
5,000
3,500
12, 254
49, 016
62
344
55
1,337
42, 140
1,200
750
80,000
15,100
480
33,079
132,316
Statistics of the fisheries of New Brunswick — value oj produce exported.
Years.
Cod.
Salmon.
Herring.
Mackerel.
Alewives .
Oil.
Total.
Total
dollars.
1832
£28, 231
£2, 488
£1,032
£212
£290
£1,058
£33, 291
$133, 164
1S53
27, 530
723
318
91
325
2,290
31,283
125,132
1834
40, 337
2,397
489
382
1,560
51,165
204,660
* So called from the popular belief that Captain Kyd buried two hogsheads of treasure
there.
92909°— S. Doc. 870, 61-3, vol 3 37
1202
MISCELLANEOUS.
Statistics of the fisheries of New Brunswick— various produce, and quantities of each,
exported.
Years.
Quintals
of dried
cod.
Barrels of
pickled
cod.
Barrels of
pickled
herrings.
Boxes of
smoked
herrings.
Barrels of
pickled
salmon.
Kits of
pickled
salmon.
Gallons of B,^5^}^f
fish nil ' ^ ^ "*•*
"oa- alcwives.
Value.
1819
40,073
49,063
11, 436
362
1.5, r-90
1820
6,243
16,920
1821
i .V'2
45, 895
22,067
14,260
18, 165
29, 490
21, 422
4,680
16, 651
16,907
18,442
17,865
18,502
20,224
20, 441
21,786
27,543
27,434
14,950
23,594
16,832
13,567
15, 636
11,320
12,405
8,842
13,030
13,037
17, 973
18,192
""7," 385"
8,712
11,006
9,514
12,844
10,948
2,710
2,209
2.109
2, 215
1,877
25, 187
30,451
3,199
2,802
3,497
4,651
1,410
361
459
372
376
246
595
241
1,001
910
12, 508
!
13. .540
548
6, 8(il
B
2,271
5. .5SO <
i iS''3
5,580
1^24
5 040
iK25
7.030
12,080
2. 730
8.271
1827
8,204
4, 946
5,180
6(0
9,138
14. 167
10,604
3,761
5,483
5,880
11,915
14, 135
13, 439
22,325
19,534
7,209
5,389
7,308
10,058
15, 379
11,848
6,423
13, 739
504
295
489
1,776
1,199
692
652
160
88
30
1,843
930
1,400
1,804
1,825
2,879
2, 155
2,479
2, 621
1,311
2,426
2,175
2, 092
1, 725
2, 721
2, (35
2,597
2,947
2,151
1,965
5.278
4, 650
1,120
8, 261
5,600
2,276
2. (153
1,232
855
6,419
1, 2(11
1,529
170
16. 3SO
10. 020
7. 320
9,180
C-. COO
6. 695
40. 976
48.292
141.183
77, 935
210.807
233, 950
10!i. 230
162,317
119, 936
4,383
86, 623
5,989
78, 921
60, 935
3.479
4,707
8,507
IS28
9,282
12,409
3,286
22, 917
18,335
IS29 ...
$137 930
1830
1831
1N32 .
133, 160
1833
1834 .. .
1835
25, 013
17,790
1,109
3,540
6,075
1,435
1,850
1,610
1,058
1,754
5,264
3, 169
3,059
1,683
1836
1837..
9. !CS
1838
7,214
7,729
5, 7.55
7,121
9,889
12,169
16, 229
9, .5.51
200,405
1S39..
1840
1811 ..
1842
98,285
1844
1815
1846
10, 438
12. 999
9,093
10, 236
1847
1848
126, 130
1849
SALMON FISHERY OF BRITISH AMERICA.
PART III. — UNITED STATES.
PLYMOUTH COLONY.
From 1620 until the union with Massachusetts by the charter of William
and Mary, 1602.
*******
MAINE.
From 1607 to the Revolutionary Controversy.
*******
NEW HAMPSHIRE.
From 1623 to the Revolutionary Controversy.
MISCELLANEOUS. 1203
ISLES OF SHOALS.
From 16 14 to the Revolutionary Controversy.
*******
MASSACHUSETTS.
From 1614 to the Revolutionary Controversy.
*******
NEW ENGLAND.
From tlie commencement of the Revolutionary Controversy to the Declara-
tion of Independence.
*******
THE UNITED STATES,
From the Declaration of Independence to the year 1852.
*******
THE MACKEREL FISHERY.
From the settlement of New England to the year 1852.
*******
THE HERRING FISHERY.
From its commencement to the year 1852.
*******
THE HALIBUT FISHERY.
*******
PART IV. — HISTORICAL VIEW OF THE CONTROVERSY AS TO THE INTENT
AND MEANING OF THE FIRST ARTICLE OF THE CONVENTION OF
1818.
The documents submitted by the President, in answer to the reso-
lution of the Senate of July 23, 1852, embracing as they do the able
and spirited defence of our rights, by Mr. Everett, never before pub-
lished, as well as several other papers of interest, afford much valuable
information. But yet, it is apparent that our archives are singularly
deficient in documentary evidence to show both sides of the contro-
versy as it really exists. We have already seen that the loyalists, or
"tories," opposed any stipulations whatever, at the peace of 17S3, and
we are now to find that the principal cause of our difficulties since that
1204 MISCELLANEOUS.
time — whether past or present — on the question of the fisheries, is to
be traced to the same source.
At the close of the Revolution, justice and good policy both required
of our fathers a general amnesty, and the revocation of the laws of
disability and banishment; so that all adherents of the crown who de-
sired, might become American citizens. Instead of this, however, the
State legislatures, generally, continued in a course of hostile action,
and treated the conscientious and the pure, and the unprincipled and
corrupt, with the same indiscrimination as they had done during the
struggle. The tories were ruined and humble men. Most of them
would have easily fallen into respect for the new state of things, old
friendships and intimacies would have been revived, and long before
this tune all would have mingled in one mass; but in some parts of
the United States there seems to have been a determination to drive
them from the country at all hazards, as men undeserving of human
sympathy. Eventually, popular indignation diminished; the statute-
book was divested of its most objectionable enactments, and numbers
were permitted to occupy their old homes, and to recover the whole or
a part of their property; but by far the greater part of the loyalists,
who quitted the thirteen States at the commencement of or during the
war, never returned; and of the many thousands who abandoned
their native land at the peace, and while these enactments were in
force, few, comparatively, had the wish, or even the means, to revisit
the country from which they were expelled. It cannot be denied,
and we of this generation should admit, that our fathers dealt harshly
with many, and unjustly with some, of their opponents. Indeed,
whoever visits the British colonies will be convinced that persons were
doomed to misery who were as true in heart and hope as was Wash-
ington himself; that, in the divisions of families which every where
occurred, and which formed one of the most distressing circumstances
of the conflict, there were wives and daughters who, although bound
to loyalists by the holiest ties, had given their sympathies to the
whigs from the beginning, and who, in the triumph of the cause which
had had their prayers, went meekly — as woman ever meets a sorrow-
ful lot — into hopeless, interminable exile. It is to be lamented that
better counsels did not prevail. Had New York, Massachusetts, and
Virginia especially, been either merciful or just, transactions which,
in ages to come, will be very likely to put us on our defence, would not
stain our annals. The example of South Carolina should have been
followed by all. As it was, whigs whose gallantry in the field, whose
prudence in the cabinet, and whose exertions in diplomatic stations
abroad, had contributed essentially to the success of the conflict,
were regarded with enmity on account of their attempts to produce a
better state of feeling and more humane legislation.
As a matter of expediency, how unwise was it to continue to per-
petuate the opponents of the Revolution, and to keep them a distinct
class, for a time, and for harm yet unknown! How ill-judged the
measures that caused them to settle the hitherto neglected possessions
of the British crown! Nova Scotia had been won and lost, and lost
and won, in the wars between France and England, and the blood of
New England had been poured upon its soil like water; but when we
drove thousands and tens of thousands of our countrymen to seek a
refuge there, what was it ? Before the war, the fisheries of its coast —
for the prosecution of which Halifax itself was founded — comprised, in
MISCELLANEOUS. 1205
public estimation, its chief value; and though Great Britain had quietly
possessed it for about seventy years, the emigration to it of loyalists
from the United States, in a single year, more than doubled its popula-
tion. By causing the expatriation, then, of the adherents of the Brit-
ish crown, among whom were the well-educated, the ambitious, and
the well- versed in politics, we became the founders of two British colo-
nies, for it is to be remembered that New Brunswick formed a part of
Nova Scotia until 1784, and that the necessity of the division then
made was of our own creation. In like manner, we became the found-
ers of Upper Canada. The loyalists of our Revolution were the first
settlers of the territory thus denominated by the act of 1791 ;* and the
principal object of the line of division of Canada, as established by Mr.
JPitt's act, was to place them, as a body, by themselves, and to allow
them to be governed by laws more congenial than those which were
deemed requisite for the subordination of the French on the St. Law-
rence. The government for which they had become exiles was liberal
to them; it gave them lands, tools, materials for buildings, and means
of subsistence for two years, and to each of their children (at the age of
twenty-one) two hundred acres of land. And besides this, of the
offices created by the organization of a new colonial government, they
wrere the chief recipients.
Should it be replied that Nova Scotia, New Brunswick, and Canada
West, without accessions from the United States, would have risen to
importance ere this, I answer, that there is good reason to doubt it;
because, in the first place, of the many thousands who annually come
from Europe to America, but a small proportion land on the shores of
these colonies, and because the most of those who do, soon leave for
"the States," notwithstanding the inducements held out to emigrants
by the colonial and home governments to settle on the territories of the
crown. But were it otherwise, the force of the remark is in no degree
diminished, for the obvious reason, that, had we pursued a wise course
at the peace of '83, people of American origin would not have become
our rivals in ship-building, in the carriage of our great staples to Eu-
rope, in the prosecution of the fisheries, and in the production of wheat
and other breadstuffs. Nor is this all. We should not have had the
hatred, the influence, and the talents of persons of loyalist descent, to
contend against, in the long and vexed controversy relative to our
northeastern boundary, nor continual difficulty about, and upon, the
fishing gounds. It is to be observed, moreover, that the operation
of these causes has been, and will continue to be, no slight obstacle in
the way of adjusting such questions, since the children and kinsmen
of the loyalists have no inconsiderable share in determining colonial
councils, and in the shaping of remonstrances and representations to
the British ministry. And whoever takes into view the fact that the
sufferings and sacrifices of the fathers are well remembered by the
descendants, and that, under the monarchial form, hereditary descent
of official station is very common, will agree with me in the belief,
that evils from this source are far from being at an end. There are
still those in the colonies, who, remembering only that they are de-
*It was in a debate on this bill, that Fox and Burke severed the ties of friendship
which had existed between them for a long period. The scene was one of the most
interesting that had ever occurred in the House of Commons. Fox, overcome by his
emotions, wept aloud. Burke's previous course with regard to the French revolution
had rendered a rupture at some time probable, perhaps certain.
1206 MISCELLANEOUS.
amended from the exiled losers in the revolutionary strife, would keep
alive, and perpetuate for generations to come, the dissensions of the
past ; but their number, we may hope, is rapidly diminishing. To ex-
tend and strengthen the sympathies of human brotherhood is a
Christian duty; and to unite kinsmen, who were severed by events
which dismembered an empire, is a work in which all may now en-
gage, without incurring the reproach of disloyalty on the one hand, or
of the want of patriotism on the other.
These remarks explain, and account for, the pertinacity of the colo-
nists, and serve to indicate that they, and not the British government,
are the real party opposed to us in this controversy. As we progress
in our inquiries, we shall find abundant evidence to show, that England
has moved with great, with avowed reluctance, against us ; and that
while the colonies of Canada, Prince Edward Island, and New Bruns-
wick, have remained almost indifferent, down to a very recent day,
Nova Scotia, on the contrary, has pressed the subject of "American
aggressions" upon the attention of the ministry, with hardly an inter-
mission, for a term of years. The last named colony, it may be per-
tinent to observe, maintains extreme opinions upon all political
questions, demanding concessions and privileges entirely inconsistent
with colonial dependence, and asserting and insisting on doctrines
which no whig or our Revolution, in his loftiest mood, even so much
as wrote or spoke to his most cherished friend; as the letters of the
Hon. Joseph Howe to Lord John Russell, in 1846, and the course of
the "Liberals," generally, prove beyond dispute.
Some well-informed persons have expressed the opinion, that, until
within a few years, our fishermen have had no cause to complain of
their colonial competitors. It is not so. Those who consult our state
papers will find, that, as early as 1806, the inhabitants of the counties
of Barnstable and Plymouth, Massachusetts, who stated that they pro-
cured their livelihood by fishing, memorialised Congress on the subject
of existing grievances, and desired redress. They represented that
they were much injured in the sale of their fish in consequence of the
American market being glutted with English fish; that they were
fired upon and brought to by English cruisers when falling in with
them in going to, and coming from, the fishing grounds; that they
were imposed upon; that they were compelled to pay light-money
if they passed through the Strait of Canso; that their men were
imprisoned; and that if they anchored in the colonial harbors, they
were compelled to pay anchorage money. Thus the complaints in
1806 were nearly identical with those in 1852.
In the year 1807 the colonists appealed to the British government
on the subject of the fisheries within colonial jurisdiction, and the
" aggressions " of their republican neighbors. Looking with jealous
eyes upon the extent of our adventures to their waters, they employed
a watchman to count the number of American vessels which passed
through the Strait of Canso in a season. This watchman reported
that he saw nine hundred and thirty-eight. As many passed in fogs,
and in the night-time, and were unseen by him, the whole number
was not less, probably, than thirteen hundred. Without enumerating
other acts of the colonists which show their hostile feelings towards us,
I will barely add that many of them preferred that the difficulties then
pending between England and the United States should terminate in a
war; for, as was believed and said, a war would put an end to our
MISCELLANEOUS. 1207
rights of fishing in British America, inasmuch as it would annul the
stipulations of the treaty of 1783.*
The event which so many of our banished countrymen anticipated
with complacency, occurred in 1812. In the year following, a deter-
mination was manifested to exclude us from the colonial fishing-
grounds on the return of peace. It was represented in memorials,
that the American fishermen abused their privileges to the injury of
his Majesty's subjects; that the existence of Great Britain as a power
of the first rank, depended mainly upon her sovereignty of the seas;
and that sound policy required the exclusion of both France and the
United States from any participation in the fisheries. * It was, further-
more, insisted that fifteen hundred American vessels had been engaged
in the Labrador fishery alone, in a single season; that these vessels
carried and dealt out teas, coffee, spirits, and other articles, on which
no duty was paid; that these smugglers and interlopers exercised a
ruinous influence upon the British fishery and the morals of British
fishermen; that men, provisions, and outfits were cheaper in the
United States than elsewhere, and that of consequence British fisher-
men on the coast could buy what they needed on better terms of the
American vessels than of the colonial merchants; and hence the
memorialists expressed the hope that foreigners would no longer be
permitted to visit the colonial waters for the purpose of fishing.
These representations created a sensation in Massachusetts, and were
the topic of comment there and in other parts of the country. The
Boston Centinel pithily said, that they were "alarmingly interesting;"
and as far south as Baltimore the New England sentiment of "no
peace without the fisheries," was echoed and approved.
In 1814, Mr. Canning, in the British Parliament, urged upon the
government the necessity of giving due consideration to the question
of the fisheries, in the adjustment of terms of peace. In our treaty
of 1783, said he, "we gave away more than we ought; and we never
now hear of that treaty but as a trophy of victory on the one hand,
or the monument of degradation and shame on the other. We ought
to refer, in questions with America, to the state in which we now
stand, rather than that in which we once stood."
The principle asserted by the American commissioners at Ghent, Mr.
Russell alone accepted, has been stated and need not be repeated here.
It was assumed in England, and in the colonies, that that principle was
in contravention of public law, and British statesmen and British
colonists claimed to exclude our vessels from the fishing-grounds, and
*A highly respectable gentleman, of loyalist descent, related to me the following
incident, which will serve to illustrate the temper of the time:^"! went," said he,
"to see my uncle, who, as I entered the house, accosted me thus, in great glee: ^Vell,
Willie, there'll be war, and I shall die on the old farm after all.' 'How so?' rejoined
my informant. 'How does it follow that, if a war really occurs, you will die on the
old farm?' 'How!' petulantly replied the uncle; "why, won't England whip the blasted
rebels, and shan't we all get our lands back again?'" This loyal old gentleman is now
dead. He was a native of New York, and lost his property — the "old farm" — under
the Confiscation act of that State. At the close of the Revolution he settled on the
British side of the St. Croix, where many persons of his lineage etill live. This is by
no means a solitary instance of the hopes entertained as to the result of a conflict
between the two nations. In 1807 many of our banished countrymen were not only
alive, but in full vigor; and the expectation was common among them that, in the
event of hostilities, their interest would be promoted, either by stipulations in their
favor in the treaty of peace, or by the abrogation of our fishing rights, as stated in
the text.
1208 MISCELLANEOUS.
even to seize them when found there. The government of Nova
Scotia was especially zealous and prompt in protecting her supposed
interests, and in proclaiming the penalty of confiscation to American
intruders upon her coasts. In 1815 the commander of his Majesty's
ship-of-war the Jasseur, heeding the clamors of the colonists more
than the qualified instructions of the admiralty, commenced the seiz-
ure of our fishing vessels; and in one day in June of that year, sent
no less than eight into the port of Halifax as lawful prizes. This out-
rage, and the right assumed by the commander of this ship to warn
our fishermen not to come within sixty miles of the coast, (as else-
where remarked,) led to negotiations and to the convention of 1818.
Mr. Baker, the British charge d'affaires, in reply to Mr. Monroe's note
of July 18, 1815, declared that the commander of the Jasseur had
transcended his authority, and gave the assurance that orders had been
transmitted to the naval officers on the Halifax and Newfoundland
stations,which would "prevent the recurrence of any similar interrup-
tion;" but the schooner Nabby was seized by his Majesty's ship Sara-
cen, Captain Gore, and proceedings in the admiralty court of Nova
Scotia were instituted against her in August, 1818, only two months
before the convention was concluded. Eleven other American vessels
were seized by Captain Chambers, under orders from Admiral Milne,
for alleged violations of British maritime jurisdiction. That some of
these vessels were captured for good cause, is quite probable; but yet,
the comity between nations, aside from the assurance of the British
charg6 d'affaires, required that while negotiations were pending, the
officers of the British navy on the American station should have been
instructed to suspend captures, and to have merely warned off such
vessels as were found infringing upon what were held to be British
rights; for it is to be recollected that, claiming, as we did, to fish under
the treaty of 1783, we were entitled essentially to exercise all the
privileges of catching enjoyed by British subjects, until the differences
between the two cabinets were adjusted.
On the 14th of June, 1819, Parliament passed "An act to enable his
Majesty to make regulations with respect to the taking and curing fish
on certain parts of the coasts of Newfoundland, Labrador, and his
Majesty's other possessions in North America, according to a conven-
tion made between his Majesty and the United States of America."
It is now pretended that this law asserts the recent construction of
the convention, as relates to our exclusion from the great "bays."
That pretension will be examined in due time. The act, after reciting
the first article of the convention, provides, first, that "it shall and
may be lawful for his Majesty, by and with the advice of his Majesty's
privy council, by any order, or order in council, to be from time to
time made for that purpose, to make such regulations, and to give
such directions, orders, and instructions to the governor of Newfound-
land, or to any officer or officers on that station, or to any other per-
son or persons, whomsoever, as shall or may be from time to time
deemed proper and necessary for the carrying into effect the purposes
of the said convention, with relation to the taking, drying, and curing
of fish by inhabitants of the United States of America, in common
with British subjects, within the limits set forth in the said article of
the said convention, and hereinbefore recited; any act or acts of Par-
liament, or any law, custom, or usage, to the contrary in any wise
notwithstanding."
MISCELLANEOUS. 1209
Second, that "it shall not be lawful for any person or persons, not
being a natural-born subject of his Majesty, in any foreign ship, ves-
sel, or boat, nor for any person in any ship, vessel, or boat, other than
such as shall be navigated according to the laws of the United King-
dom of Great Britain and Ireland, to fish for or take, dry, or cure, any
fish of any kind whatever, within three marine miles of any coasts,
bays, creeks, or harbors whatever, in any port of his Majesty's domin-
ions in America, not included within the limits specified and described
in the first article of the said convention, and hereinbefore recited;
and that if any such foreign ship, vessel, or boat, or any persons on
board thereof, shall be found fishing, or to have been fishing, or pre-
paring to fish within such distance of such coasts, bays, creeks, or
harbors, within such parts of his Majesty's dominions in America, out
of the said limits as aforesaid, all such ships, vessels, and boats,
together with their cargoes, and all guns, ammunition, tackle, apparel,
furniture, and stores, shall be forfeited."
Third, that "it shall and may be lawful for any fisherman of the said
United States to enter into any such bays or harbors of his Britannic
Majesty's dominions in America as are last mentioned, for the purpose
of shelter and repairing damages therein, and of purchasing wood and
of obtaining water, and for no other purpose whatever — subject,
nevertheless, to such restrictions as may be necessary to prevent such
fishermen of the said United States from taking, drying or curing fish
in the said bays or harbors, or in any other manner whatever abusing
the said privileges by the said treaty and by this act reserved to them,
and as shall for that purpose be imposed by any order or orders to be
from time to time made by his Majesty in council, under the authority
of this act, and by any regulations which shall be issued by the gov-
ernor, or person exercising the office of governor, in any such parts of
his Majesty's dominions in America, under or in pursuance of any such
order in council, as aforesaid."
Fourth, that "if any person or persons, upon requisition made by
the governor of Newfoundland, or the person exercising the office of
governor, or by any governor, or person exercising the office of gov-
ernor, in any other parts of his Majesty's dominions in America as
aforesaid, or by any officer or officers acting under such governor, or
person exercising the office of governor, in the execution of any orders
and instructions from his Majesty in council, shall refruse to depart
from such bays or harbors; or if any person or persons shall refuse or
neglect to conform to any regulations or directions which shall be
made or given for the execution of any of the purposes of this act;
every such person so refusing or otherwise ofi'ending against this act
shall forfeit the sum of two hundred pounds."
Reserving comments upon this statute for another place, we pro-
ceed with our narrative. The four years succeeding the ratification
of the convention, were years of comparative quiet and security. But
in 1823, the ships-of-war Argus* and Sparrow-hawk spread alarm
among our fishermen who were employed in the Bay of Fundy, and
elsewhere in the waters of Nova Scotia and New Brunswick. They
molested some, and ruined the voyages of others; but the Charles of
York, Maine — a prize to the Argus — is believed to be the only vessel
captured and sent into port for trial.
* Formerly of the United States navy, and captured in the war of 1812.
1210 MISCELLANEOUS.
In 1824, Captain Hoare, of his Majesty's brig Dotterel, seized nine
vessels.* The conduct of this gentleman caused much excitement and
indignation. I personally witnessed many of his proceedings. How-
ever censurable his general course, it is not remembered that he dis-
turbed the humble men who fish in small open boats in the Bay of
Passamaquoddy, and in waters always considered free and common
to the people of the two flags. Of the vessels which he captured, one
was retaken by her crew, assisted by one of his own men; and two
others were rescued by their crews, aided by an armed party from
Eastport.
In September, three memorials, signed by citizens of Maine who
were aggrieved by the acts of Captain Hoare, were transmitted to the
President. These papers, with the accompanying protests and depo-
sitions as to the wrongs complained of, formed the subject of a corre-
spondence between the Acting Secretary of State and the British
charge d'affaires. No results followed. Our countrymen demanded
indemnity and reparation . The British functionary required, on the
other hand, "the punishment of the transgressors for the act of vio-
lence perpetrated on persons bearing his Majesty's commission while
engaged in the discharge of their public duties." Meantime, the
President directed Ether Shepley, the attorney of the United States
for Maine, to proceed to the frontier and mate inquiry into the cir-
cumstances of the matters in dispute, and especially those attending
the recapture of the three vessels just referred to. That Captain
Hoare was sometimes unjustly reproached by our fishermen, was ad-
mitted by the calm and considerate in 1824; and this fact, in common
fairness, ought to be stated in this brief record of the troubles which
are connected with Ins command of the Dotterel, and which will not
soon be forgotten by those who live on the eastern border of Maine.
The charge preferred against him that he converted the vessels which
he seized into tenders for assisting him in his operations "prior to
their adjudication in the courts," he denied in the most explicit
terms. It was never proved to be true. It may be said, also, that the
capture of seven of his prizes was held to be justifiable by the British
charge d'affaires in his correspondence with Mr. Adams. The accu-
racy of this opinion, however, we shall have occasion to dispute.
The excitement occasioned by the zeal with which Captain Hoare
"guarded the coasts from the intrusion of foreign fishermen and
smugglers," did not suddenly cease. In 1825, his conduct, on motion
of the Hon. Jeremiah O'Brien, who represented the frontier district
of Maine, became a subject of inquiry in Congress; and the United
States schooner Porpoise, under the command of Lieutenant Parker,
was despatched to the Bay of Fundy for the protection of our flag.
Early in 1826, the Dotterel was again the terror of our fishermen.
The presence of the United States sloop-of-war Lexington, Captain
Shubrick, under orders to cruise upon the fishing grounds, relieved
their fears; and the season passed away without any serious disturb-
ance. But there had been no adjustment of the difficulties which
occurred in 1824. The note of the British charge d'affaires to our
fovernment, relative to the recapture of two of the Dotterel's prizes,
ad not, in fact, been answered. Meantime, Mr. Adams had passed
* The documents submitted to the Senate by the President, August, 1852, contain
several papers connected with matters in the Bay of Fundy at this period.
MISCELLANEOUS. 1211
from the Department of State to the Executive Mansion. Mr. Clay
had succeeded him; and a new British minister had arrived in the
United States to treat with the new administration. To have delayed
a reply to that note for a year and a half, was eq uivalent to a refusal ;
and it could hardly be hoped by Mr. Vaughan, that Mr. Adams would
permit, as President, what he had declined as Secretary of State.
Yet, on the 29th of April, that functionary called the attention of
Mr. Clay to the fact that his predecessor, on the fifth of October, 1824,
had informed our government "that an outrage had been committed
by some armed citizens of the State of Maine, in forcibly rescuing, off
Eastport, two American vessels, the Reindeer and Ruby, which had
been captured by his Majesty's cruisers while fishing in the Bay of
Fundy in places where the United States had by treaty renounced
the right so to do;" and in renewing the request "for an acknowledg-
ment of the improper conduct of the persons engaged in" the enter-
prise, he remarked that "the British government was disposed to
waive all demand for the punishment of the offenders, as the act
resulted apparently from unpremeditated violence."
It does not appear that Mr. Clay ever replied to this letter, or that
the required " acloiowledgment " was ever made in any form.
The naval and diplomatic officers of his Majesty attached far more
importance to this affair than it deserved. Admiral Lake stated, and
the British charge d'affaires repeated to Mr. Adams, that the Reindeer
and Ruby were rescued "by two schooners and an open boat, under
American colors, full of armed men, with muskets and fixed bayonets,
amounting to about one hundred, headed by a Mr. Howard,* of East-
port, who is said to be a captain in the United States militia." But
the truth is, that "Mr. Howard" was a mere stripling, and a mer-
chant's apprentice. I was a witness to the whole affray. The two
vessels in question were partly owned by young Howard's employers.
As they hove in sight under charge of Captain Hoare's prize-masters,
a party of some thirty persons, many of whom were boys, and without
"muskets" or weapons of any sort, were hastily collected and em-
barked. The deed was bravely done, and at the moment won tKe
plaudits of grave men. Persons of mature years who deliberately
arm themselves to expound treaty stipulations, are not to be justified ;
but the acts of generous, impulsive youth, admit of apology and ex-
tenuation.
The period of quiet which followed the transactions last noticed
indicates that Captain Hoare was too zealous, or that his successors
were remiss in the performance of their duty, or that the masters of
our fishing vessels suddenly reformed their practices, and conformed
to the provisions of the convention. In January, 1836, Mr. Bank-
head, the British charge d'affaires, at the instance of the colonial
authorities, called the attention of Mr. Forsyth, Secretary of State,
to "repeated acts of irregularity committed by fishermen of the United
States;" but the papers which accompanied his note specify the
encroachments of a single vessel only — namely, the schooner Bethel, of
Provincetown, Massachusetts. Still, the President, "without wait-
ing for an examination of the general complaint," or that of the soli-
tary instance cited, " directed the Secretary of the Treasury to instruct
* William A. Howard, subsequently a midshipman in the United States navy, and
a captain in the revenue service. He was in command of the steam cutter McLane
at the attack on Vera Cruz, during the late war with Mexico.
1212 MISCELLANEOUS.
the collectors to inform the masters, owners, and others engaged in
the fisheries, that complaints have been made, and to enjoin upon those
persons a strict observance of the limits assigned for taking, drying,
and curing fish by the American fishermen, under the convention of
1818."
In March, of the same year, an act was passed by Nova Scotia of
extreme, and, in some of its provisions, of inexcusable severity. It
provides (among other things not material to our present purpose)—
That "officers of the colonial revenue, sheriffs, magistrates, and any
other person duly commissioned for that purpose, may go on board
any vessel or boat within any harbor in the province, or hovering
within three miles of any of the coasts or harbors thereof, and stay
on board so long as she may remain within such place or distance."
That "if such vessel or boat be bound elsewhere, and shall continue
within such harbor or so hovering for twenty-four hours after the
master shall have been required to depart, any one of the officers above
mentioned may bring such vessel or boat into port and search her
cargo, and also examine the master upon oath, and if the master or
person hi command shall not truly answer the questions demanded of
him in such examination, he shall forfeit one hundred pounds; and if
there be any prohibited goods on board, then such vessel or boat, and
the cargo thereof, shall be forfeited."
That "if the vessel or boat shall be foreign, and not navigated
according to the laws of Great Britain and Ireland, and shall have
been found fishing, or preparing to fish, or to have been fishing,
within three marine miles of such coasts or harbors, such vessel or
boat and the cargo shall be forfeited."
That "if any seizure take place and a dispute arise, the proof touch-
ing the illegality thereof shall be upon the owner or claimant."
That "no person shall enter a claim to anything seized until security
shall have been given, in a penalty not exceeding sixty pounds, to
answer and pay costs occasioned by such claim; and in default of
such security, the things seized shall be adjudged forfeited and shall
be condemned."
That "no writ shall be sued out against any officer or other person
authorized to seize for anything done until one month after notice in
writing, delivered to him or left at his usual place of abode by the per-
son intending to sue out such writ, his attorney or agent, in which
notice shall be contained the cause of action, the name and place of
abode of the person who is to bring the. action, and of his attorney or
agent; and no evidence of .any cause of action shall be produced, ex-
cept such as shall be contained in such notice."
That "every such action shall be brought within three months after
the cause thereof has arisen."
That "if on any information or suit brought to trial on account of
any seizure, judgment shall be given for the claimant, and the judge
or court shall certify on the record that there was probable cause of
seizure, the claimant shall not recover costs, nor shall the person who
made the seizure be liable to any indictment or suit on account thereof.
And if any suit or prosecution be brought against any person on ac-
count of such seizure, and judgment shall be given against him, and
the judge or court shall certify that there was probable cause for the
seizure, then the plaintiff, besides the thing seized or its value, shall
MISCELLANEOUS. 1213
not recover more than twopence damages, nor any costs of suit, nor
shall the defendant be fined more than one shilling."
That "the seizing officer may, within one month after notice of ac-
tion received, tender amends to the party complaining, or his attorney
or agent, and plead such tender."
That "all actions for the recovery of penalties or forfeitures imposed
must be commenced within three years after the offence committed."
And that "no appeal shall be prosecuted from any decree or sen-
tence of any court in this province touching any penalty or forfeiture,
unless the inhibition be applied for and decreed within twelve months
from the decree or sentence being pronounced."
lhe next measure of Nova Scotia was in 1837, when an elaborate
report on the subject of the fisheries was submitted to the House of
Assembly, which embraced a plan of protection by the employment
of steamers on the part of the nome government, and of a preventive
force on the part of the government of the colony. The latter recom-
mendation was adopted.
But the design of committing the ministry to the plans of political
leaders in this loyal possession of the British crown was not aban-
doned. Early in 1838 a joint address of the Legislative Council and
House of Assembly was transmitted to the Queen, complaining of the
habitual violation of the convention of 1818 by American citizens, and
Eraying for an additional naval force to put an end to these aggressions.
Q November, of that year, Lord Glenelg, the colonial secretary, in a
despatch to Lieutenant General Sir Colin Campbell, lieutenant gov-
ernor of Nova Scotia, remarked, in reply to this address, that —
"In obedience to her Majesty's commands, this subject has engaged
the serious attention of her Majesty's government, and it has been de-
termined for the future to station, during the fishing season, an armed
force on the coast of Nova Scotia to enforce a more strict observance
of the provisions of the treaty by American citizens, and her Majesty's
minister at Washington has been instructed to invite the friendly co-
operation of the American government for that purpose.
"The necessary directions having been conveyed to the lords com-
missioners of the admiralty, their lordships have issued orders to the
naval commander-in-chief on the West Indian and North American
station to detach, as soon as the fishing season shall commence, a small
vessel to the coast of Nova Scotia, and another to Prince Edward
Island, to protect the fisheries. The commanders of these vessels will
be cautioned to take care that, while supporting the rights of British
subjects, they do not themselves overstep the bounds of the treaty.
You will of course afford them every information antl assistance which
they may require for the correct execution of this duty. I trust that
measures will prove satisfactory to the legislature of Nova Scotia."
In March, 1839, the consul or the United States at Pictou addressed
a letter to Mr. Forsyth, Secretary of State, in which, after referring to
the seizure of several of our fishing vessels during the previous year,
he said that—
"The British government has decided to send out two armed ves-
sels, to be stationed during the fishing season on these coasts, for the
purpose of preventing any infringements of the treaty; and although
I am well aware that much of the outcry which has been made on this
subject has had its origin in the disappointed feelings of Nova Scotia
fishermen, on seeing themselves so far outstripped in the successful
1214 MISCELLANEOUS.
pursuits of so valuable a branch of commerce by superior perseverance
and skill of their enterprising neighbors, yet I know that, within my
consular district, a tempting shoal of fish is sometimes, either from
ignorance or the excitement of the moment, followed across the pre-
scribed limits; and I suppose that during the ensuing season the
greatest vigilance will be displayed in looking after offenders."
The seizures in the course of the year were numerous. The Java,
Battelle, Mayflower, Charles, Eliza, Shetland, Hyder Ally, Independ-
ence, Hart, Ocean, Director, Atlas, Magnolia, Amazon, and Three
Brothers, were among the number; whether for justifiable cause, will
form the subject of inquiry in another place. Her Majesty's cruisers
spread consternation on the fishing-grounds throughout the season.
The Hon. Keith Stewart, in command of the Ringdove, was as much
dreaded by our fishermen in the Bay of Fundy as Captain Hoare had
been, in the Dotterel, in the year 1824. In July, a gentleman of one of
the frontier ports of Maine informed an official personage at Washing-
ton that four or five hundred American fishing vessels were then in
that bay; that the complaints of the colonists of the island of Grand
Menan had caused the commanders of the British cruisers to refuse
shelter to our flag even in stormy weather; that nearly one hundred of
our vessels, which had been driven from positions secured to them by
the treaty, had fled for refuge to a single harbor on the American side
of the line; and that our fishermen were generally armed, and would
not bear the indignities to which they were exposed. He added that
"they can furnish some thousands of as fearless men as can be found
anywhere, at short notice; and, unless our government send an armed
vessel without delay, you will shortly hear of bloodshed." Such was
the condition of things, now well remembered, at and near the border.
Elsewhere there was so much difficulty and excitement that the mas-
ters of our vessels, whether at sea or at anchor, felt themselves unsafe;
and, molested along the entire coast of Nova Scotia, many of them ad-
justed their affairs at the close of the season without reward for their
toil and exposure, and in sadness of spirit as to the future. In a word,
there seemed to persons of calm judgment a determination on the part
of colonial politicians to drive our countrymen to extremities. To ex-
clude us from the Bays of Fundy and Chaleurs, and other large bays,
by lines drawn from headland to headland ; to deny to us resort to the
colonial ports and harbors for shelter and to procure wood and water,
except in cases of actual distress; to dispute our right to fish on the
shores of the Magdalene islands, and thus to render the treaty stipu-
lation valueless ; and to close against us the Strait of Canso, and of con-
sequence to compel us to make the dangerous voyage round the island
of Cape Breton, when bound to or from the Gulf of St. Lawrence,
are among the pretensions of Nova Scotia seriously asserted in the
memorable year 1839. The seizures of our vessels, and the other pro-
ceedings which we have briefly noticed, attracted the attention of our
government, and the United States schooner Grampus, under the com-
mand of Lieutenant John S. Paine, was despatched to the scene of
alarm and commotion. Lieutenant Paine informed himself of the mat-
ters in dispute, and performed his duty with zeal and efficiency. In
his official report to Mr. Forsyth, Secretary of State, he observes that
" the injustice and annoj^ance suffered by our fishermen had so irritated
them, that there was ground to believe that violence would be resorted
to, unless some understanding should be had before another season."
MISCELLANEOUS. 1215
In March, 1840, the Assembly of Nova Scotia passed another
address to the Queen, in which her Majesty was again reminded of the
grievances of her subjects of that colony. Our government in the
following month, and, as now appears, for the first time, communi-
cated with our minister at the Court of St. James on the subject of the
fisheries, but yet without instructions to make a statement of our
wrongs to the government to which he was accredited.
The early part of the year 1841 is fruitful of events which show the
progress of the controversy, and the development of colonial plans and
Eretensions. On the 20th of February, Mr. Forsyth, Secretary of
tate, addressed Mr. Stevenson, at London, a letter of definitive in-
structions, in which he reviewed the points in dispute, and stated that
he was directed by the President to convey his desire that a represent-
ation should be made to her Majesty's government, immediately on
receipt of the despatch, earnestly remonstrating "against the illegal
and vexatious proceedings of the authorities of Nova Scotia towards
our fishermen," and requesting of the ministry "that measures be
forthwith adopted " to remedy "the evils arising out of this misconcep-
tion on the part of the provincial" government, "and to prevent the
possibility of the recurrence of similar acts." Mr. Stevenson's atten-
tion to the representations of Mr. Forsyth was prompt. On the 27th
of March he wrote to Lord Palmerston as follows:
"The undersigned, Envoy Extraordinary and Minister Plenipoten-
tiary from the United States, has the honor to acquaint Lord Viscount
Palmerston, her Majesty's Principal Secretary of State for Foreign
Affairs, that he has been instructed to bring to the notice of her
Majesty's government, without delay, certain proceedings of the
colonial authorities of Nova Scotia, in relation to the seizure and
interruption of the vessels and citizens of the United States engaged
in intercourse with the ports of Nova Scotia and the prosecution of
the fisheries on its neighboring coasts, and which, in the opinion of
the American government, demand the prompt interposition of her
Majesty's government. For this purpose tne undersigned takes
leave to submit to Lord Palmerston the following representation:
"By the first article of the convention between Great Britain and
the United States, signed at London on the 20th October, 1818, it
is provided:
"1st. That the inhabitants of the United States shall have forever,
in common with the subjects of Great Britain, the libertv to take
fish of every kind on that part of the southern coast of Newfoundland
which extends from Cape Ray to the Rameau islands, on the western
and northern coast of Newfoundland, from the said Cape Kay to the
Quirpon islands, on the shores of the Magdalene islands; and also on
the coasts, bays, harbors, and creeks, from Mount Joly, on the southern
coast of Labrador, to and through the Straits of Bellisle, and thence
northwardly indefinitely along the coast, without prejudice, however,
to the exclusive rights of the Hudson Bay Company.
" 2d. That the Americans shall also have liberty, forever, to dry and
cure fish in any part of the unsettled bays, harbors, and creeks, of the
southern portion of the coast of Newfoundland before described, and
of the coast of Labrador, the United States renouncing any liberty
before enjoyed by their citizens to take the fish within three miles
of any coasts, bays, creeks, or harbors of the British dominions in
1216 MISCELLANEOUS.
America, not included within the above limits, i. e., Newfoundland
and Labrador.
"3d. That American fishermen shall also be admitted to enter such
bays or harbors for the purpose of shelter, and of repairing damages
therein, and also of purchasing wood and obtaining water, under such
restrictions only as might be necessary^ to prevent their taking, drying or
curing fish therein, or abusing the privileges reserved to them. Such are
the stipulations of the treaty, and they are believed to be too plain and
explicit to leave room for doubt or misapprehension, or render the dis-
cussion of the respective rights of the two countries at this time neces-
sary. Indeed, it does not appear that any conflicting question of right
between them has as yet arisen out of the differences of opinion re-
garding the true intent and meaning of the treaty. It appears, how-
ever, that in the actual application of the provisions of the convention,
(committed on the part of Great Britain to the hands of subordinate
agents, subject to and controlled by local legislation,) difficulties, grow-
ing out of individual acts, have unfortunately sprung up, among the
most important of which have been recent seizures of American ves-
sels for supposed violations of the treaty. These have been made, it
is believed, under color of a provincial law, (6th Wm. 4, chap. 8, 1836,)
passed, doubtless, with a view to restrict vigorously, if not intended to
aim a fatal blow at the fisheries of the United States on the coast of
Newfoundland.
"It also appears, from information recently received by the govern-
ment of the United States, that the provincial authorities assume a
right to exclude the vessels of the United States from all their bays,
(even including those of Fundy and Chaleur,) and likewise to prohibit
their approach within three miles of a line drawn from headland to head-
land, instead of from the indents of the shores of the provinces ! They
also assert the right of excluding them from British ports, unless in ac-
tual distress, warning them to depart or get under weigh and leave har-
bor whenever the provincial custom-house or British naval officer shall
suppose that they have remained there a reasonable time, and this
without a full examination of the circumstances under which they may
have entered the port. Now, the fishermen of the United States Relieve
(if uniform practice is any evidence of correct construction) that they
can, with propriety, take fish anywhere on the coasts of the British
provinces, if not nearer than three marine miles to land, and have the
right to then* ports for shelter, wood and water; nor has this claim, it is
believed, ever been seriously disputed, based, as it is, on the plain and
obvious terms of the convention. Indeed, the main object of the
treaty was not only to secure to American fishermen, in the pursuit of
their employment, the right of fishing, but likewise to insure him as
large a proportion of the conveniences afforded by the neighboring
coasts of British settlements as might be reconcilable with just rights
and interests of British subjects, and the due administration of her
Majesty's dominions. The construction, therefore, which has been at-
tempted to be put upon the stipulations of the treaty by the authori-
ties of Nova Scotia, is directly in conflict with their object, and entirely
subversive of the rights and interests of the citizens of the United
States. It is one, moreover, which would lead to the abandonment, to
a great extent, of a highly important branch of American industry,
which could not for a moment be admitted b}r the government of the
United States. The undersigned has also been instructed to acquaint
MISCELLANEOUS. 1217
Lord Palmerston that the American government has received informa-
tion, that in the House of Assembly in Nova Scotia, during the session
of 1839-'40, an address to her Majesty was voted, suggesting the ex-
tension to adjoining British colonies of rules and regulations relating to
the fisheries, similar to those in actual operation in that province, and
which have proved so onerous to the fishermen of the United States;
and that efforts, it is understood, are still making to induce the other
colonies to unite with Nova Scotia in this restrictive system. Some of
the provisions of her code are of the most extraordinary character.
Among these is one which declares that any foreign vessel preparing
to fish within three miles of the coast of any of her Majesty's dominions
in America, shall, together with the cargo, be forfeited; that in all
cases of seizure, the owner or claimant of the vessel, £c., shall be held
to prove his innocence or pay treble costs; that he shall be forced to
try his action within three months, and give one month's notice, at
least to the seizing officer, containing everything to be proved against
him, before any suit can be instituted; and also prove that the notice
has been given. The seizing officer, moreover, is almost wholly irre-
sponsible, inasmuch as he is liable to no prosecution, if the judge certi-
fies that there is probable cause; and the plaintiff, if successful in his
suit, is only to be entitled to twopence damages, without costs, and the
defendant fined not more than one shilling. In short, some of these
rules and regulations are violations of well established principles of the
common law of England, and of the principles of the just laws of all
civilized nations, and would seem to have been designed to enable her
Majesty's authorities to seize and confiscate with impunity American
vessels, and embezzle, indiscriminately, the property of American citi-
zens employed in the fisheries on the coasts of the British provinces.
It may be proper, also, on this occasion, to bring to the notice of her
Majesty's government the assertion of the provincial legislature, 'that
the Gut or Strait of Canso is a narrow strip of water completely within
and dividing several counties of the province,' and that the use of it
by the vessels and citizens of the United States is in violation of the
treaty of 1818. This strait separates Nova Scotia from the island of
Cape Breton, which was not annexed to the province until the year
1820. Prior to that, in 1818, Cape Breton was enjoying a government
of its own entirely distinct from Nova Scotia, the strait forming the
line of demarcation between them, and being then, as now, a thorough-
fare for vessels passing into and out of the Gulf of St. Lawrence. The
union of the two colonies cannot, therefore, be admitted as vesting in
the province the right to close a passage which has been freely and in-
disputably used by the citizens of the United States since the year
1783. It is impossible, moreover, to conceive how the use on the
part of the United States, common, it is believed, to all other nations,
can in any manner conflict with the letter or spirit of the existing
treaty stipulations. The undersigned would, therefore, fain hope that
her Majesty's government would be disposed to meet, as far as prac-
ticable, the wishes of the American government in the accomplishing,
in the fullest and most liberal manner, the objects which both gov-
ernments had in view in entering into the conventional arrangement
of 1818. He has accordingly been instructed to bring the whole
subject under the consideration of the British government, and to
remonstrate on the part of this government against the illegal and
92909°— S. Doc. 870, 61-3, vol 3 38
1218 MISCELLANEOUS.
vexatious proceedings of the authorities of I^ova Scotia against the
citizens of the United States engaged in the fisheries, and to request
that measures may be forthwith adopted by the British government
to remedy the evil arising out of the misconstruction, on the part of
the provincial authorities, of their conventional engagements, and
prevent the possibility of the recurrence of similar acts. The under-
signed renews to Lord Palmerston, &c.
"A. STEVENSON.
"32, UPPER GROSVENOR STREET,
" March 27, 1841."
This despatch was transmitted to the Secretary for the Colonies on
the 2d of April, and (seven days later) a copy of it was sent to Lord
Falkland, Lieutenant Governor of Nova Scotia, with a request that
his lordship would make immediate inquiry into the allegations con-
tained in it, and furnish the Colonial Office with a detailed report on
the subject, for the information of her Majesty's government. On the
28th of the same month, Lord Falkland wrote to Lord John Russell,
that "The greatest anxiety is felt by the inhabitants of this province
that the convention with the Americans, signed at London on the
20th October, 1818, should be strictly enforced; and it is hoped that
the consideration of the report may induce your lordship to exert
your influence in such a manner as to lead to the augmentation of the
force (a single vessel) now engaged in protecting the fisheries on the
Banks of Newfoundland, and the south shore of Labrador, and the
employment, in addition, of one or two steamers for that purpose.
"The people of this colony have not been wanting in efforts to
repress the incursions of the natives of the United States upon their
fishing grounds, but have fitted out with good effect some small
armed vessels, adapted to follow trespassers into shoal water, or
chase them on the seas;" and that, "finding their own means inade-
quate to the suppression of this evil, the Nova Scotians earnestly
entreat the further . intervention and protection of the mother
country."
His lordship's letter enclosed a copy of a report of a committee
on the fisheries of Nova Scotia, which had been adopted by the House
of Assembly, and a "case" stated, at the request of that body, "for
the purpose of obtaining the opinion of the law officers of the crown
in England." The preamble of the latter document recites the rights
stipulated in the treaty of 1783; the fact of the war between England
and the United States in 1812; the first article of the convention of
1818; and refers to the act of Parliament of 1819, passed to meet
the conditions of the convention, and also to the act of Nova Scotia
of 1836; and concludes with submitting to the consideration of the
Queen's advocate, and her Majesty's attorney general, the following
seven queries:
1. Whether the treaty of 1783 was annulled by the war of 1812,
and whether citizens of the United States possess any right of
fishery in the waters of the lower provinces other than ceded to
them by the convention of 1818; and if so, what right?
2. Have American citizens the right, under that convention, to
enter any of the bays of this province to take fish, if, after they have
so entered, they prosecute the fishery more than three marine miles
from the shores of such bays; or should the prescribed distance of
MISCELLANEOUS. 1219
three marine miles be measured from the headlands, at the entrance
of such bays, so as to exclude them?
3. Is the distance of three marine miles to be computed from the
indents of the coasts of British America, or from the extreme head-
lands, and what is to be considered a headland?
4. Have American vessels, fitted out for a fishery, a right to pass
through the Gut of Canso, which they cannot do without coming
within the prescribed limits, or to anchor there or to fish there; and
is casting bait to lure fish in the track of the vessels fishing, within
the meaning of the convention?
5. Have American citizens a right to land on the Magdalene
islands, and conduct the fishery from the shores thereof, by using
nets and seines ; or what right of fishery do they possess on the shores
of those islands, and what is meant by the term shore ?
6. Have American fisherman the right to enter the bays and harbors
of this province for the purpose of purchasing wood or obtaining
water, having provided neither of these articles at the commencement
of their voyages, in their own country; or have they the right only of
entering such bays and harbors in cases of distress, or to purcnase
wood and obtain water, after the usual stock of those articles for the
voyage of such fishing craft has been exhausted or destroyed ?
7. Under existing treaties, what rights of fishery are ceded to the
citizens of the United States of America, and what reserved for the
exclusive enjoyment of British subjects?
These queries were sent to the law officers of the crown on the 8th
of June, and on the 30th of August they communicated their reply to
Lord Palmerston. They state that, in answer to the first query—
"We have the honor to report that we are of opinion that the
treaty of 1783 was annulled by the war of 1812; and we are also of
opinion that the rights of fishery of the citizens of the United States
must now be considered as defined and regulated by the convention
of 1818; and with respect to the general question, ' if so, what right?
we can only refer to the terms of the convention as explained and
elucidated by the observations which will occur in answering the
other specific queries.
" 2. Except within certain defined limits, to which the query put to
us does not apply, we are of opinion that, by the terms or the treaty,
American citizens are excluded from the light of fishing within three
miles of the coast of British America; and that the prescribed distance
of three miles is to be measured from t V headlands or extreme points
of land next the sea of the coast, or o. the entrance of the bays, and
not from the interior of such bays or inlets of the coast; and conse-
quently that no right exists on the part of American citizens to enter
the bays of Nova Scotia, there to take fish, although the fishing, being
within the bay, may be at a greater distance than three miles from the
shore of the bay, as we are of opinion that the term headland is used
in the treaty to express the part of the land we have before mentioned,
excluding the interior of the bays and the inlets of the coasts.
"4. By the treaty of 1818 it is agreed that American citizens should
have the liberty of fishing in the Gulf of St. Lawrence, within certain
defined limits, in common with British subjects; and such treaty does
not contain any words negativing the right to navigate the passage of
the Gut of Canso, and therefore it may be conceded that such right of
navigation is not taken away by that convention; but we have now
1220 MISCELLANEOUS.
attentively considered the course of navigation to the gulf by Cape
Breton, and likewise the capacity and situation of the passage of
Canso, and of the British dominions on either side, and we are of
opinion that, independently of treaty, no foreign country has the right
to use or navigate the passage of Canso ; and attending to the terms of
the convention relating to the liberty of fishery to be enjoyed by the
Americans, we are also of opinion that that convention did not either
expressly or by implication concede any such right of using or navi-
gating the passage in question. We are also of opinion that casting
bait to lure fish in the track of any American vessels navigating the
passage would constitute a fishing within the negative terms of the
convention.
"5. With reference to the claim of a right to land on the Magdalene
islands, and to fish from the shores thereof, it must be observed that
by the treaty the liberty of drving and curing fish (purposes which
could only be accomplished by landing) in any of the unsettled bays,
&c., of the southern part of Newfoundland, and of the coast of Labra-
dor, is specifically provided for; but such liberty is distinctly nega-
tived in any settled bay, £c.; and it must therefore be inferred that if
the liberty of landing on the shores of the Magdalene islands had been
intended to be conceded, such an important concession would have
been the subject of express stipulation, and would necessarily have
been accompanied with a description of the inland extent of the shore
over which such liberty was to be exercised, and whether in settled or
unsettled parts; but neither of these important particulars is provided
for, even by implication; and that, among other considerations, leads
us to the conclusion that American citizens have no right to land or
conduct the fishery from the shores of the Magdalene islands. The
word 'shore' does not appear to be used in the convention in any other
than the general or ordinary sense of the word, and must be construed
with reference to the liberty to be exercised upon it, and would there-
fore compromise the land covered with water as far as could be avail-
able for the due enjoyment of the liberty granted.
"6. By the convention, the liberty of entering the bays and harbors
of Nova Scotia for the purpose of purchasing wood and obtaining
water is conceded in general terms, unrestricted by any condition ex-
pressed or implied, limiting it to vessels duly provided at the com-
mencement of the voyage; and we are of opinion that no such condi-
tion can be attached to the enjoyment of the liberty.
"7. The rights of fishery ceded to the citizens of the United States,
and those reserved for the exclusive enjoyment of British subjects,
depend altogether upon the convention of 1818, the only existing
treaty on this subject between the two countries, and the material
points arising thereon have been specifically answered in our replies to
the preceding queik -.
"We, have, &c.,
"3. DODSOX.
"Tiros. \VILDE.
"Viscount PALMERSTOX, K. B., &c., c£r"
Fifteen months elapsed before Lord Stanley.* who, as the Earl of
Derby, is the present prime minister of England, sent the answer of
the crown lawyers to Lord Falkland. That it was communicated with
*The successor of Lord John Russell as Secretary for the Colonies.
MISCELLANEOUS. 1221
reluctance, even in November, 1842, is apparent. The subject to
which it relates, said he, "has frequently engaged the attention of my-
self and my colleagues, with the view of adopting further measures, if
necessary, for the protection of British interests in accordance with the
law as laid down by these functionaries. "We have, however, on
full consideration, come to the conclusion, as regards the fisheries of
Nova Scotia, that the precautions taken by the provincial legislature
appear adequate to the purpose; and that being practically acquiesced
in by the Americans, no further measures are required." (The closing
declaration, which I have placed in italics, will not fail to attract
notice.)
Meantime (between August, 1841, and November, 1842,) Lord Falk-
land had forwarded to the colonial secretary two additional reports
made by committees of the House of Assembly, "complaining of the
encroachments of American citizens on the fisheries of British North
America, and praying the establishment of a general code of regula-
tions for their protection. A change had occurred in the ministry of
England, and Mr. Everett had succeeded Mr. Stevenson as our envoy
at the court of St. James.
The colonists were not tardy in acting up to the suggestion of Lord
Stanley, that our government had "practically acquiesced" in the con-
struction of the convention of 1818, presented in Lord Falkland's
"CASE," and affirmed by the crown lawyers. Early in 1843, the sub-
ject was considered at a meeting of the chamber of commerce of Hali-
fax; and the opinion of the Queen's advocate, and her Majesty's
attorney general, was received with great satisfaction by the merchants
of that city. Henceforth, in the judgment of some, competition be-
tween the colonial fishermen and our countrymen was at an end. The
latter, excluded from the great bays by lines drawn from headland to
headland, refused passage through the Strait of Canso, and deprived of
the right of landing on the shores of the Magdalene islands, were, in
effect, to be confined to the Newfoundland and Labrador fisheries.
Assuming, as the colonial authorities did, that we were bound by a
private and ex parte opinion, of which our government had no official
knowledge, the schooner Washington, of Newburyport, was seized for
no reason, as appears, other than "fishing broad (to use a term of
fishermen) in the Bay of Fundy. The fact was communicated to Mr.
Upshur, Secretary of State, who, on the 30th June, 1843, addressed
Mr. Everett in the following terms :
"Sin: I have the honor to transmit to you, herewith, copies of a let-
ter and accompanying papers, relating to the seizure, on the 10th of
May last, on the coast of Nova Scotia, by an officer of the provincial
customs, of the American fishing schooner Washington, of Newbury-
port, Massachusetts, Cheney, master, for an alleged infraction of the
stipulations of the convention of October 20, 1818, between the
United States and Groat Britain.
"Upon a reference to the files of the legation at London, you will
find ti at this complaint is not the first of a similar character which has
arisen out of the proceedings of the authorities of Nova Scotia under
their construction of the convention, and that representations upon
the subject have heretofore been made to the British government on
behalf of American citizens, but, so far as this department is advised,
without leading to a satisfactory result.
1222 MISCELLANEOUS.
"For a full understanding of the whole question involved, I would
particularly point your attention to the instructions of this depart-
ment to Mr. Stevenson, Nos. 71 and 89, of the respective dates of
April 17, 1840, and February 20, 1841, and to the several despatches
addressed by that minister to the Secretary of State, numbered 97, 99,
108, 120, and 124, during the years 1840 and 1841.
"I need not remark upon the importance to the negotiating inter-
ests of the United States of having a proper construction put upon the
first article of the convention of 1818 by the parties to it. That which
has hitherto obtained is believed to be the correct one. The obvious
necessity of an authoritative intervention to put an end to proceedings
on the part of the British colonial authorities, alike conflicting with
their conventional obligations, and ruinous to the fortunes and sub-
versive of the rights of an enterprising and deserving class of our fel-
low-citizens, is too apparent to allow this government to doubt that
the government of h^r Britannic Majesty will take efficient steps for
the purpose. The President's confident expectation of an early and
satisfactory adjustment of these difficulties is grounded upon his reli-
ance on the sense of justice of the Queen's government, and on the
fact that from the year 1818, the date of the convention, until some
years after the enactment of the provincial law out of which these
troubles have arisen, a practical construction has been given to the
first article of that instrument which is firmly relied on as settling its
meaning in favor of the rights of American citizens as claimed by the
United States.
"I have, therefore, to request that you will present this subject
again to the consideration of her Majesty's government by addressing
a note to the British Secretary of State for Foreign Affairs, reminding
him that the letter of Mr. Stevenson to Lord Palmerston remains un-
answered, and informing him of the anxious desire of the President
that proper means should be taken to prevent the possibility of a
recurrence of any like cause of complaint."
Mr. Everett, on the 10th of August of the same year, thus ably and
clearly stated his views :
"The undersigned, Envoy Extraordinary and Minister Plenipoten-
tiary of the United States or America, has the honor to transmit to the
Earl of Aberdeen, her Majesty's principal Secretary of State for Foreign
Affairs, the accompanying papers relating to the seizure on the 10th of
May last, on the coast of Nova Scotia, by an officer of the provincial
customs, of the American fishing schooner Washington, of Newbury-
port, in the State of Massachusetts, for an alleged infraction of the
stipulations of the convention of the 20th of October, 1818, between
the United States and Great Britain.
"It appears from the deposition of William Bragg, a seaman on
board the Washington, that at the time of her seizure she was not
within ten miles of the coast of Nova Scotia. By the first article of
the convention above alluded to, the United States renounce any lib-
erty heretofore enjoyed or claimed by their inhabitants to take, dry,
or cure fish on or within three marine miles of any of the coasts of her
Majesty's dominions in America, for which express provision is not
made in the said article. This renunciation is the only limitation
existing on the right of fishing upon the coasts of her Majesty's do-
minions in America, secured to the people of the United States by the
third article of the treaty of 1783.
MISCELLANEOUS. 1223
"The right, therefore, of fishing on any part of the coast of Nova
Scotia, at a greater distance than three miles, is so plain, that it would
be difficult to conceive on what ground it could be drawn in question,
had not attempts been already made by the provincial authorities of
her Majesty's colonies to interfere with its exercise. These attempts
have formed the subject of repeated complaints on the part of the
government of the United States, as will appear from several notes
addressed by the predecessor of the undersigned to Lord Palmerston.
"From the construction attempted to be placed, on former occa-
sions, upon the first article of the treaty of 1818, by the colonial au-
thorities, the undersigned supposes that the 'Washington' was seized
because she was found fishing in the Bay of Fundy, and on the ground
that the lines within which American vessels are forbidden to nsh are
to run from headland to headland, and not to follow the shore. It is
plain, however, that neither the words nor the spirit of the conven-
tion admit of any such construction; nor, it is believed, was it set up
by the provincial authorities for several years after the negotiation of
that instrument. A glance at the map will show Lord Aberdeen that
there is, perhaps, no part of the great extent of the seacoasts of her
Majesty's possessions in America in which the right of an American
vessel to nsh can be subject to less doubt than that in which the
'Washington' was seized.
"For a full statement of the nature of the complaints which have,
from time to time, been made by the government of the United States
against the proceedings of the colonial authorities of Great Britain, the
undersigned invites the attention of Lord Aberdeen to a note of Mr.
Stevenson, addressed to Lord Palmerston on the 27th of March, 1841.
The receipt of this note was acknowledged by Lord Palmerston on
the 2d of April, and Mr. Stevenson was informed that the subject was
referred by his lordship to the Secretary of State for the colonial
department.
"On the 28th of the same month Mr. Stevenson was further in-
formed by Lord Palmerston, that he had received a letter from the
colonial department, acquainting his lordship that Mr. Stevenson's
communication would be forwarded to Lord Falkland, with instruc-
tions to inquire into the allegations contained therein, and to furnish
a detailed report upon the subject. The undersigned does not find on
the files of this legation any further communication from Lord Pal-
merston in reply to Mr. Stevenson's letter of the 27th March, 1841, and
he believes that letter still remains unanswered.
"In reference to the case of the 'Washington,' and those of a similar
nature which have formerly occurred, the undersigned cannot but
remark upon the impropriety of the conduct of the colonial authorities
in undertaking, without directions from her Majesty's government, to
set up a new construction of a treaty between the United States and
England, and in proceeding to act upon it by the forcible seizure of
American vessels.
"Such a summary procedure could only be justified by a case of
extreme necessity, and where some grave and impending mischief
required to be averted without delay. To proceed to the capture- of
vessels of a friendly power for taking a few fish within limits alleged to
be forbidden, although allowed by the express terms of the treaty,
must be regarded as a very objectionable stretch of provincial author-
ity. The case is obviously one for the consideration of the two govern-
1224 MISCELLANEOUS.
ments, and in which no disturbance of a right exercised without ques-
tion for fifty years from the treaty of 1783 ought to be attempted by
any subordinate authority. Even her Majesty's government, the
undersigned is convinced, would not proceed in such a case to violent
measures of suppression without some understanding with the gov-
ernment of the United States, or, in the failure of an attempt to come
to an understanding, without due notice given of the course intended
to be pursued.
"The undersigned need not urge upon Lord Aberdeen the desira-
bleness of an authoritative intervention on the part of her Majesty's
government to put an end to the proceedings complained of. The
President of the United States entertains a confident expectation of an
early and equitable adjustment of the difficulties which have been
now for so long a time under the consideration of her Majesty's govern-
ment. This expectation is the result of the President's reliance upon
the sense of justice of her Majesty's government, and of the fact that
from the year 1818, the date of the convention, until some years after
the attempts of the provincial authorities to restrict the rights of
American vessels by colonial legislation, a practical construction was
given to the first article of the convention, in accordance with the
obvious purport of its terms, and settling its meaning as understood
by the United States.
"The undersigned avails himself of this opportunity to tender to
Lord Aberdeen the assurance of his distinguished consideration."
Lord Aberdeen did not reply to Mr. Everett's letter until the 15th of
April, 1844. In his answer of that date, which follows, it will be
seen that his lordship declined to enter into a defence of the course
adopted by Nova Scotia; and that he confined himself to the seizure
of the Washington, and to an argument upon the term "bay" as used
in the convention. It will be seen, also, that he justified the detention
of the Washington on the ground, solely, that she "was found fishing
within the Bay of Fundy." He says:
"The note which Mr. Everett, Envoy Extraordinan7 and Minister
Plenipotentiary of the United States of America, addressed to the
undersigned, her Majesty's Principal Secretary of State for Foreign
Affairs, on the 10th of August last, respecting the seizure of the Ameri-
can fishing vessel Washington, by the officers of Nova Scotia, having
been duly referred to the Colonial Office, and by that office to the
governor of Nova Scotia, the undersigned has now the honor to com-
municate to Mr. Everett the result of those references.
"The complaint which Mr. Everett submits to her Majesty's gov-
ernment is, that, contrary to the express stipulations of the conven-
tion concluded on the 20th of October, 1818, between Great Britain
and the United States, an American fishing vessel was seized by the
British authorities for fishing in the Bay of Fundy, where Mr. Everett
affirms that, by the treaty, American vessels have a right to fish, pro-
vided they are at a greater distance than three marine miles from the
coast.
"Mr. Everett, in submitting this case, does not cite the words of the
treaty, but states, in general terms, that by the first article of said
treaty the United States renounce any liberty heretofore enjoyed or
claimed by their inhabitants, to take, dry, or cure fish, on or within
three miles of any of the coasts of any Majesty's dominions in America.
Upon reference, however, to the words of the treaty, it will be seen
MISCELLANEOUS. 1225
that American vessels have no right to fish, and indeed are expressly
debarred from fishing, in any bay on the coast of Nova Scotia.
"The words of the treaty of October, 1818, article 1, run thus: 'And
the United States hereby renounce forever any liberty heretofore
enjoyed or claimed by the inhabitants thereof, to take, dry, or cure
fish, on or within three marine miles of any of the coasts, bays, creeks,
or harbors of his Britannic Majesty's dominions in America, not
included within the above-mentioned limits, [that is, Newfoundland,
Labrador, and other parts separate from Nova Scotia:] provided, how-
ever, that the American fishermen shall be admitted to enter such bays
or harbors for the purpose of shelter/ &c.
"It is thus clearly provided that American fishermen shall not take
fish within three marine miles of any bay of Nova Scotia, &c. If the
treaty was intended to stipulate simply that American fishermen
should not take fish within three miles of the coast of Nova Scotia, &c.,
there was no occasion for using the word ' bay ' at all. But the proviso
at the end of the article shows that the word 'bay' was used design-
edly; for it is expressly stated in that proviso, that under certain cir-
cumstances the American fishermen may enter bays, by which it is
evidently meant that they may, under those circumstances, pass the
sea-line which forms the entrance of the bay. The undersigned ap-
prehends that this construction will be admitted by Mr. Everett.
"That the Washington was found fishing within the Bay of Fundy,
is, the undersigned believes, an admitted fact, and she was seized
accordingly."
It is possible that the contents of Lord Aberdeen's letter were imme-
diately communicated to Lord Falkland, since the latter, a few weeks
after its date, issued a proclamation charging all officers of the cus-
toms, the sheriffs, and other officials of Nova Scotia, to be vigilant in
enforcing the provision of several recited acts of the imperial and pro-
vincial legislatures, and the stipulations of the convention with the
United States, relative to illicit fishing within certain distance of the
coasts, bays, and harbors of British America. Mr. Everett again ad-
dressed the British minister on the 25th May, 1844, in a state paper
which, for spirit, dignity, and force of argument, is a model. It is
here inserted entire:
"The undersigned, Envoy Extraordinary and Minister Plenipoten-
tiary of the United States of America, had the honor duly to receive
the note of the 15th of April, addressed to him by the Earl of Aber-
deen, her Majesty's Principal Secretary of State for Foreign Affairs, in
reply to the note of the undersigned of the 10th of August last, relative
to the seizure of the American vessel the Washington, for having been
found fishing within the limits of the Bay of Fundy.
"The note of the undersigned of the 10th of August last, although
its immediate occasion was the seizure of the Washington, con-
tained a reference to the correspondence between Mr. Stevenson and
Viscount Palinerston on the subject of former complaints of the Ameri-
can government of the manner in which the fishing vessels of the
United States had, in several wavs, been interfered with by the pro-
vincial authorities, in contravention, as is believed, of the treaty of
October, 1818, between the two countries. Lord Aberdeen's atten-
tion was particularly invited to the fact that no answer as yet had been
returned to Mr. Stevenson's note to Lord Palmerston, of 27th March,
1841, the receipt of which, and its reference to the Colonial Depart-
1226 MISCELLANEOUS.
ment, were announced by a note of Lord Palmerston of the 2d of April.
The undersigned further observed that, on the 20th of the same month,
Lord Palmerston acquainted Mr. Stevenson that his lordship had been
advised from the Colonial Office that 'copies of the papers received
from Air. Stevenson would be furnished to Lord Falkland, with in-
structions to inquire into the allegations contained therein, and to fur-
nish a detailed report on the subject;' but that there was not found on
the files of this legation any further communication from Lord Palmer-
ston on the subject.
" The note of Lord Aberdeen of the 15th of April last is confined ex-
clusively to the case of the Washington ; and it accordingly becomes
the duty of the undersigned again to invite his lordship's attention
to the correspondence above referred to between Mr. Stevenson and
Lord Palmerston, and to request that inquiry may be made, without
unnecessary delay, into all the causes of complaint which have been
made by the American government against the improper interference
of the British colonial authorities with the fishing vessels of the
United States.
"In reference to the case of the Washington, Lord Aberdeen, in his
note of the 15th of April, justifies her seizure by an armed provincial
vessel, on the assumed fact that, as she was found fishing in the Bay
of Fundy, she was within the limits from which the fishing vessels of
the United States are excluded by the provisions of the convention
between the two countries of October, 1818.
"The undersigned had remarked, in his note of the 10th of August
last, on the impropriety of the conduct of the colonial authorities in
proceeding in reference to a question of construction of a treaty pend-
ing between the two countries, to decide the question in their own fa-
vor, and in virtue of that decision to order the capture of the vessels of
a friendly State. A summary exercise of power of this kind, the un-
dersigned is sure, would never be resorted to by her Majesty's govern-
ment, except in an extreme case, while a negotiation was in train on
the point at issue. Such a procedure, on the part of a local colonial
authority, is, of course, highly objectionable, and the undersigned can-
not but again invite the attention of Lord Aberdeen to this view of the
subject.
"With respect to the main question of the right of American vessels
to fish within the acknowledged limits of the Bay of Fundy, it is neces-
sary, for a clear understanding of the case, to go back to the treaty of
1783.
"By this treaty it was provided that the citizens of the United
States should be allowed ' to take fish of every kind on such part of the
coast of Newfoundland as British fishermen shall use, (but not to dry
or cure the same on that island,) and also on the coasts, bays, and
creeks of all other of his Britannic Majesty's dominions in America,
and that the American fishermen shall have liberty to dry and cure
fish in any of the unsettled bays, harbors, and creeks of Nova Scotia,
Magdalene islands, and Labrador, so long as the same shall remain un-
settled; but so soon as the same or either of them shall be settled, it
shall not be lawful for the said fishermen to dry or cure fish at such
settlement without a previous agreement for that purpose with the
inhabitants, proprietors, or possessors of that ground.'
"These privileges and conditions were in reference to a country
of which a considerable portion was then unsettled, likely to be
MISCELLANEOUS. 1227
attended with differences of opinion as to what should, in
the progress of time, be accounted a settlement from which
American fishermen might be excluded. These differences in
fact arose, and by the year 1818 the state of things was so far
changed that her Majesty's government thought it necessary, in
negotiating the convention of that year, entirely to except the prov-
ince of Nova Scotia from the number of the places which might be fre-
quented by Americans as being in part unsettled, and to provide that
the fishermen of the United States should not pursue their occupation
within three miles of the shores, bays, creeks, and harbors of that
and other parts of her Majesty's possessions similarly situated. The
privilege reserved to American fishermen by the treaty of 1783, of
taking fish in all the waters, and drying them on all the unsettled por-
tions of the coast of these possessions, was accordingly, by the con-
vention of 1818, restricted as follows:
" 'The United States hereby renounce forever any liberty hereto-
fore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure
fish on or within three miles of any of the coasts, bays, creeks, or har-
bors of his Britannic Majesty's dominions in America, not included
within the above-mentioned limits: provided, however, that the
American fishermen shall be admitted to enter such bays or harbors
for the purpose of sheltering and repairing damages therein, of pur-
chasing wood, and of obtaining water, and for no other purpose what-
ever.'
"The existing doubt as to the construction of the provision arises
from the fact that a broad arm of the sea runs up to the northeast, be-
tween the provinces of New Brunswick and Nova Scotia. This arm of
the sea being^ commonly called the Bay of Fundy, though not in reality
possessing all the characters usually implied by the term 'bay,' has of
late years been claimed by the provincial authorities of Nova Scotia to
be included among ' the coasts, bays, creeks, and harbors' forbidden to
American fishermen.
"An examination of the map is sufficient to show the doubtful na-
ture of this construction. It was notoriously the object of the article
of the treaty in question to put an end to the dial, ulties which had
grown out of the operations of the fishermen from the United States
along the coasts and upon the shores of the settled portions of the
country, and for that purpose to remove their vessels to a distance not
exceeding three miles from the same. In estimating this distance, the
undersigned admits it to be the intent of the treaty, as it is itself rea-
sonable, to have regard to the general line of the coast; and to consider
its bays, creeks, and harbors — that is, the indentations usually so
accounted — as included within that line. But the undersigned cannot
admit it to be reasonable, instead of thus following the general direc-
tions of the coast, to draw a line from the southwesternmost point of
Nova Scotia to the termination of the northeastern boundary between
the United States and New Brunswick, and to consider the arms of the
sea which will thus be cut off, and which cannot, on that line, be less than
sixtv miles wide, as one of the bays on the coast from which American
vessels are excluded. By this interpretation the fishermen of the United
States would be shut out from the waters distant, not three, but thirty
miles from any part of the colonial coast. The undersigned cannot
perceive that any assignable object of the restriction imposed by the
convention of 1818 on the fishing privilege accorded to trie citizens of
1228 MISCELLANEOUS.
the United States by the treaty of 1783, requires such a latitude of
construction.
" It is obvious that (by the terms of the treaty) the farthest distance
to which fishing vessels of the United States are obliged to hold them-
selves from the colonial coasts and bays, is three miles. But, owing to
the peculiar configuration of these coasts, there is a succession of bays
indenting the shores both of New Brunswick and Nova Scotia, within
the Bay of Fundy. The vessels of the United States have a general
right to approach all the bays in her Majesty's colonial dominions,
within any distance not less than three miles — a privilege from the en-
joyment of which they will be wholly excluded — in this part of the
coast, if the broad arm of the sea which flows up between New Bruns-
wick and Nova Scotia is itself to be considered one of the forbidden
bays.
Lastly — and this consideration seems to put the matter beyond
doubt — the construction set up by her Majesty's colonial authorities,
would altogether nullify another, and that a most important stipula-
tion of the treaty, about which there is no controversy, viz : the privi-
lege reserved to American fishing vessels of taking shelter and repair-
ing damages in the bays within which they are forbidden to fish.
There is, of course, no shelter nor means of repairing damages for a ves-
sel entering the Bay of Fundy, in itself considered. It is necessary,
before relief or succor of any kind can be had, to traverse that broad
arm of the sea and reach the bays and harbors, properly so called,
which indent the coast, and which are no doubt the bays and harbors
referred to in -the convention of 1818. The privilege of entering the
latter in extremity of weather, reserved by the treaty, is of the utmost
importance. It enables the fisherman, whose equipage is always very
slender, (that of the Washington was four men all told,) to pursue his
laborious occupation with comparative safety, in the assurance that in
one of the sudden and dangerous changes of weather so frequent and so
terrible on this iron-bound coast, he can take shelterin a neighboring
and friendly port. To forbid him to approach within thirty miles of
that port, except for shelter in extremity of weather, is to forbid him
to resort there for that purpose. It is keeping him at such a distance
at sea as wholly to destroy the value of the privilege expressly reserved.
"In fact it would follow, if the construction contended for by the
British colonial authorities were sustained, that two entirely different
limitations would exist in reference to the right of shelter reserved to
American vessels on the shores of her Majesty's colonial possessions.
They would be allowed to fish within three miles of the place of shelter
along the greater part of the coast; while in reference to the entire ex-
tent of shore within the Bay of Fundy, they would be wholly prohib-
ited from fishing along the coast, and would be kept at a distance of
twenty or thirty miles from any place of refuge in case of extremity.
There are certainly no obvious principles which render such a con-
struction probable.
"The undersigned flatters himself that these considerations will go
far to satisfy Lord Aberdeen of the correctness of the American under-
standing of the words 'Bay of Fundy,' arguing on the terms of the
treaties of 1783 and 1818. When it is admitted that, as the under-
signed is advised, there has been no attempt till late years to give them
any other construction than that for which the American government
now contends, the point would seem to be placed beyond doubt.
MISCELLANEOUS. 1229
"Meantime Lord Aberdeen will allow that this is a question, however
doubtful, to be settled exclusively by her Majesty's government and
that of the United States. No disposition has been evinced by the lat-
ter to anticipate the decision of the question ; and the undersigned must
again represent it to the Earl of Aberdeen as a matter of just complaint
and surprise on the part of his government, that the opposite coarse
has been pursued by her Majesty's colonial authorities, who have pro-
ceeded (the undersigned is confident without instructions from Lon-
don) to capture and detain an American vessel on a construction of
the treaty which is a matter of discussion between the two govern-
ments, and while the undersigned is actually awaiting a communica-
tion on the subject promised to his predecessor.
"This course of conduct, it may be added, objectionable under any
circumstances, finds no excuse in any supposed urgency of the case.
The Washington was not within three times the limit admitted to be
prescribed in reference to the approach of American vessels to all other
parts of the coast, and in taking a few fish, out of the abundance which
exists in those seas, she certainly was inflicting no injury on the inter-
ests of the colonial population which required this summary and vio-
lent measure of redress.
"The undersigned trusts that the Earl of Aberdeen, on giving a
renewed consideration to the case, will order the restoration of the
Washington, if still detained, and direct the colonial authorities to
abstain from the further capture of the fishing vessels of the United
States under similar circumstances, till it has been decided between
the two governments whether the Bay of Fundy is included among
'the coasts, bays, creeks, and harbors/ which American vessels are
not permitted to approach within three miles.
•'The undersigned requests Lord Aberdeen to accept the assurances
of his distinguished consideration."
On the 6th September, 1844, Mr. Calhoun (who had succeeded Mr.
Upshur as Secretary of State) called the attention of Mr. Everett to
the seizure of the American fishing schooner Argus, by the British
cutter Sylph, off the coast of Cape Breton. From the representation
which accompanied the Secretary's despatch, it appears that the
Argus, when captured, was at a distance of "fifteen miles from any
land." This was the second case of seizure under the new construction
of the convention of 1818. Mr. Everett, in presenting the matter to
Lord Aberdeen, on the 9th of October of that year, stated that "The
grounds assigned, for the capture of this vessel are not stated with great
distinctness. 1 hey appear to be connected partly by the construction
set up by her Majesty's provincial authorities in America, that the line
within which vessels of the United States are forbidden to fish is to be
drawn from headland to headland, and not to follow the indentations
of the coast, and partly with the regulations established by those
authorities, in consequence of the annexation of Cape Breton to Nova
Scotia." That, "with respect to the former point, the undersigned
deems it unnecessary, on this occasion, to add anything to the obser-
vations contained in his note to Lord Aberdeen, of the 25th of May, on
tho subject of limitations of the right secured to American fishing ves-
sels by the treaty of 1783 and the convention of 1818, in reply to the
note of his lordship of the 15th of April on the same subject. As far
as the capture of the Ai made under the authority of the act
annexing Cape Breton to Nova Scotia, the undersigned would observe
1230 MISCELLANEOUS.
that he is under the impression that the question of the legality of that
measure is still pending before the judicial committee of her Majesty's
privy council. It would be very doubtful whether rights secured to
American vessels under public compacts could, under any circum-
stances, be impaired by acts of subsequent domestic legislation; but
to proceed to capture American vessels, in virtue of such acts, while
their legality is drawn in question by the home government, seems to
be a measure as unjust as it is harsh."
And he remarked, further, that "it is stated by the captain of the
'Argus' that the commander of the Nova Scotia schooner, by which he
was captured, said that he was within three miles of the line beyond
which, 'on their construction of the treaty, we were a lawful prize, and
that he seized us to settle the question.'
"The undersigned again feels it his duty, on behalf of his govern-
ment, formally to protest against an act of this description. American
vessels of trifling size, and pursuing a branch of industry of the most
harmless description, which, however beneficial to themselves, occa-
sions no detriment to others, instead of being turned off the debatable
fishing ground — a remedy fully adequate to the alleged evil — are pro-
ceeded against as if engaged in the most undoubted infractions of
municipal law or the law of nations, captured and sent into port, their
crews deprived of their clothing and personal effects, and the vessels
subjected to a mode of procedure in the courts which amounts in many
cases to confiscation; and this is done to settle the construction of a
treaty.
"A course so violent and unnecessarily harsh would be regarded by
any government as a just cause of complaint against any other witn
whom it might differ in the construction of a national compact. But
when it is considered that these are the acts of a provincial govern-
ment, with whom that of the United States has and en n have no inter-
course, and that they continue and are repeated while the United
States and Great Britain, the only parties to the treaty, the purport of
whose provisions is called in question, are amicably discussing the
matter, with every wish, on both sides, to bring it to a reasonable
settlement, Lord Aberdeen \vill perceive that it becomes a subject of
complaint of the most serious kind.
"As such, the undersigned is instructed again to bring it to Lord
Aberdeen's notice, and to express the confident*hope that such meas-
ures of redress as the urgency of the case requires will, at the instance
of his lordship, be promptly resorted to."
The events of 1845 were highly interesting and important. The
colonists had, apparently, accomplished their long-cherished plans.
The opinion of the crown lawyers in 1841 ; the declaration of
Lord Stanley in 1842, that our government "practically acquiesced"
in the new construction of the convention; and the capture of the
Washington in 1843, for an infringement of that construction, and
for no other offence whatever, were all calculated to impress
them with the belief that the contest was at an end. Such,
I confess, was the inclination of my own mind. My home
was on the frontier; I was a dealer in the products of the
sea, and was in the daily transaction of business with fisher-
men of New Brunswick and Nova Scotia, and was well advised of
the measures which were adopted by the colonists, from time to time,
to induce the ministry at home to sustain their pretensions. The
MISCELLANEOUS. 1231
zeal which was manifested by those who managed the British side
of the case, and the seeming apathy of the American press and the
American people; the rumors from the Government House at Halifax,
and the want of all information from the White House at Washing-
ton, gave rise to much alarm. Official silence on our part was at last
broken; and such of our citizens as were engaged in the fisheries, or
were otherwise involved in the issue of the controversy, were as-
tounded, in June, at the following paragraph which appeared in the
"Union," a newspaper supposed to enjoy the confidence of our gov-
ernment, and said, in the popular sentiment, to be its " organ." "We
are gratified," said that paper, "to be now enabled to state, that a
despatch has been recently received at the Department of State from
Mr. Everett, our minister at London, with which he transmits a note
from Lord Aberdeen, containing the satisfactory intelligence that,
after a reconsideration of the subject, although the Queen's govern-
ment adhere to the construction of the convention which they have
always maintained, they have still come to the determination of
relaxing from it, so far as to allow American fishermen to pursue their
avocations in any part of the Bay of Fundy, provided they do not
approach — except in the cases specified in the treaty of 1818 — within
three miles of the entrance of any bay on the coast of Nova Scotia or
New Brunswick.
"This is an important concession, not merely as removing an
occasion of frequent and unpleasant disagreement between the two
governments, but as reopening to our citizens those valuable fishing
grounds within the Bay of Fundy which they enjoyed before the war
of 1812, but from which, as the British government has since main-
tained, they were excluded by the convention of 1818."
The assertion, from such a source, that the British government had
"always maintained" the construction of the convention contended
for in the "case" submitted to the crown lawyers by Lord Falkland,
in 1841; the annunciation that our vessels were no longer to fish
"within three miles of the ENTRANCE of any bay on the coast of Nova
Scotia or New Brunswick," the Bay of Fundy alone excepted; the fur-
ther declaration that the fishing grounds of that bay "enjoyed before
the war of 1812," and lost to us by that event, were now "reopened"
to us by "an important concession" — excited the liveliest sensibility
and were regarded in the fishing towns of Maine and Massachusetts
with dismay. The colonists had pushed their claims so secretly and
so adroitly, that the crowning acts of their policy were hardly known
to our countrymen who resorted to their seas; and the fact that the
Bay of Fundy was in dispute, was first ascertained by many of them
on the seizure of the "Washington" for fishing there. It was ex-
pected that some more definite annunciation would be made, or that
the correspondence between Mr. Everett and the British government,
which preceded and led to the "concession," would follow the article
just quoted from the "Union;" but the precise terms of the arrange-
ment of 1845 were never stated, either in that paper or elsewhere,
and the citizens whose property was exposed to capture by British
cruisers and colonial cutters were left to pursue their business in
apprehension and doubt. Under these circumstances, the writer of
this report assumed the task of attempting to impress the public mind
with the probable state of affairs. He wrote for the periodical and
for the newspaper press; he addressed letters to persons interested
1232 MISCELLANEOUS.
in enterprises to the British colonial seas, and to persons hi official
employments; he continued his labors, in various other ways, for
quite a year: he was unsupported, and abandoned the design finally
in despair.
The American people remained in ignorance of the tenor of the cor-
respondence referred to above until August, 1852, when it was em-
braced in the documents submitted by the President to the Senate, in
answer to a resolution of that body. Lord Aberdeei 's letter of March
10, 1845, consenting to admit our fishermen into the Bay of Fundy,
"as the concession of a privilege" and in relaxation of the new con-
struction of the convention, and Mr. Everett's reply, of the 25th of
the same month, accepting the same as the continuation of "a right"
always enjoyed, and never impaired, are properly inserted in this
connexion. The letter of our minister, it is to be observed, was
among his last official acts; as he was recalled almost immediately
after communicating to our government the conditions which, in
opposition to the remonstrances of the colonists, and the alleged
"practical acquiescence" of our own cabinet in the opinion of the
crown lawyers, he had been able to secure; it closed the correspond-
ence. In ability, it is in no respect inferior to his letter of May 25th,
1844, already copied, and is among the most valuable state papers in
our archives, inasmuch as it is the only one which we can cite to show
our dissent to the British claim to the Bay of Fundy, "as a bay within
the meaning of the treaty of 1818."
His lordship said:
"The undersigned, her Majesty's Principal Secretary of State for
Foreign Affairs, duly referred to the colonial department the note
which Mr. Everett, Envoy Extraordinary and Minister Plenipoten-
tiary of the United States of America, did him the honor to address
to him on the 25th of May last, respecting the case of the 'Washing-
ton/ fishing vessel, and on the general question of the right of United
States fishermen to pursue their calling in the Bay of Fundy; and
having shortly since received the answer of that department, the
undersigned is now enabled to make a reply to Mr. Everett's commu-
nication, which he trusts will be found satisfactory.
"In acquitting himself of this duty, the undersigned will not think
it necessary to enter into a lengthened argument in reply to the
observations which have at different times been submitted to her
Majesty's government by Mr. Stevenson and Mr. Everett, on the sub-
ject of the right of fishing in the Bay of Fundy, as claimed in behalf
of the United States citizens. The undersigned will confine himself
to stating that after the most deliberate reconsideration of the subject,
and with every desire to do full justice to the United States, and to
view the claims put forward on behalf of United States citizens in the
most favorable light, her Majesty's government are nevertheless still
constrained to deny the right of United States citizens, under the
treaty of 1818, to fish hi that part of the Bay of Fundy which, from
its geographical position, may properly be considered as included
within the British possessions.
"Her Majesty's government must still maintain — and in this view
they are fortified by high legal authority — that the Bay of Fundy is
rightfully claimed by Great Britain, as a bay within the meaning of
the treaty of 1818. And they equally maintain the position which was
laid down in the note of the undersigned, dated the 15th of April last,
MISCELLANEOUS. 1233
that, with regard to the other bays on the British American coasts, no
United States fisherman has, under that convention, the right to fish
within three miles of the entrance of such bays as designated by a line
drawn from headland to headland at that entrance.
"But while her Majesty's government still feel themselves bound to
maintain these positions as a matter of right, they are nevertheless not
insensible to the advantages which would accrue to both countries
from a relaxation of the exercise of that right ; to the United States as
conferring a material benefit on their fishing trade; and to Great
Britain and the United States, conjointly and equally, by the removal
of a fertile source of disagreement between them.
"Her Majesty's government are also anxious, at the same time that
they uphold the just claims of the British crown, to evince by every
reasonable concession their desire to act liberally and amicably
towards the United States.
"The undersigned has accordingly much pleasure in announcing to
Mr. Everett the determination to which her Majesty's government
have come, to relax in favor of the United States fishermen that right
which Great Britain has hitherto exercised, of excluding those fisher-
men from the British portion of the Bay of Fundy, and they are pre-
pared to direct their colonial authorities to allow henceforward the
United States fishermen to pursue their avocations in any part of the
Bay of Fundy, provided they do not approach, except in the cases
specified in the treaty of 1818, within three miles of the entrance of any
bay on the coast of Nova Scotia or New Brunswick.
"In thus communicating to Mr. Everett the liberal intentions of her
Majesty's government, the undersigned desires to call Mr. Everett's at-
tention to the fact that the produce of the labor of the British colonial
fishermen is at the present moment excluded by prohibitory duties on
the part of the United States from the markets of that country; and
the undersigned would submit to Mr. Everett that the moment at
which the British government are making a liberal concession to
United States trade, might well be deemed favorable for a counter
concession on the part of the United States to British trade, by the
reduction of the duties which operate so prejudicially to the interest
of the British colonial fishermen.
"The undersigned has the honor to renew to Mr. Everett the assur-
ances of his hign consideration."
Mr. Everett rejoined:
"The undersigned, Envoy Extraordinary and Minister Plenipoten-
tiary of the United States of America, has the honor to acknowledge
the receipt of a note of the 10th instant from the Earl of Aberdeen, her
Majesty's Principal Secretary of State for Foreign Affairs, in reply to
the communication of the undersigned of tlm 1 5th of May last, on the
case of the 'Washington/ and the construction given by the govern-
ment of the United States to the convention of 1818. relative to the
right of fishing on the coasts of Nova Scotia and New Brunswick.
"Lord Aberdeen acquaints the undersigned, that, after the most de-
liberate reconsideration of the subject, and with every desire to do full
justice to the United States and to view the claims put forward on be-
half of their citizens in the most favorable light, her Majesty's govern-
ment are nevertheless still constrained to deny the right of citizens of
the United States, under the treaty of 1818, to fish in that part of the
92909°— S. Doc. 870, 61-3, vol 3 39
1234 MISCELLANEOUS.
Bay of Fundy which from its geographical position may properly be
considered as included within the British possessions; and also to
maintain that, with regard to the other bays on the British American
coasts, no United States fisherman has, under that convention, the
right to fish within three miles of the entrance of such bay, as desig-
nated by a line drawn from headland to headland at that entrance.
"Lord Aberdeen, however, informs the undersigned that, although
continuing to maintain these oositions as a matter of right, her
Majesty's government are not insensible to the advantages which
might accrue to both countries from a relaxation in its exercise; that
they are anxious, while upholding the just claims of the British crown,
to evince by eveiy reasonable concession their desire to act liberally
and amicably towards the United States; and that her Majesty's
government have accordingly come to the determination 'to relax in
favor of the United States fishermen the right which Great Britain has
hitherto exercised of excluding those fishermen from the British por-
tion of the Bay of Fundy, and are prepared to direct their colonial
authorities to allow, henceforward, the United vStates fishermen to pur-
sue their avocations in any part of the Bay of Fundy, provided they
do not approach, except in the cases specified in the treaty of 1818,
within three miles of the entrance of any bay on the coast of Nova
Scotia or New Brunswick.'
"The undersigned receives with great satisfaction this communica-
tion from Lord Aberdeen, which promises the permanent removal of a
fruitful cause of disagreement between the two countries, in reference
to a valuable portion of the fisheries in question. The government of
the United States, the undersigned is persuaded, will duly appreciate
the friendly motives which have led to the determination on the part of
her Majesty's government announced in Lord Aberdeen's note, and
which he doubts not will have the natural effect of acts of liberality
between powerful states, of producing benefits to both parties, beyond
any immediate interest which may be favorably affected.
"While he desires, however, without reserve, to express his sense
of the amicable disposition evinced by her Majesty's government on
this occasion in relaxing in favor of the United States the exercise of
what after deliberate consideration, fortified by high legal authority,
is deemed an unquestioned right of her Majesty's government, the un-
dersigned would be unfaithful to his duty did he omit to remark to
Lord Aberdeen that no arguments have at any time been adduced
to shake the confidence of the government of the United States in their
own construction of the treaty. While they have ever been prepared
to admit, that in the letter of one expression of that instrument there
is some reason for claiming a right to exclude United States fishermen
from the Bay of Fundy, (it being difficult to deny to that arm of the
sea the name of 'bay,' which long geographical usage has assigned to
it,) they have ever strenuously maintained that it is only on their own
construction of the entire article that its known design in reference to
the regulation of the fisheries admits of being carried into effect.
"The undersigned does not make this observation for the sake of
detracting from the liberality evinced by her Majesty's government
in relaxing from what they regard as their right; but it would be
placing his own government in a false position to accept as mere favor
that for which they have so long and strenuously contended as due
to them under the convention.
MISCELLANEOUS. 1235
"It becomes the more necessary to make this observation, in con-
sequence of some doubt as to the extent of the proposed relaxation.
Lord Aberdeen, after stating that her Majesty's government felt
themselves constrained to adhere to the right of excluding the
United States fishermen from the Bay of Fundy, and also with regard
to other bays on the British American coasts, to maintain the position
that no United States fisherman has, under that convention, the right
to fish within three miles of the entrance of such bays, as designated
by a line drawn from headland to headland at that entrance, adds,
that 'while her Majesty's government still feel themselves bound to
maintain these positions as a matter of right, they are not insensible
to the advantages which would accrue to both countries from the
relaxation of that right.'
"This form of expression might seem to indicate that the relaxation
proposed had reference to both positions; but when Lord Aberdeen
proceeds to state more particularly its nature and extent, he confines
it to a permission to be granted to 'the United States fishermen to
pursue their avocations in any part of the Bay of Fundy, provided
they do not approach, except in the cases specified in the treaty of
1818, within three miles of the entrance of any bay on the coast of
Nova Scotia and New Brunswick,' which entrance is defined, in
another part of Lord Aberdeen's note, as being designated by a line
drawn from headland to headland.
"In the case of the 'Washington,' which formed the subject of the
note of the undersigned of the 25th May, 1844, to which the present
communication of Lord Aberdeen is a reply, the capture complained
of was in the waters of the Bay of Fundy: the principal portion of
the argument of the undersigned was addressed to that part of the
subject; and he is certainly under the impression that it is the point
of greatest interest in the discussions which have been hitherto car-
ried on between the two governments, in reference to the United
States' right of fishery on the Anglo-American coasts.
"In the case, however, of the 'Argus,' which was treated in the
note of the undersigned of the 9th of October, the capture was in the
waters which wash the northeastern coast of Cape Breton, a portion of
the Atlantic ocean intercepted indeed between a straight line drawn
from Cape North to the northern head of Cow bay, but possessing
none of the characters of a bay, (far less so than the Bay of Fundy,)
and not called a 'bay' on any map which the undersigned has seen.
The aforesaid line is a degree of latitude in length; and as far as
reliance can be placed on the only maps (English ones) hi the pos-
session of the undersigned on which this coast is distinctly laid down,
it would exclude vessels from fishing grounds which might be thirty
miles from the shore.
"Lord Aberdeen, in his note of the 10th instant, on the case of the
'Argus,' observes that, 'as the point of the construction of the con-
vention of 1818, in reference to the right of fishing in the Anglo-
American dependencies by citizens of the United States, is treated in
another note of the undersigned of this date, relative to the case of
the 'Washington/ the undersigned abstains from again touching on
that subject.'
"This expression taken by itself, would seem to authorize the ex-
pectation that the waters where these two vessels respectively were
captured would be held subject to the same principles, whether of
1236 MISCELLANEOUS.
restriction or relaxation, as indeed all the considerations which occur
to the undersigned as having probably led her Majesty's government
to the relaxation in reference to the Bay of Fundy exist in full and
even superior force in reference to the waters on the northeastern
coast or Cape Breton, where the 'Argus' was seized. But if her
Majesty's provincial authorities are permitted to regard as a 'bay,'
any portion of the sea which can be cut off by a direct line connecting
two points of the coast, however destitute in other respects of the
character usually implied by that name, not only will the waters on
the northeastern coast of Cape Breton, but on many other parts of the
shores of the Anglo- American dependencies, where such exclusion has
not yet been thought of, be prohibited to American fishermen. In
fact, the waters which wash the entire southeastern coast of Nova
Scotia, from Cape Sable to Cape Canso, a distance on a straight line
of rather less than three hundred miles, would in this way constitute
a bay, from which United States fishermen would be excluded.
"The undersigned, however, forbears to dwell on this subject, being
far from certain, on a comparison of all that is said in the two notes
of Lord Aberdeen of the 10th instant, as to the relaxation proposed by
her Majesty's government, that it is not intended to embrace the
waters of the northeastern coasts of Cape Breton, as well as the Bay
of Fundy.
"Lord Aberdeen, towards the close of the note in which the purpose
of her Majesty's government is communicated, invites the attention
of the undersigned to the fact that British colonial fish is, at the
present time, excluded by prohibitory duties from the markets of the
United States, and suggests that the moment at which the British
government are making a liberal concession to United States trade,
might be deemed favorable for a counter concession on the part of the
United States to British trade, by the reduction of duties which oper-
ate so prejudicially to the interests of British colonial fishermen.
"The undersigned is of course without instructions which enable him
to make any definite reply to this suggestion. It is no doubt true that
the British colonial fish, as far as duties are concerned, enters the
United States market, if at all, to some disadvantage. The government
of the United States, he is persuaded, would gladly make any reduction
in these duties which would not seriously injure the native fishermen;
but Lord Aberdeen is aware that the encouragement of this class of
the seafaring community has ever been considered, as well in the
United States as Great Britain, as resting on peculiar grounds of expe-
diency. It is the great school not only of the commercial but of the
public marine, and the highest considerations of national policy
require it to be fostered.
"The British colonial fishermen possess considerable advantages
over those of the United States. The remoter fisheries of Newfound-
land and Labrador are considerably more accessible to the colonial
than to the United States fishermen. The fishing grounds on the
coasts of New Brunswick and Nova Scotia, abounding in cod, mack-
erel and herring, lie at the doors of the former; he is therefore able to
pursue his avocation in a smaller class of vessels, and requires a
smaller outfit; he is able to use the net and the seine to great advan-
tage in the small bays and inlets along the coast, from which the fisher-
men of the United States, under any construction of the treaty, are
excluded. All, or nearly all the materials of ship-building, timber,
MISCELLANEOUS. 1237
iron, cordage and canvas, are cheaper in the colonies than in the
United States, as are salt, hooks and lines. There is also great advan-
tage enjoyed in the former in reference to the supply of bait and
curing the fish. These, and other causes, have enabled the colonial
fishermen to drive those of the United States out of many foreign
markets, and might do so at home but for the protection afforded by
the duties.
"It may be added that the highest duty on the kinds of fish that
would be sent to the American market is less than a half-penny per
pound, which cannot do more than counterbalance the numerous
advantages possessed by the colonial fishermen.
"The undersigned supposes, though he has no particular informa-
tion to that effect, that equal or higher duties exist in the colonies on
the importation of fish from the United States.
"The undersigned requests the Earl of Aberdeen to accept the
assurance of his high consideration."
At the date of these letters, Mr. Everett seems to have believed that
" the negotiation was in the most favorable state for a full and satis-
factory adjustment" of every question in dispute. This is evident
from his despatch of April 23<i, 1845, to Mr. Buchanan, who had suc-
ceeded Mr. Calhoun as Secretary of State, and from other sources
which are equally authentic. The opening of the Bay of Fundy, con-
sidered in itself alone, "though nominally confirming the interpreta-
tion of the treaty which the colonial authorities had set up, was," in
fact, " a practical abandonment of it;" and we have the highest assur-
ance that the British government "contemplated the further exten-
sion of the same policy by the adoption of a general regulation that
American fishermen should be allowed freely to enter all bays of which
the mouths were more than six miles wide. This intention was com-
municated to Lord Falkland by Lord Stanley in a despatch of May 19,
1845. The former, in his reply, dated June 17, requested that, as the
plan had reference to matters deeply affecting the interests of Xova
Scotia, and involved so many considerations to the elucidation of
which local knowledge and information were essentially necessary, the
negotiation might be suspended until he should have an opportunity
of addressing the colonial secretary again. In a second despatch,
written on the 2d of July, Lord Falkland observed that in previous
communications he had very fully explained the reasons why he should
deeply lament any relaxation of the construction of the treaty which
would admit of the American fishing vessels carrying on their opera-
tions within three miles of a line drawn from headland to headland of
the various bays on the coast of Nova Scotia, and that he did not then
retract the opinions he had expressed on these occasions. He said,
further, that, as much technical knowledge and verbal accuracy were
required in treating the subject, he had directed the attorney general
of the colony to prepare a report, which lie enclosed, and to which he
desired Lord Stanley's particular attention; and he remarked, in con-
clusion, that "he was convinced such relaxation of the treaty of ISIS.
as was apparently contemplated by Lord Aberdeen, would, if carried
into effect, produce very deep-rooted dissatisfaction both in his own
colony and m New Brunswick, and cause much injury to a very large
and valuable class of her Majesty's subjects." A copv of the report
of the Hon. J. AY. Johnston, referred to by Lord Falkland, follows.
American readers will fail to find the "technical knowledge and verbal
1238 MISCELLANEOUS.
accuracy" indicated by his lordship; while, if they will turn to the
arguments of Mr. Everett, to which it replies, they will also find that
the positions of our minister are neither fairly met nor essentially
weakened. It may be admitted that some points are stated with
force and with fairness. But this document adds nothing to the
reputation of the attorney general, who is justly considered to be an
able man; for it is deficient in learning, upon the matters in contro-
versy, deficient in "accuracy," in the statements of facts relative to
the course and character of our fishermen, and in its tone and spirit
hardly more to be admired than the common accounts of "American
aggressions" which appear in the colonial newspapers.
Under date of June 16, 1845, Mr. Johnston savs:
"My LORD: Agreeably to your excellency's desire, I have the honor
to report such suggestions as appear to arise from the despatch of the
Right Hon. the Secretary of otate for the colonies, dated 10th May
last, and the correspondence accompanying it of the United States
minister at London and her Majesty s government, on the subject of
the fisheries on the coasts of her Majesty's North American provinces.
"The concession of a right to fish hi the Bay of Fundy has been fol-
lowed by the anticipated consequence, the demand for more extended
surrenders, based upon what has been already gained; and it is to be
feared that the relaxations now contemplated, if carried into effect,
will practically amount to an unrestricted license to American fisher-
men.
"When their right to fish within the larger bays, or at the mouths of
the smaller inlets, shall be established, the ease with which they may
run into the shores — whether to fish, or for obtaining bait, or for draw-
ing off the shoals of fish, or for smuggling — and the facility of escape
before detection, notwithstanding every guard which it is within the
means of the province to employ, will render yerj^ difficult the attempt
to prevent violations of the remaining restrictions, while, in the case of
seizures, the means of evasion and excuse, which experience has shown
to be, under any circumstances, abundantly ready, will be much
enlarged.
"An instance has just occurred which illustrates this apprehension,
and confirms the observations to the same effect contained in the
report I had the honor to make to your excellency on the 17th Sep-
tember last, on the same subject.
"An American fisherman, on the 5th of this month, was seized in
the Bay of Fundy, at anchor 'inside of the light-house at the entrance
of Digby Gut/ about a quarter of a mile from the shore, his nets lying
on the deck, still wet, and with the scales of herrings attached to the
meshes, and having fresh herrings on board his vessel. The excuse
sworn to is, that rough weather had made a harbor necessary; that the
nets were wet from being recently washed; but that the fish were
caught while the vessel was beyond three miles from the shore.
"Hence, too, will be extended and aggravated all the mischiefs to
pur fisheries from the means used by the Americans in fishing, as by
jigging — drawing seines across the mouths of the rivers — and other
expedients; from the practice of drawing the shoals from the shores,
by baiting; and, above all, from their still more pernicious habit of
throwing the garbage upon the fishing-grounds and along the shores.
"Every facility afforded the American fisherman to hold frequent,
easy, and comparatively safe intercourse with the shores, extends
MISCELLANEOUS. 1239
another evil, perhaps more serious in its results — the illicit traffic
carried on under the cover of fishing — in which not only the revenue is
defrauded, and the fair dealer discountenanced, but the coasts and re-
mote harbors are rilled with noxious and useless articles, as the
poisonous rum and gin and manufactured teas, of which already too
much is introduced into the country, in exchange for the money and
fish of the settlers; and from this intercourse, when habitual and es-
tablished from year to year, the moral and political sentiments of our
population cannot but sustain injury.
In the argument of the American minister his excellency appears
to assume that the question turns on the force of the word 'bay,' and
the peculiar expression of the treaty in connexion with that word;
but although it was obviously the clear intention of its framers to
keep the American fishermen at a distance of three marine miles from
the 'bays, creeks, and harbors,' there does not, therefore, arise any just
reason to exclude the word coasts, used in the same connexion in the
treaty, from its legitimate force and meaning; and if it be an admitted
rule of general law that the outline of a coast is to be defined, not by
its indentations, but by a line extending from its principal headlands,
then waters, although not known under the designation, nor having
the general form of a bay, may yet be within the exclusion designed
by the treaty.
"His excellency the American minister complains of the 'essential
injustice' of the law of this province under which the fisheries are
attempted to be guarded, and is pleased to declare that it 'possesses
none of the qualities of the law of civilized states but its forms.
"His excellency, in using this language, possibly supposed that the
colonial act had attempted to give a construction to the treaty of 1818,
or had originated the penalty and mode of confiscation which he
deprecates. But had his excellency examined the act of the province
he has so strongly stigmatized, he would have discovered that, as re-
gards the limits within which foreign fishermen are restricted from
fishing, the colonial legislature has used but the words of the treaty
itself, and a comparison of the provincial act with an act of the impe-
rial Parliament, the 59 George III, ch. 38, would have shown him that,
as regards the description of the offence, the confiscation of the vessel
and cargo, and the mode of proceeding, the legislature of Nova Scotia
has, in effect, only declared what was already, and still is, the law of
the realm under imperial enactments.
"Mr. Everett adverts to what he considers 'the extremely objectionable
character of the course pursued by the provincial authorities in presuming
to decide for themselves a question under discussion between the two
governments.'
"But it is submitted, that if the American government controverted
the construction given to the treaty, the course pursued on the part of
Nova Scotia, which made confiscation dependent on a judicial trial and
decision, was neither presumptuous nor inexpedient; nor could the
necessity of security for £60, or the risk of costs, in case of failure,
offer any serious impediment to the defence in a matter which, as Mr.
Everett declares, the government of the United States deems of great
national importance.
"Upon the other hand, if the American fishermen could only seek a
relaxation of the construction given to the treaty in England and
Nova Scotia, as a matter of favor, 'presumption' would rather seem to
1940 MISCELLAlTEOtrS.
lie on that side which insisted on enjoying the privilege before the
boon was conferred.
"In any view of the matter, as the American fisherman was never
meddled with until he had voluntarily passed the controverted limit, it
is difficult to comprehend why the American minister's proposition
would not stand reversed with more propriety than it exhibits in its
present form; for his excellency's regret might not unreasonably, it
would seem, have been expressed at 'the extremely objectionable course
pursued by American subjects in presuming to decide for themselves a
question under discussion between the two governments,' by fishing upon
the disputed grounds, and thereby reducing the provincial authorities
to the necessity of vindicating their claim or seeing it trampled on,
before any sanction had been obtained, either of legal decision or
diplomatic arrangement.
"When Mr. Everett says that the necessity of fostering the interests
of their fishermen rests on the highest ground of national policy, he ex-
presses the sentiment felt in Nova Scotia as regards the provincial wel-
fare in connexion with this subject. The Americans are fortunate in
seeing the principle carried into practice; for the encouragement af-
forded their fishermen by the government of the United States is not
small, and its strenuous, persevering, and successful efforts to extend
their fishing privileges on her Majesty's coasts but too practically
evince its desire and ability to promote this element of national and
individual prosperity. As far as I can learn, a liberal tonnage bounty
is given on their fishing craft, besides a bounty per barrel on the
pickled fish — thus guarding the fisherman against serious loss, in case
of the failure of his voyage; and he is, I believe, further favored by
privileges allowed on the importation of salt and other articles, while
a market is secured him at home which insures a profitable reward for
the fruit of his labor by a protecting duty of five shillings per quintal
on dry fish, equal to fifty per cent, of its value, and from one to two
dollars per barrel on pickled fish, according to the different kinds,
equal to at least twenty per cent, of their values.
' 'The duty on American fish imported into the colonies is much less,
and the British colonial fisherman is unsustained by bounties; but
the chief drawback to his success is the want of certain and staple
markets, those on which he is principally dependent being very lim-
ited and fluctuating.
"In the contrast, therefore, drawn by Mr. Everett, between the
advantages of the colonial and American fisherman, the extensive
home-markets of the latter, independently of the encouragement he
receives from bounties and other sources, much more than compen-
sates, I believe, for any local conveniences enjoyed by the former.
"The colonists cannot understand the principle on which concession,
in any form, should be granted to the American people in a case
avowedly ' touching the highest grounds of national policy,' even
although concession did not involve consequences, as it unhappily
does in the present case, both immediate and remote, most injurious
to colonial interests.
"The strong and emphatic language of the treaty of 1818 is, that
the United States ' renounce forever any liberty heretofore enjoyed or
claimed by the inhabitants thereof to take, dry, or cure fish on, or
within three marine miles of, any of the coasts, bays, creeks, or har-
bors of his Britannic Majesty's dominions in America not included
MISCELLANEOUS. 1241
within the above-mentioned limits: provided, however, that the
American fishermen shall be admitted to enter such bavs and harbors
for the purpose of shelter and of repairing damages therein, of pur-
chasing wood and of obtaining water and for no other purpose what-
ever. But they shall be under such restrictions as may be necessary
to prevent their taking, drying, or curing fish therein, or in any other
manner whatever abusing the privileges hereby reserved to them.'
"If this national contract does not exclude the Americans from
fishing within the indentations of our coasts and from our lays and
harbors, the people of Nova Scotia, while it remained in force, could
not complain of the exercise of the right.
"But we believe the treaty does exclude them, and we but ask a
judicial inquiry and determination before these valuable privileges are
relinquished: the highest law opinions in England have justified our
belief — her Majesty's government, in theory, avows and maintains it.
' 'The compact, too, was in its nature reciprocal; and had the treaty,
in this particular, been (as it was not) hard upon the United States,
there may doubtless be found, in other parts of it, stipulations at least
equally unfriendly to British interests.
' 'I repeat, my lord, we cannot understand why the Americans should
not be held to their bargain; nor can we perceive the principle of justice
or prudence which would relax its terms in favor of a foreign people
whose means and 'advantages already preponderate so greatly, and
that, too, without reciprocal concessions, and at the expense of her
Majesty's colonial subjects, whose prosperity is deeply involved in
the protection and enlargement of this important element of their
welfare.
' 'If the present concessions to the United States are hoped to end
and quiet the controversy between their fishermen and this province,
there is too much reason to fear the expectation will end in disappoint-
ment. From the greater encouragement that will be given for viola-
tion of the treaty, under the modified conditions suggested to be im-
posed on the American fishermen, and from the multiplied facilities
for evasion and falsehood, increased and not diminished occasions of
collision can only be expected; and it may safely be asserted, from a
knowledge of the subject and of the parties, that, unless the British
government are content to maintain the strict construction of the
treaty, as a mere question of past contract and settled right, whatever
that construction may be, the encroachment of the American fisher-
men will not cease, nor disputes end, until they have acquired unre-
stricted license over the whole shores of Nova Scotia.
"It is hoped, my lord, that if an arrangement such as is contem-
plated should unhappily be made, its terms may clearly express that
the American fishermen are to be excluded from fishing within three
miles of the entrance of the bays, creeks, and inlets, into which they are
not to be permitted to come.
"Some doubt on this point rests on the language of Lord Stanley's
despatch, and the making the criterion of the restricted bays, creeks,
and inlets to be the width of the double of three marine miles, would
strengthen the doubt by raising a presumption that the shores of
these bays, &c., and the shores of the general coast, were to be con-
sidered in the same light and treated on the same footing.
' 'To avoid such a construction, no less than to abridge the threat-
ened evil, the suggestion made to your lordship by Mr. Stewart that at
1242 MISCELLANEOUS.
least this width should be more than the double of three marine miles —
say three or four times more — ought, I think, to be strongly enforced.
' 'I have the honor to be, your lordship's most obedient servant,
"J. W. JOHNSTON.
"To the Right Hon. His Excellency
"VISCOUNT FALKLAND, Lieut. Governor, &c., &c., cfcc."
Meantime New Brunswick was as active to prevent the measures
under consideration of the British ministry as her sister colony of Nova
Scotia. The Hon. Charles Simonds, speaker of the House of Assembly,
and a gentleman of great wealth and of high consideration in colo-
nial circles, was deputed by the council of the first named possession
of the crown to attend to its interests, and to remonstrate against
further "concessions." On his arrival in England he met the Hon.
George R. Young, a distinguished personage of Nova Scotia, who was
anxious to join him in behalf of his own colony. The Gaspe Fishing
and Mining Company selected an agent to act with them, and the
three gentlemen waited upon a member of the Board of Trade, to
whom they communicated their views of the case.
Interviews with several other functionaries followed; and, finally,
they met Lord Stanley, the secretary for the colonies, to whom Mr.
Simonds, as the only one who was officially authorized to address his
lordship, made "a strong representation" of the injurious conse-
quences certainly to result to her Majesty's American subjects, were
the negotiations with Mr. Everett to be concluded on the basis pro-
posed. The secretary assured him, in reply, that "nothing should be
done to injure the colonies;" and Mr. Simonds, after his return to New
Brunswick, stated his entire confidence in the effect of his "repre-
sentations" to change the designs entertained by the ministry.
The liberal policy towards the United States, known to have had the
positive sanction of the first minister of the crown, (the late Sir Robert
reel,) wrhich was designed to remove all reasonable complaints on our
part, was abandoned. It was defeated by the means here stated, and
by memorials to the Queen, from merchants and others in New Bruns-
wick and Nova Scotia, which wre need not specially mention. Tidings
of success soon reached the gratified colonists. On the 17th of Sep-
tember, 1845, Lord Stanley thus wTote to Lord Falkland:
"Her Majesty's government have attentively considered the repre-
sentations contained in your despatches Nos. 324 and 331, of the 17th
of June and 2d of July, respecting the policy of granting permission
to the fisheries of the United States to fish in the Bay of Chaleurs, and
other large bays of a similar character on the coasts of New Brunswick
and Nova Scotia; and apprehending from your statements that any
such general concession would be injurious to the interests of the
British North American provinces, we have abandoned the intention
we had entertained on the subject, and shall adhere to the strict letter
of the treaties which exist between Great Britain and the United
States relative to the fisheries of North America, except in so far as
they may relate to the Bay of Fundy, which has been thrown open to
the North Americans under certain restrictions.
" In announcing this decision to you, I must, at the same tune, direct
your attention to the absolute necessity of a scrupulous observance of
those treaties on the part of the colonial authorities, and to the danger
which cannot fail to arise from any overstrained assumption of the
MISCELLANEOUS. 1243
power of excluding the fishermen of the United States from the waters
in which they have a right to follow their pursuits."
It is possible that, had our government seconded the efforts of our
minister at the Court of St. James, and had instructed him, in positive
and earnest terms, that the pretensions and claims of the colonists,
which were at last adopted by the British government, had not been,
and never would be, admitted as a just and proper commentary on the
convention of 1818, the despatch from which the preceding extract is
made would never have been written; and that of consequence the
excitement and difficulties of 1852 \\ould never have occurred. As it
was, the children of the "tories" triumphed over the children of the
"whigs" of the Revolution.
The events of 1846, and of the three succeeding years, will not detain
us but a moment. The seizure and total loss of several American
vessels, and the renewed efforts of the Nova Scotia House of Assembly
to close the Strait of Canso, for reasons stated in three annual reports
of committees of that body, are the most important, and all which
we need notice.
As we open upon the occurrences of 1851 we are met with & fourth
report on the very humane and favorite plan of closing Canso, which,
for reasons presently to appear, should be preserved in these pages.
"The committee appointed to consider the question of the naviga-
tion by foreign vessels of the Gut of Canso, beg leave to report as fol-
lows :
"The question submitted to your committee involves the considera-
tion, first, of the right of the legislature of this province to impose
restrictions or obstructions upon foreign vessels wishing the use of the
passage; and secondly, the policy of imposing any, and what, restric-
tions or obstructions. Your committee, in the consideration of the
first point, are aided materially by the action of a committee of this
house in the year 1842, who prepared a series of questions which were
submitted by Lord Falkland to the colonial secretary, and by him to
the law officers of the crown in England, upon the general subject of
the rights of fishery as reserved to this country by the treaty with the
United States in the year 1818, and also respecting the navigation of
the Gut of Canso. As the consideration of your committee has been
solely directed to the latter point, it is unnecessary to advert to the
issues raised upon the other points. The investigation is, therefore,
confined to the fourth question submitted — that is to say, Have vessels
of the United States of America, fitted out for the fishery, a right to
pass through the Gut or Strait of Canso, which they cannot do with-
out coming within the prescribed limits, or to anchor there or to fish
there; and is casting bait to lure fish hi the track of the vessel, fishing
within the meaning of the convention?
"This question, with the others, was suggested bv the consideration
of a remonstrance from Mr. Stevenson, then Uniteu States minister in
England, dated 27th of March, 1841, addressed to Lord Palmerston,
then and now Foreign Secretary, against the seizure of fishing vessels
belonging to citizens of the United States for alleged breaches of the
terms of the convention of 1818, a copy of which was forwarded to
Lord Falkland, then lieutenant-governor of this province, and submit-
ted by him to the legislature of 1842. This note contains the following
observations in respect to the navigation of the Gut of Canso: 'It may
be proper, also, on this occasion to bring to the notice of her Majestyrs
1244 MISCELLANEOUS.
government the assertion of the provincial legislature, that "the Gut
or Strait of Canso is a narrow strip of water, completely within and
dividing several counties of the province," and that the use of it by the
vessels and citizens of the United States is in violation'pf the treaty of
1818. This strait separates Nova Scotia from the island of Cape
Breton, which was not annexed to the province until the year 1820.
Prior to that, in 1818, Cape Breton was enjoying a government of its
own, distinct from Nova Scotia, the strait forming the line demarca-
tion between them; and being then, as now, a thoroughfare for vessels
passing into and out of the Gulf of St. Lawrence. The union of the
two colonies cannot, therefore, be admitted as vesting in the province
the right to close a passage which has been freely and indisputably
used by the citizens of the United States since the year 1783. It is
impossible, moreover, to conceive how the use on the part of the
United States of the right of passage, common, it is believed, to all
nations, can in any manner conflict with the letter or spirit of the
existing treaty stipulations.'
"The questions having been previously forwarded by Lord Falkland
to Lord John Russell, Lord Falkland, on the 8th of May, 1841, ad-
dressed to Lord John Russell a very able despatch on the general sub-
ject of the fisheries, in which previous provincial legislation was satis-
factorily vindicated from charges made by Mr. Stevenson for the seiz-
ure, improperly, of American fishing vessels; and clearly showed that
the provincial legislation was founded upon and sustained by previous
imperial acts upon the same subject; and which despatch most com-
pletely silenced any further complaints of a like nature. This des-
patch also refers to the navigation of the Gut of Canso, upon which
Lord Falkland therein remarks, in answer to Mr. Stevenson, 'Her
Majesty's exclusive property and dominion in the Strait of Canso is
deemed maintainable upon the principles of international law already
referred to, and which it is considered will equally apply, whether the
shore on each side form part of the same province, or of clifferent prov-
inces belonging to her Majesty. This strait is verv narrow, not exceed-
ing, in some parts, one mile in breadth, as may Toe seen on the admi-
ralty chart; and its navigation is not necessary for communication
with the space beyond, which may be reached by going round the
island of Cape Breton.'
"Lord Falkland again says: 'I have now, I trust, established, that
if the interpretation put upon the treaty by the inhabitants of Nova
Scotia is an incorrect one, they are sincere in their belief of the justice
and interpretation, and most anxious to have it tested by capable
authorities; and further, that if the laws passed by the provincial leg-
islature are really of the oppressive nature they are asserted to be by
Mr. Stevenson, they were enacted in the belief that the framers of
them were doing nothing more than carrying out the views of the
home government as to the mode in which the colonists should protect
their own dearest interests. I enclose a copy of the proclamation con-
taining the act of the 6th William IV, of which Mr. Stevenson com-
plains; and any alteration in its provisions, should such be deemed
necessary, may be made early in the next session of the provincial
Parliament.'
"The opinion of the Queen's advocate and her Majesty's attorney
general on the case drawn up by Lord Falkland, and upon the ques-
tions submitted by the committee, was enclosed by Lord Stanley to
MISCELLANEOUS. 1245
Lord Falkland, accompanied by a despatch dated the 28th of Novem-
ber, 1842. The opinion of the law officers of the crown, sustained as it
was by the British government, upon the point now under discussion,
is as follows: 'By the convention of 1818, it is agreed that American
citizens should have the liberty of fishing in the Gulf of St. Lawrence,
and within certain defined limits, in common with British subjects, ana
such convention does not contain any words negativing the right to
navigate the passage of the Gut of Canso, and therefore it may be
conceded that such right of navigation is not taken away by that con-
vention; but we have attentively considered the course of navigation
to the gulf by Cape Breton, and likewise the capacity and situation of
the passage of Canso, and of the British dominions on either side, and
we are of opinion that, independently of treaty, no foreign country has
the right to use or navigate the passage of Canso, and attending to the
liberty of fishery to be enjoyed by American citizens. We are also of
opinion that the convention did not, either expressly or by necessary
implication, concede any such right of using or navigating the passage
in question.'
"The opinion of the British government, resting upon that of the
law officers of the crown, is, therefore, clearly expressed to the head
of the government of this province, for his direction and guidance, and
that or the legislature. The case is decided after a full examination
of the arguments on both sides. Mr. Stevenson complains of the ex-
ercise of the right asserted by the government here to control the
'passage of Canso.' Lord Falkland submitted his views, as well as
those of the committee, in opposition to those of Mr. Stevenson; and
the decision is unequivocally against the American claim. It will be
observed that Mr. Stevenson rests his opposition to the right claimed
principally upon the fact that the island of Cape Breton was a distinct
colony at the time of the convention of 1818; and hence argues that
the province of Nova Scotia, not having then the sole right to the waters
of the Gut of Canso, could not now claim to exercise an unlimited
control. Admitting that such did not then exist, it is clear that if a
common right is enjoyed solely by two parties, their union would
give complete control; and it may be fairly contended that Nova
Scotia and Cape Breton, being now under one government, possess the
same powers united as they did before the union, as respects third
parties; and that the effect of the union only operates to prevent
antagonistic action relatively between them. The law officers of the
crown, however, take higher ground, and insist, first, that no foreign
power has any such right as that contended for by Mr. Stevenson, un-
less conveyed by treaty; and, secondly, that no such right is conferred
by the treaty of 1818 to American citizens. Having such high
authority in favor of the existing control of the navigation of the
passage in question, it might be considered as conclusively settled;
out as this exclusive right is contested on the part of the American
government, the opinion of the late Chancellor Kent, an American
jurist of the highest standing, in favor of the exercise of that right,
as given in a chapter of liis celebrated Legal Commentaries upon the
Law of Nations, is of peculiar value and importance. That distin-
guished lawyer, in the work just mentioned, treating at large upon
this subject, says:
" ' It is difficult to draw any precise or determinate conclusion amidst
the variety of opinions as to the distance to which a State may lawfully
1246 MISCELLANEOUS.
extend its exclusive dominion over the sea adjoining its territories, and
beyond those portions of the sea which are embraced by harbors, gulfs,
bays, and estuaries, and over which its jurisdiction unquestionably
extends. All that can be reasonably asserted is, that the dominion
of the sovereign of the shore over the contiguous sea extends as far as
is requisite for his safety and for some lawful end. A more extended
dominion must rest entirely upon force and maritime supremacy.
According to the current of modern authority, the general territorial
jurisdiction extends into the sea as far as cannon-shot will reach, and
no farther, and this is generally calculated to be a marine league; and
the Congress of the United States have recognised this limitation by
authorizing the district courts to take cognizance of all captures made
within a marine league of the American shores. The executive author-
ity of this country, in 1793, considered the whole of Delaware bay to
be within our territorial jurisdiction, and it rested its claim upon those
authorities which admit that gulfs, channels, and arms of the sea be-
long to the people with whose land they are encompassed. It was inti-
mated that the law of nations would justify the United States in at-
taching to their coasts an extent into the sea beyond the reach of can-
non-shot. Considering the great extent of the line of the American
coasts, we have a right to claim for fiscal and defensive regulations a
liberal extension of maritime jurisdiction; and it would not be unrea-
sonable, as I apprehend, to assume, for domestic purposes connected
with our safety and welfare, the control of the waters on our coast,
though included within lines stretching from quite distant headlands,
as, for instance, from Cape Ann to Cape Cod, and from Nantucket to
Montauk point, and from that point to the capes of the Delaware, and
from the south cape of Florida to the Mississippi. It is certain that
our government would be disposed to view with some uneasiness and
sensibility, in the case of war between other maritime powers, the use
of the waters of our coast far beyond the reach of cannon-shot as cruis-
ing ground for belligerent purposes. In 1793, our government thought
they were entitled, in reason, to as broad a margin of protected nav-
igation as any nation whatever, though at that time they did not posi-
tively insist beyond the distance of a marine league from the sea
shores; and in 1806 our government thought it would not be unreason-
able, considering the extent of the United States, the shoalness of their
coast, and the natural indication furnished by the well-defined path of
the Gulf stream, to except an immunity from belligerent warfare for
the space between that limit and the American shore.'
"From the foregoing extract it will be observed that Chancellor
Kent agrees with the principles put forth by the law officers of the
crown, and which justify the conclusion 'that no foreign power, inde-
pendently of treaty, has any right to navigate the passage of Canso.'
Haying thus, by the highest legal authorities of England and the
United States, been borne out in the assumption that no foreign power
has any such right, the next inquiry is, as to where the power of con-
trolling the passage of Canso exists. By the act of 1820, Cape Breton
was annexed to ISiova Scotia, and has since that period formed a part
of this province, which for nearly a century has enjoyed a representa-
tive form of government, and which, in making laws, is only controlled
by the operation of imperial statutes and the veto of the crown. The
right to make laws to affect navigation, except the registry of ships,
has been enjoyed and acted upon by this legislature. Various laws
MISCELLANEOUS. 1247
have also been enacted making regulations for setting nets, and in
other respects for regulating the fisheries in our bays and creeks. Stat-
utes have also been passed here, and assented to in England, for col-
lecting light duties in the Gut of Canso, and American and other for-
eign, and also British and colonial vessels, have been brought within the
operation of those statutes. The right, therefore, to legislate in re-
spect of the fisheries and in respect of the navigation of the Gut of Canso,
has not only been confirmed in England, but has been acknowledged
in America in the payment of light duties.
"The legislature of Nova Scotia may, therefore, be fairly said to
have the right to pass enactments either to restrict or obstruct the
passage of foreign vessels through the Gut of Canso.
"The second point, as to the policy of imposing/wr^Twr restriction
upon foreign vessels passing through the Gut of Canso, is yet to be
considered.
" In the consideration of that question, the treaty of 1818 affords the
best means of arriving at a sound conclusion. The American govern-
ment, by it, relinquish all right of fishery within three marine miles
of the coasts, bays, creeks, or harbors of this province; and under
the construction put upon that clause in England, upon the same
principle of international law as is acknowledged and insisted upon
by the American government, the American citizens, under the treaty,
have no right, for the purpose of fishery, to enter any part of the Bay
of St. George lying between the headlands formed by Cape George
on the one side and Port Hood island on the other. American fisher-
men, therefore, when entering that bay for fishing purposes, are clearly
violating the terms of the treaty. It may be said that the Gut of Canso
affords a more direct and easy passage to places in the Gulf of St.
Lawrence, where American fishermen would be within the terms of
the treaty; but that is no good reason why this legislature should per-
mit them to use that passage, when their doing so is attended with
almost disastrous consequences to our own fishermen. Were there
no other means of getting upon the fishing grounds, in the produce of
which they are entitled to participate, the Americans might then assert
a right of way, from necessity, through the Gut of Canso. When that
necessity does not exist, it would be unwise any longer to permit
American fishing vessels to pass through the Gut of Canso, for the fol-
lowing, among many other reasons that could be given, if necessary: In
the month of October, the net and seine fishery of mackerel in the Bay
of St. George is most important to the people of that part of the
country, and requires at the hands of the legislature every legitimate
protection. Up to this period American fishermen, using the pas-
sage of the Gut of Canso, go from it into St. George's bay, and not
only throw out bait to lure the fish from the shores where they are
usually caught by our own fishermen, but actually fish in all parts
of that bay, even within one mile of the shores. It is also a noto-
rious fact that the American fishing vessels in that bay annually
destroy the nets of the fishermen by sailing through them,
and every year in that way do injury to a great extent — and this
upon ground which they have no right to tread. Remonstrances
have therefore been made to the American government against such
conduct; but the answer has invariably been, to protect ourselves in
that respect. Had the United States government adopted suitable
measures to prevent its citizens from trespassing as before mentioned,
1248 MISCELLANEOUS.
it would not be necessary for this legislature to put any restrictions
upon their use of the passage in question; but as the onus has been
thrown upon this legislature, it is clearly its duty to adopt the most
efficient and least expensive means of protection. If the privilege of
passage is exercised through the Gut of Canso and the bay in question,
it is next to impossible to prevent encroachments and trespasses upon
our fishing grounds by American citizens, as it would require an
expensive coast-guard by night and day to effect that object, and then
only partial success would result. It would be unreasonable to tax
the people of this country to protect a right which should not be
invaded by foreigners, and which can only be invaded and encroached
upon by our permitting foreigners to use a passage to which they are
not entitled. Without, therefore, any desire unnecessarily to hamper
American citizens in the enjoyment of that to which they are justly
entitled, your committee consider it their imperative duty to recom-
mend sucn measures for the adoption of the House as will in the most
effectual way protect the true interests of this country. The outlay
necessarily required to watch properly the operations of foreign fishing
vessels in the Bay of St. George, so as to prevent encroachments,
amounts to a prohibition of its being accomplished ; and it therefore
becomes indispensable that such vessels be prohibited from passage
through the Gut of Canso. The strait will always be, to vessels of
all classes, a place of refuge in a storm, and American fishing vessels
will be entitled to the use of it as a harbor for the several purposes
mentioned in the treaty. It can be visited for all those purposes
without a passage through being permitted; and your committee
therefore recommend that an act be passed authorizing the governor,
by and with the advice of his executive council, by proclamation,
either to impose a tax upon foreign fishing vessels for such amount as
may be provided in the act, or to prohibit the use of such passage
altogether."
It is of consequence to remark, that, as far as there is evidence
before the public, the fisheries were not once mentioned by Mr.
McLane, (who succeeded Mr. Everett,) in his correspondence with
the British government, during his mission. Nothing, in fact, seems
to have passed between the two cabinets relative to the subject for
more than six years, though England retraced no step after opening
the Bay of Fundy. Our public documents do show, however, that,
between the years 1847 and 1851, overtures were made to our gov-
ernment for a free interchange of all natural productions" of the
United States and of the British American colonies with each other,
either by treaty stipulations or by legislation. In the first-mentioned
year, Canada passed an act embracing this object, which was to
become operative whenever the United States should adopt a similar
measure. A bill to meet the act of Canada was introduced into Con-
gress, and pressed by its friends, for three successive sessions, but
failed to become a law. That the people of Canada were "disap-
pointed," is a fact officially communicated to Mr. Webster, Secretary
of State, by Sir Henry Bulwer, the British minister. It is not impos-
sible that the existence of this feeling will sufficiently explain why the
Canadian government became a party to the following agreement,
which was signed at Toronto, on the 21st of June, 1851, at a meeting
MISCELLANEOUS. 1249
of colonial delegates, by the president of the executive council of
Canada and the Hon. Joseph Howe,* secretary of Nova Scotia:
"Mr. Howe having called the attention of his excellency and the
council to the importance and value of the gulf fisheries, upon which
foreigners largely trespass, in violation of treaty stipulations, and Mr.
Chandler having submitted a report of a select committee of the House
of Assembly of New Brunswick, having reference to the same subject,
the government of Canada determines to co-operate with Nova Scotia
in the efficient protection of the fisheries, by providing either a
steamer or two or more sailing vessels to cruise in the Gulf of St. Law-
rence and along the coasts of Labrador.
"It is understood that Nova Scotia will continue to employ at least
two vessels in the same service, and that Mr. Chandler will urge upon
the government of New Brunswick the importance of making pro-
vision for at least one vessel to be employed for the protection of the
fisheries in the Bay of Fundy."
Canadian fishermen are by no means numerous ; and the zeal thus
manifested to aid Nova Scotia in preventing the "violation of treaty
stipulations" could hardly have been awakened by the misdeeds of
"foreigners" on the fishing grounds of the "gulf." The motive is to
be sought elsewhere. Just three days after the date of the above
agreement, the British minister f addressed a note to Mr. Webster, in
which the previous propositions on the subject of reciprocal trade
between the United States and the British colonies are discussed at
some length, and the overture for an arrangement is renewed. He
enclosed an official communication from Lord Elgin, the governor
general, and other papers, which gave details of the plan as then enter-
tained. This plan embraced no concessions with regard to "the fish-
eries in estuaries and in the mouths of rivers," and suggested no
changes on the coast or banks of Newfoundland; but, on condition
that the United States would admit "all fish, either cured or fresh,
imported from the British North American possessions in vessels of
any nation or description, free of duty, and upon terms, in all respects,
of equality with fish imported by citizens or the United States," her
Majesty's government were prepared "to throw open to the fisher-
men of the United States the fisheries in the waters of the British
North American colonies, with permission to those fishermen to land
on the coasts of those colonies for the purpose of dr}Ting their nets and
curing their fish, provided that, in so doing, they do not interfere with
* This gentleman is of loyalist descent. John Howe, his father, was a citizen of Bos-
ton, and published there the "Massachusetts Gazette and Boston News Letter," a
paper which, in the revolutionary controversy, took the eide of the crown. At the
evacuation of that town by the royal army, he accompanied it to Halifax, where he
resumed business, became king's printer, and died at a good old age in 1835. His son,
mentioned in the text, was educated a printer, and conducted a newspaper for several
years. As the acknowledged leader of the "liberals "of Nova Scotia, he possessed great
influence; but as a member of Lord Falkland's coalition cabinet, lost popularity with
his party. His letters to Lord John Russell, in 1846, evince great ability, but contain
demands on the home government which are irreconcilable with colonial dependence.
These papers show that the Hon. Secretary is somewhat familiar with the writings of
the "rebel*'' of his father's time, and that what was treason then, and with tfiem, is
entirely right notr, and with the descendants of their opponents.
•j- Documents accompanying President's message, December, 1851, part I, pp. 89, 90.
i)2909°— S. Doc. 870, 61-3, vol 3 40
1250 MISCELLANEOUS.
the owners of private property or with the operations of British fisher-
men."
Her Majesty's minister desired Mr. Webster to inform him whether
our government was disposed to enter upon negotiations and conclude
a convention, on the terms suggested, or whether, preferring legisla-
tion, an urgent recommendation would be made to Congress, at the
earliest opportunity. The President declined to negotiate ; but in his
annual message, December, 1851, he said: "Your attention is again
invited to the question of reciprocal trade between the United States
and Canada and other British possessions near our frontier. Over-
tures for a convention upon this subject have been received from her
Britannic Majesty's minister plenipotentiary, but it seems to be in
many respects preferable that the matter should be regulated by recip-
rocal legislation. Documents are laid before you, showing the terms
which the British government is willing to offer, and the measures
which it may adopt, if some arrangement upon this subject shall not be
made"
Months passed away; "Congress did nothing, said nothing, thought
nothing on the subject/'* and the parties to the Toronto agreement
became impatient. In March, 1852, the committee on the fisheries of
Nova Scotia, in a report to the House of Assembly, unanimously rec-
ommended a sufficient sum to be placed at the disposal of the execu-
tive of the colony, to employ four fast-sailing vessels during the fishing
season, with authority to seize all foreign vessels found employed
within the prescribed limits; and they recommended, also, the adop-
tion of measures to enlist the aid of the home government, and secure
the co-operation of naval steam- vessels. This plan was substantially
executed by the Assembly. The government of Canada promptly
followed, and a vessel to cruise in the Gulf of St. Lawrence was ready
for sea early in May. New Brunswick was tardy, but the authorities
of that colony were reminded of their duty by the newspaper press,
and finally fitted out two vessels. Prince Edward Island furnished
one vessel, and Newfoundland, though not included in the arrange-
ments at Toronto, joined the movement. In June, the colonists re-
ceived assurances from Sir John Packington, the secretary for the colo-
nies, that "among the many pressing subjects which have engaged the
attention of her Majesty's ministers since their assumption of office,
few have been more important, in their estimation, than the ques-
tions relating to the protection solicited for the fisheries on the coasts
of British North America;" and that "her Majesty's ministers are
desirous to remove all grounds of complaint on the part of the colo-
nies, in consequence of the encroachments of the fishing vessels of the
United States upon those waters, from which they are excluded by
the terms of the convention of 1818; and they therefore intend to
despatch, as soon as possible, a small naval force of steamers, or other
small vessels, to enforce the observance of that convention."
The controversy was now rapidly approaching a crisis. As was
subsequently said by a distinguished statesman,! "this whole matter
is to be explained as a stroke of policy. It may be a dangerous step
to be taken by the British government, and the colonies may be
* Speech of Hon. W. H. Seward in the Senate of the United States, August 14, 1852.
tHon. John Davis, of Massachusetts — speech in the Senate United States, August,
1852.
MISCELLANEOUS. 1251
playing a game which will not advance materially the interests they
nave in view."
On the 5th of July, Mr. Crampton, the successor of Sir Henry Bul-
wer, announced to the President, in a note addressed to the Secretary
of State, that he had "been directed by her Majesty's government to
bring to the knowledge of the government of the United States a meas-
ure which has been adopted by her Majesty's government to prevent
a repetition of the complaints which have so frequently been made of
the encroachments of vessels belonging to citizens of the United States
and of France, upon the fishing-grounds reserved to Great Britain by
the convention of 1818.
"Urgent representations have been addressed to her Majesty's gov-
ernment by the governors of the British North American provinces, in
regard to these encroachments, whereby the colonial fisheries are most
seriously prejudiced, directions have been given by the lords of her
Majesty's admiralty for stationing off New Brunswick, Nova Scotia,
Prince Edward Island, and the Gulf of St. Lawrence, such a force of
small sailing vessels and steamers as shall be deemed sufficient to pre-
vent the infraction of the treaty. It is the command of the Queen,
that the officers employed upon this service should be especially en-
joined to avoid all interference with the vessels of friendly powers,
except where they are in the act of violating the treaty, and on all occa-
sions to avoid giving ground of complaint by the adoption of harsh or
unnecessary proceedings, when circumstances compel their arrest or
seizure."
Mr. Webster, in a paper dated at the Department of State, on the
following day, and published in the Boston Courier of the 19th of July,
after citing various documents which refer to the policy of the admin-
istration of Lord John Russell, and to that of his successor, the Earl of
Derby, touching the colonial fisheries, quotes from another document,
that "The vessels-of-war mentioned in the above circular despatches
are expected to be upon the coasts of British North America during
the present month, (July) when, no doubt, seizures will begin to be
made of American fishing vessels, which in the autumn pursue their
business in indents of the coast, from which it is contended they are
excluded by the convention of 1818.
"Meantime, and within the last ten days, an American fishing ves-
sel called the 'Coral/ belonging to Machias, in Maine, has been seized
in the Bay of Fundy, near Grand Menan, by the officer commanding
her Majesty's cutter 'Netley,' already arrived in that bay, for an
alleged infraction of the fishing convention; and the fishing vessel has
been carried to the port of St. John, New Brunswick, where proceed-
ings have been taken in the admiralty court, with a view to her con-
demnation and absolute forfeiture.
"Besides the small naval force to be sent out by the imperial gov-
ernment, the colonies are bestirring themselves also for the protection
of their fisheries. Canada has fitted out an armed vessel, to be sta-
tioned in the gulf: and this vessel has proceeded to the fishing-grounds,
having on board not only a naval commander and crew, with power to
seize vessels within limits, but also a stipendiary magistrate and civil
police, to make prisoners of all who are found transgressing the laws of
Canada, in order to their being committed to jail, in that colony for
trial.
1252 MISCELLANEOUS.
"The colony of Newfoundland has fitted out an armed vessel for the
purpose of resisting the encroachments of French fishing vessels on the
coast of Labrador; but when ready to sail from her port, the governor
of that colony, acting under imperial instructions, refused to give the
commander of this colonial vessel the necessary authority for making
prize of French vessels found trespassing. This is an extraordinary
circumstance, especially when taken in connexion with the fact that
the like authority to seize American fishing vessels, under similar cir-
cumstances, has never been refused to the cruisers of any of the North
American colonies.
"The colony of Nova Scotia has now four armed cruisers, well
manned, on its coasts, ready to pounce upon any American vessels
who may, accidentally or otherwise, be found fishing within the limits
defined by the crown officers of England.
"New Brunswick has agreed with Canada and Nova Scotia to place
a cutter in the Bay of Fundy to look after American fishermen there;
and at Prince Edward Island, her Majesty's steam-frigate 'Devasta-
tion' has been placed, under the instructions of the governor of that
colony."
Mr. Webster then recites the first article of the convention of 1818,
and concludes in the following terms:
"It would appear that by a strict and rigid construction of this
article, fishing vessels of the United States are precluded from entering
into the bays or harbors of the British provinces, except for the pur-
poses of shelter, repairing damages, and obtaining wood and water.
A bay, as is usually understood, is an arm or recess of the sea, entering
from the ocean between capes or headlands; and the term is applied
equally to small and large tracts of water thus situated. It is common
to speak of Hudson's Bay, or the Bay of Biscay, althougli they are very
large tracts of water.
"The British authorities insist that England has a right to draw a
line from headland to headland, and to capture all American fisher-
men who may follow their pursuits inside of that line. It was undoubt-
edly an oversight in the convention of 1818 to make so large a concession
to England, since the United States had usually considered that those vast
inlets or recesses of the ocean ought to be open to American fishermen, as
freely as the sea itself, to within three marine miles of the shore.
"In 1841, the legislature of Nova Scotia prepared a case for the
consideration of the advocate general and attorney general of Eng-
land, upon the true construction of this article of the convention.
The opinion delivered by these officers of the crown was, ' That by the
terms of the convention, American citizens were excluded from any
right of fishing within three miles from the coast of British America,
and that the prescribed, distance of three miles is to be measured from the
headlands or extreme points of land next the sea, of the coast or of the en-
trance of bays or indents of the coast, and consequently that no right
exists on the part of American citizens to enter the bays of Nova Scotia,
there to takejish, although thejishing, being within the bay, may be at a
greater distance than three miles from the shore of the bay; as we are of
opinion that the term 'headland' is used in the treaty to express the part of
the land we have before mentioned, including the interior of the bays and
the indents of the coast. '
"It is this construction of the intent and meaning of the convention
of 1818 for which the colonies have contended since 1841, and which
MISCELLANEOUS. 1253
they have desired should be enforced. This the English government
has now, it would appear, consented to do, and the immediate effect
will be the loss of the valuable fall fishing to American fishermen; a
complete interruption of the extensive fishing business of New Eng-
land, attended by constant collisions of the most unpleasant and excit-
ing character, which may end in the destruction of human life, in the
involvement of the government in questions of a very serious nature,
threatening the peace of the two countries. Not agreeing that the
construction thus put upon the treaty is conformable to the intentions of
the contracting parties, this information is, however, made public to
the end that those concerned in the American fisheries may perceive
how the case at present stands, and be upon their guard. The whole
subject will engage the immediate attention of the government.
"DANIEL WEBSTER,
"Secretary of State."
This paper attracted immediate and universal attention. On the
23d of July Mr. Mason, chairman of the Committee on Foreign Kela-
tions, offered a resolution in the Senate of the United States, requesting
the President to communicate to that body, "if not incompatible with
the public interest, all correspondence on file in the executive depart-
ment, with the government of England or the diplomatic representa-
tive, since the convention between the United States and Great Britain
of October 20, 1818, touching the fisheries on the coast of British
gosessions in North America, and the rights of citizens of the United
tates engaged in such fisheries secured by the said convention; and
that the President be also requested to inform the Senate whether any
of the naval forces of the United States have been ordered to the seas
adjacent to the British possessions of North America, to protect the
rights of American fishermen, under the convention, since the receipt
of the intelligence that a large and unusual British naval force has
been ordered there to enforce certain alleged rights of Great Britain
under said convention."
This resolution was agreed to unanimously. The debate which pre-
ceded its passage was highly animated. Mr. Mason is reported to have
said, that "he had thought it his duty, considering the present aspect
of affairs, so far as they are communicated to us by the public journals,
to submit this resolution, and ask that it be considered immediately.
We are informed, (he said,) unofficially, but yet in a manner clearly
indicating that it is correct, that the British government has recently
asserted rights under the convention of 1818 in relation to the fisheries
of the North, which, whether they exist or not, they suffered from 1818
to 1841 ; and when the question was moved as to the respective rights
of British subjects and American citizens under the treaty of 1818, they
still suffered to remain in statu quo. The British government knew
well that very large and important interests are embarked by citizens
of the United States by these fisheries. They knew that the harbors,
coasts, and seas of their possessions in North America swarm, at stated
seasons of the year — and this, as he was informed, was one of these
reasons — with these fishing vessels. Yet suddenly, without notice of
any kind, we are informed from the public journals, and semi-officially
by a sort of proclamation from the Secretary of State, that a very
large British naval force has been ordered into these seas for the pur-
1254 MISCELLANEOUS.
pose of enforcing, at the mouth of the cannon, the construction which
Great Britain has determined to place on that convention."
Mr. Mason said: "I had supposed, in this civilized age and between
two such countries as Great Britain and the United States, that were
it the purpose of England to revive her construction of the convention
and require that it should be enforced, ordinary national courtesy
would have required that notice should have been given of that deter-
mination on the part of Great Britain. But, sir, when no such notice
is given — when, on the contrary, the first information which reaches us
is that Great Britain has ordered into these seas a large naval- force for
the purpose of enforcing this alleged right, I know not in what light it
may strike senators; for it strikes me as a far higher offence than a
breach of national courtesy — as one of insult and indignity to the whole
American people. This" morning, in the first paper I took up, from
the North, I see extracted from one of the British colonial newspapers,
printed at St. John, New Brunswick, a formal statement of the actual
naval forces ordered by Great Britain into those seas. It consists of
the Cumberland, a seventy-gun ship, commanded by Sir G. F. Sey-
mour, who, I believe, is a British admiral, commanding on the West
Indian station; and then follows an enumeration of steam-vessels,
sloops-of-war, and schooners, and the entire number, nineteen, ordered
to rendezvous there, and with the utmost despatch. For what pur-
pose ?
"To enforce at once, and without notice to this government, so far as
I am informed; and yet we have some information through the quasi
proclamation of the Secretary of State, at the mouth of the cannon, of
the construction which the British government places on that conven-
tion. I do not know what view has been taken by the President of this
extraordinary movement; but I think I do know what the American
people would demand of the Executive, under such circumstances.
If there be official or satisfactory information to the Executive that
this extraordinary naval armament has been ordered by Great Britain
into the North American seas, for the purpose of executing instantly
the construction which Great Britain places on the convention, I say
the American people will demand of their Executive that all the force
of the home squadron shall be ordered there instantly, to protect
American fishermen. Sir, we have been told by the poet who most
deeply read the human heart, that
'From the nettle danger
We pluck the flower safely.'
And if I may be told there is danger of collision, I would answer at
once, there is no danger; but if there were, it becomes the Executive
immediately to resent that which can only be looked on as an indignity
and insult to the nation. I have no fears, Mr. President, that war is to
follow the apparent collision which has taken place between the two
governments. I confess I feel deeply the indignity that has been put
upon the American people in the ordering of the British squadron into
those seas without notice ; and if I read the feelings of our people aright,
they will demand that a like force shall be instantly sent there in order
that the rights of our people may be protected.
"Sir, I do not profess the power to construe the purposes on the part
of the British government. I was very much impressed by a despatch
which I saw in one of the late papers, but which unfortunately I have
MISCELLANEOUS. 1255
not at hand. Within the last few days a despatch has been received
from the foreign office of Great Britain to the colonial oiiicc, advising
it of this movement, and advising that it was one requiring celerity and
despatch, and requiring that measures should be taken by the colonial
office to procure concert between the British naval forces and the
colonial authorities. The reason assigned was, that this measure was
taken on the part of Great Britain as preliminary to certain negotia-
tions. Now, what does this mean? I know not what these negotia-
tions are ; but if it means anything, it means that we are to negotiate
under duresse.
"Aye, sir, at this day this great people, covering a continent num-
bering thirty millions, are to negotiate with a foreign fleet on our coast.
I know not what the President has done, but I claim to know what the
American people expect of him. I know that if he has done his duty,
the reply to this resolution of inquiry will be — I have ordered the
wliole naval force of the country into those seas, to protect the rights
of American fishermen against British cruisers ! I hope it will be the
pleasure of the Senate to consider the resolution immediately.
Several senators followed Mr. Mason, and spoke in similar terms.
"Mr. Harnlin agreed to every word uttered by the chairman of the
Committee on Foreign Relations, and he was grateful to the senator for
having introduced the resolution. What the object of the British
armament sent to the fishing shores was, he could not say; but that it
had some ulterior object, was certain. It had been whispered that it
was connected with certain negotiations with respect to a reciprocity
trade with the colonies. If this were so, it was nothing more nor less
than to compel the United States to legislate under duresse, and to this
he, for one, was unwilling to submit.
"Mr. Cass gave his full concurrence to all that had fallen from Mr.
Mason, and he heartily approved of the resolution. He was gratified
at hearing that senator's remarks, wThich were equally statesmanlike
and patriotic. He had never before heard of such proceeding as that
now adopted by England. No matter what the ooject of the force
was, there was one thing certain — the American people would not
submit to surrender their rights. This treaty was now over thirty
years old, and it recognised clearly the right of Americans to fish
within three miles of any shore. This had been conceded for thirty
years. If there was any doubt about it, it could be settled by nego-
tiations.
"Mr. Pratt said this appeared to him more likely to result in wrar than
did the late difficulty. The English government has decided upon a
treaty construction. England don't want to negotiate, for she has sent
a large force to execute her construction of the treaty. Americans
are to be expelled from rights which they have enjoyed for thirty
years, under what their government has at all times and now declares
to be the proper construction of the treaty. Ought not a force to be
sent there to protect them in those rights which this treaty has de-
clared to be theirs? Certainly there ought.
"Mr. Davis said, by the newspapers it would appear that the Secre-
tary of State and the British minister, who had gone to Boston, were
now consulting on this matter, and he thought, from this fact, that
there was little apprehension but that the matter would be settled
amicably. He had no difficulty at arriving at the object of the move-
ment. The senator from Maine, he thought, had touched the key to
1256 MISCELLANEOUS.
the whole. He would not hesitate to act on a bill proposing a proper
and suitable principle of reciprocity.
"Mr. Seward would vote with pleasure for the resolution. It was
limited to two objections: to obtain information as to diplomatic cor-
respondence on the subject, and whether any naval force had been
sent to the seas where the difficulty had arisen. The importance of
these fisheries was conceded by all, and no one State was more inter-
ested in them than another. It was well known that any attempt to
drive our fishermen from these fisheries would involve the whole
country in a blaze of war, hi which case his State would be deeply
interested.
"Mr. Rusk said that if the object of that naval force ky Great
Britain was to bring about a reciprocity of trade, no matter how fa-
vorably he ought to look on such a proposition otherwise, he would
never give it his assent under the duresse of British cannon. He
thought the domineering spirit of England ought to be met promptly."
On the 25th of July, and two days after the resolution passed the
Senate, the Secretary of State was publicly received at his family
home, Marshfield, Massachusetts. In the course of his reply to an
address by the Hon. Seth Sprague, he is reported to have spoken in
reference "to recent occurrences, threatening disturbances to this
country, on account of the fisheries," in these words:
"It would not become me to say much on that subject, until
I speak officially, and under direction of the head of the govern-
ment. And then I shall speak. In the mean time, be assured that
that interest will not be neglected by this administration, under any
circumstances. The fishermen shall be protected in all their rights
of property, and in all their rights of occupation. To use a Marble-
head pnrase, they shall be protected ' hook and line, and bob and sinker.'
And why should they not? They are a vast number who are em-
ployed in that branch of naval enterprise. Many of the people of
our own town are engaged in that vocation. There are among you
some, who, perhaps, have been on the Grand Bank for forty successive
years. There they have hung on to the ropes, in storm and wreck.
The most important consequences are involved in this matter. Our
fisheries have been the very nurseries of our navy. If our flag-ships
have met and conquered the enemy on the sea, the fisheries are at the
bottom of it. The fisheries were the seeds from which these glorious
triumphs were born and sprung.
"Now, gentlemen, I may venture to say one or two things more on
this highly important subject. In the first place, this sudden inter-
ruption of the pursuits of our citizens, which had been carried on
more than thirty years, without interruption or molestation, can
hardly be justified by any principle or consideration whatever. It
is now more than thirty years that they have pursued the fisheries in
the same waters and on the same coast, in which, and along which,
notice has now come that they shall be no longer allowed these priv-
ileges. Now, such a thing cannot be justified without previous notice
having been given. A mere indulgence of long continuance, even if
the privilege were but an indulgence, cannot be withdrawn at this
season of the year, when our people, according to the custom, have
engaged in the business, without notice — without just and seasonable
notice.
MISCELLANEOUS. 1257
"I cannot but think the late despatches from the colonial office had
not attracted, to a sufficient degree, the attention of the principal
minister of the crown; for I see matter in them quite inconsistent
with the arrangement made in 1845 by the Earl of Aberdeen and
Edward Everett. At that time, the Earl of Derby, the present first
minister, was colonial secretary. It could not weU have taken place
without his knowledge, and, in fact, without his concurrence and
sanction. I cannot but think, therefore, that its being overlooked is
an inadvertence.
"The treaty of 1818 was made with the crown of England. If a
fishing vessel is captured by one of her vessels of war, and carried to
a British port for adjudication, the crown of England is answerable;
and then we know wThom we have to deal with. But it is not to be
expected that the United States will submit their rights to be adjudi-
cated upon in the petty tribunals of the provinces; or that we shall
allow our vessels to be seized on by constables, or other petty officers,
and condemned by the municipal courts of Quebec and Newfound-
land, New Brunswick or Canada. No, no, no! (Great cheering.)
"Further than this, gentlemen, I do not think it expedient to
remark upon this topic at present. But you may be assured, it is a
subject upon which no one sleeps at Washington. I regret that the
state of my health caused my absence from Washington when the
news came of this sudden change in the interpretation of the treaties."
The President answered the resolution of the Senate on the 5th of
August, and, in transmitting the documents requested by that body,
he observed that the steam-frigate Mississippi, Commodore M. C.
Perry, had been despatched to the coasts of the British possessions
"for the purpose of protecting the rights of American fishermen under
the convention of 1818." These documents were speedily published.
Many of them are of great value. Soon after their publication,
debates upon the subject of the fisheries were renewed. Our limits
allow us to notice the speech of Mr. Seward alone, delivered on the
14th of August.
He is supposed to have expressed the views of the government, or
to have made authorized explanations, upon several important points
which he discussed. To correct whatever misapprehension existed
relative to the British naval force on the fishing grounds, he said:
"Let us now see wiiat force it is that has been sent into the field of
the dispute. There is the Buzzard, a steamer of six guns, and the Ber-
muda, a schooner of three guns, sent to the straits of Belleisle and on
the coast of Newfoundland, where we have an unquestioned right of
fishing, and where there is no controversy. Then there is the Devasta-
tion, a steamer of six guns; the Arrow and the Telegraph, of one gjun
each; and the Net-ley, of two guns, hi the Gulf of St. Lawrence: making
in the whole seven vessels, with a total of 31 guns, sent by the imperial
government into these waters. If you add to this force the flag-ship of
Vice Admiral Seymour, (the Cumberland,) with seventy guns, there
are, altogether, one hundred and one guns. This is the naval force
which has been sent into the northeastern seas.
"Now, I desire the Senate to take notice what force was there before
this great naval force was sent. Last year there was the flag-ship, the
Cumberland, commanded by the same Sir Charles Seymour, with
seventy guns; a frigate of twenty-six guns; two sloops of sixteen guns;
and one steamer of six guns: making in the whole sixty-four guns,
1258 MISCELLANEOUS.
without the Cumberland; and, including the Cumberland, one hun-
dred and thirty-four guns.
"Then this mighty naval demonstration which has so excited the
Senate and roused its indignation, and brought down its censure upon
the administration, consists in a reduction of the naval force which
Great Britain had in these waters a year ago from one hundred and
thirty-four to one hundred and one guns. What the British govern-
ment has done has been to withdraw some large steamers, because
they were not so useful in accomplishing the objects designed, or
because they would be more useful elsewhere, and to substitute in
their place a large number of inferior vessels — either more efficient
there, or less useful elsewhere."
He added: "The Senate will understand me. I do not say that
this is the whole force which is in those waters. There is an increase,
I think, on the whole, which is furnished by small vessels of the dif-
ferent provinces — Canada having sent two or three, Nova Scotia three
or four, and Prince Edward Island, I think, one. But the question I
am upon, and the real question now is, what the imperial government
has clone; and so I say the British government has reduced the num-
ber of guns employed."*
In reply to strictures upon the course of the Secretary of State, Mr.
Seward remarked: "The President, it seems, took pains to obtain
information informally, and he caused it to be published, in a notice
issued by the Secretary of State, and dated at the Department of
State July 6, 1852, and which has been called here the 'proclamation'
of the Secretary.
* The luilifax Chronicle, in July, published the following:
" For the information of all concerned, we subjoin a list of the cruisers our calculating
neighbors are likely to fall in with on the coast — all of which will, we apprehend, do
their duty, without fear or favor:
Cumberland * 74 Captain Seymour.
Sappho 12 sloop Com. Cochrane.
Devastation f 6 steam sloop Com. Campbell.
Buzzard G steam sloop Com. — — .
Janus f 4 steam sloop Lieutenant — — .
Netley 3 ketch Com. Kynaston.
Bermuda 3 schooner Lieutenant Jolly.
Arrow brigantine —
Telegraph schooner.
Halifax 2 brigantine Master Laybold.
Belle 2 brigantine Master Crowell.
Responsible 2 schooner Master Dodd.
Daring 2 schooner Master Daly.
" In addition to this formidable force, his Excellency Sir G. F. Seymour requires, we
learn, two more vessels, besides the Arrow and Telegraph, (two beautiful craft, of whose
merits we have previously spoken,) to be fitted, provisioned, officered, and manned by
the British government. The Buzzard, hourly expected from Portsmouth, brings out
men to man these hired vessels. To these must be added two from New Brunswick,
one from Canada, and one from Prince Edward Island, making a total of nineteen armed
vessels, from the 'tall Admiral' to the tiny tender, engaged in this important service.
His Excellency the Vice Admiral deserves the thanks of the people of British North
America for the zeal with which he has taken up this momentous matter, and also for
the promptitude of his co-operation with the provincial government. Janus comes to
Newfoundland direct from Gibraltar, she is an experimental steamer, constructed by
Sir Charles Napier, and by some said to be a splendid failure. Cumberland sails
immediately for St. Johns and the Newfoundland coast."
*Flag, Sir G. F. Seymour. f300 horse power. J220 horse power.
MISCELLANEOUS. 1259
"The Senate will see that the Secretary of State set forth such un-
official information (and all the information was unofficial) as had been
obtained, and stated the popular inference then prevalent, saying
that the imperial government 'appeared' now to be willing to adopt
the construction or the convention insisted on by the colonies. Infer-
ring, from circumstances, the hazards and dangers which would arise,
he set forth the case precisely as it seemed to stand. He adverted to
the question understood as likely to be put in issue, and, admitting
that technically the convention of 1818 would bear the rigorous con-
struction insisted on by the colonies, he declared the dissent of the
government of the United States from it; and then communicated the
case to the persons engaged in this hard and hazardous trade, that
they might oe 'on their guard.'
' ' I am surprised that any doubts should be raised as to the procla-
mation being the act of the government. I do not understand how a
senator or a citizen can officially know that the Secretary of State is
at Marshfield, or elsewhere, when the seal and date of the depart-
ment affirm that he is at the capital. I would like to know where or
when this government or this administration has disavowed this procla-
mation.
"In issuing this notice, the Secretary of State did just what the Sec-
retary of State had been in the habit of doing in such cases from the
foundation of the government, viz: he issued a notice to the citizens
of the United States to put them on their guard in a case of apparent
danger, resulting from threatening embarrassment of our relations
with a foreign power. The first notice of the kind which I have found
in history is a notice issued by Thomas Jefferson, Secretary of State
under George Washington, to the merchants of the United States,
informing them of the British Orders in Council, and of the decrees of
the French Directory, and of the apprehended seizure and confisca-
tion of American vessels under them; and assuring the American mer-
chants that, for whatever they might unlawfully lose, the government
of the United States would take care that they would be indemnified.
I brought that to the notice of the Senate heretofore, and upon the
ground, among others, that they have twice sanctioned a bill pro-
viding for the payment of losses by French spoliations.
' ' The notice published by Mr. Webster was of the same character
and effect. Since that time, the Mississippi, a steam war frigate of
the United States, has been ordered to those waters to cruise there
for the protection of American fishermen in the enjoyment of their
just rights. Thus ends the whole story of these transactions about
the fisheries. The difficulties on the fishing grounds have 'this ex-
tent— no more:' they are the wonder of a day, and no more."
Again: in explanation of the charge of a senator, that Mr. Webster
had conceded too much in his official notice of July 6, he said: "Now,
here is Mr. Webster's language. After quoting the treaty, he says:
" ' It would appear that, by a strict and rigid construction of this ar-
ticle, fishing vessels of the United States are precluded from entering
into the bays,' &c.
"And in the same connexion he adds:
so
" ' It was undoubtedly an oversight in the convention of 1818 to make
large a concession to England.'
1260 MISCELLANEOUS.
" That is to say, it was an oversight to use language in that conven-
tion which, by a strict and rigid construction, might be made to yield
the freedom of the great bays.
"It is, then, a question of mere verbal criticism. The Secretary
does not admit that the rigorous construction is the just and true one;
and so he does not admit that there is any 'concession' in the sense of
the term which the honorable senator adopts. Now, other honorable
senators, if I recollect aright — and particularly that very accurate and
exceedingly strong-minded senator, the gentleman from Massa-
chusetts, (Mr. Davis) — conceded that, the treaty would bear this
rigorous construction; insisting, nevertheless, just as the Secretary
of State did, that it was a forced and unjust one."
To refute the many rumors relative to an adjustment of the diffi-
culties, as well as to repel the imputation of treating under duress, he
declared that "no negotiation has been had between the President of
the United States and the English government. No negotiation is
now in progress between the two governments. No negotiation has
been instituted between the two governments for any purpose what-
ever. No overture of negotiation has been made by the British gov-
ernment since the last year, and no overture has been made by the
American to the British government. So, then, it appears that noth-
ing has been negotiated away at the cannon's mouth, because there
has been no negotiation at all, either at the cannon's mouth or else-
where. There has not been any negotiation under duress, because
there has been no pretence of a design by the imperial government to
enforce its rigorous construction of the convention of 1818, or to
depart from the position of neutrality, if I may so call it, always
heretofore maintained."
On the subject of reciprocity, he considered that "the indications
are abundant that it is the wish of the Senate that the Executive
should pot treat upon this subject, and I think wisely. I agree on
that point with my honorable and distinguished friend from Massa-
chusetts, (Mr. Davis.) What the colonies require is some modifica-
tion of commercial regulations which may affect the revenue. That
is a subject proper to be acted upon by Congress, not by the President,
if it is to be acted upon at all. It must not be done by treaty. We
seem to have courted the responsibility, and it rests upon us. Let
us no longer excite ourselves and agitate the country with unavailing
debates; but let us address ourselves to the relief of the fishermen,
and to the improvement of our commerce.
" Now, sir, there is only one way that Congress can act, and that is
by reciprocal legislation with the British Parliament or the British
colonies of some sort. I commit myself to no particular scheme or
project of reciprocal legislation, and certainly to none injurious to an
agricultural or a manufacturing interest."
As to the course to be pursued, he said, in concluding his speech,
" I, for one, will give my poor opinion upon this subject, and it is this:
that so long hereafter as any force shall be maintained in those north-
eastern waters, an equal naval force must be maintained there by our-
selves. When Great Britain shall diminish or withdraw her armed
force, we ought to diminish or withdraw our own; and in the mean
time a commission ought to be raised, or some appropriate com-
mittee of this body — the Committee on Foreign Relations, the Com-
mittee on Finance, or the Committee on Commerce — should be
MISCELLANEOUS. 1261
charged to ascertain whether there cannot be some measures adopted
by reciprocal legislation to adjust these difficulties and enlarge the
rights of our fishermen, consistently with all the existing interests of
the United States."
It is understood that the Committee on Commerce, at the moment
of the misunderstanding in July, had nearly matured a bill which em-
braced, substantially, the propositions submitted by Sir Henry Bul-
wer, in June, 1851. To assume that such is the fact, and that the bill
would have passed Congress, but for the precipitancy of the parties to
the Toronto agreement, recalls the significant remark of Mr. Davis,
once already quoted, that the colonists were "playing a game which
may not advance materially the interests they have in view."
Our record, thus far, contains a rapid notice of events connected
with the controversy to the close of August, 1852. It comprises, as
will be perceived, no account of any action on the part or the two
governments to adjust the difficulties between them, either by ne-
gotiation or by legislation.
But there is good authority for saying that the British admiral
(Seymour) was instructed by the admirality, in the course of August,
to allow our fishermen to pursue their avocation in the Bay of
Fundy, on the terms of the arrangement of 1845; to allow us
to fish at the Magdalene islands, as in former years; to forbear
to capture our vessels when more than three miles from the
shore, as measured without reference to the "headlines," and
by the old construction of the convention; and generally to execute
his orders with forbearance and moderation. That the British
ministry have been disposed, from first to last, to adjust the contro-
versy on honorable terms, can hardly be doubted. In 1852, as in
1845, the clamors, remonstrances, and, I will acld.the misrepresenta-
tions of the colonists, changed their intentions. As at every former
time, the politicians of Nova Scotia led off in opposition to a set-
tlement. Early in September, a public meeting was called at Halifax,
which, according to the published report or its proceedings, was
attended by persons of all classes and interests, "to petition her
Majesty in regard to the rumored surrender of the rights of fishery
secured to British subjects by the convention of 1818. One gentle-
man of consideration and influence appears to have "protested against
the utility of the meeting," but to have been "promptly checked by
his worship the mayor," who presided. Several merchants were pres-
ent, but performed a secondary part. The political leaders had every-
thing their own way. One member of the "provincial parliament"
nominated the chairman; another introduced a series of resolutions;
while a third, who declared that "a strong expression of the opinion
of the meeting should go to the foot of the throne," closed his remarks
with submitting a memorial to her Majesty, which "Tie had prepared."
A fourth honorable M. P. P. is understood to have said, that "if her
Majesty's government give up the fisheries, they must be prepared to
give up the colony also;" and the Hon. Joseph Howe, provincial sec-
retary, is represented to have advocated, with his usual power, the
adoption of the measures presented by his associate politicians. Com-
ment upon these measures is not necessary. The tone of the resolu-
tions, of the address to the governor of the colony, and of the memo-
rial to the Queen, is offensive. These documents, from beginning to
end, show a spirit of deep hostility to the United States, and a deter-
1262 MISCELLANEOUS.
mination to be satisfied- with no terms of accommodation which would
be entertained by our government; and, like everything else in Nova
Scotia on the subject of the fisheries, contain much that is erroneous
in statement of matters of fact, and that is unsound in questions of
political science*
* These documents are as follows:
RESOLUTIONS.
1 . Resolved, That the citizens of Halifax feel deeply grateful to her Majesty's govern-
ment for the determination to "remove all ground of complaint on the part of the
colonies in consequence of the encroachments of the fishing vessels of the United
States upon the reserved fishing grounds of British America, ' ' expressed in the despatch
of the right honorable the Secretary of State for the colonies, dated the 22d of May .
2. Resolved, That the citizens of Halifax have regarded with interest and satisfaction
the judicious measures adopted by Vice Admiral Sir George Seymour, to carry out that
determination with firmness and discretion.
3. Resolved, That securely relying upon the justice and maternal care of their Sover-
eign, the citizens of Halifax are reluctant to believe that, because a few threatening
speeches have been made in Congress, and a single ship-of-war has visited their coasts,
the Queen's government will relax their vigilant supervision over British interests, or
weakly yield up rights secured by treaty stipulations.
4. Resolved, That history teaches that the commercial prosperity and naval power
of every maritime state have risen, by slow degrees, from the prosecution of the fisheries,
in which seamen were trained and hardy defenders nurtured.
5. Resolved, That reading this lesson aptly, the great commercial and political rivals
of England — the United States and France — have, for many years, fostered their
fisheries by liberal bounties, and freely spent their treasure that they might recruit
their navy and extend their mercantile marine.
6. Resolved, That by the aid of these bounties France and the United States main-
tain, on the banks and coasts of North America, 30,000 seamen, respectively, which
either power, in case hostilities impend, can call home to defend its national flag, and,
if need were, launch against the power of this empire.
7. Resolved, That without the aid of bounties the fisheries of British America have
been prosecuted, and her marine interests have expanded, until her shores are peopled
with a hardy class of men, who consume, almost exclusively, the manufactures of
England in peace, and who, in times of danger, would leap into the shrouds of their
national ships to defend the flag they reverence.
8. Resolved, That the cession of the Aroostook territory, and the free navigation of
the St. John, the right of registry in colonial ports, and the free admission of the pro-
ductions of the United States into British America at revenue duties only, have been
followed by no corresponding relaxation of the commercial system of the United States
which would justify a further sacrifice of colonial interests.
9. Resolved, That while more than one half of the seacoast of the republic bounds
slave States, whose laboring population cannot be trusted upon the sea, the coasts of
British America include a frontage upon the ocean greater than the whole Atlantic
seaboard of the United States. The richest fisheries in the world surround these coasts.
Coal, which the Americans must bring with them, should they provoke hostilities,
abounds at the most convenient points. Two millions of adventurous and industrious
people already inhabit these provinces, and the citizens of Halifax would indeed
deplore the deliberate sacrifice of their interests, by any weak concession to a power
which ever seconds the efforts of astute diplomacy by appeals to the angry passions —
the full force of which has been twice on British America within the memory of this
generation, and, in a just cause, with the aid of the mother country, could be broken
again.
ADDRESS.
To his Excellency Colonel SIR J. GASPARD LEMARCHANT, Knight, and Knight Com-
mander of the Orders of St. Ferdinand and of Charles the Third of Spain, Lieutenant
Governor and Commander-in-chief in and over her Majesty's province of Nova Scotia
and its dependencie3, Chancellor of the same, &c.
MAY IT PLEASE YOUR EXCELLENCY: We, her Majesty's dutiful and loyal subjects,
the mayor and aldermen of the city, and representatives of the city and county of
Halifax, respectfully request that your excellency will be pleased to transmit, by this
night's mail, to the right honorable the Secretary of State for the Colonies, to be laid at
MISCELLANEOUS. 12 03
There is now but little to add to complete a record of the more im-
portant events connected with the history of this controversy.
The Queen of England, in her speech at the opening of Parliament,
November, 1852, remarked that "the present and well-grounded con-
plaints on the part of my North American colonies, of the infraction
the foot of the throne, a dutiful and loyal petition, unanimously adopted this day by
a very large and influential meeting of our fellow-citizens, held in the Province Hall.
.We also pray that the resolutions, a copy of which is annexed, and which were passed
with equal unanimity, may be also forwarded to the right honorable the Colonial
Secretary.
This petition, and these resolutions, have been adopted in consequence of the alarm-
ing intelligence having been received that negotiations are pending between the
British government and the American minister in London, for surrendering to the
citizens of the United States the right of fishing on the coasts and within the bays of
the British North American colonies, from which they are now excluded by the con-
vention of 1818. We entreat your excellency, as the Queen's representative in this
province, to convey to her Majesty's government a strong remonstrance against any
such concession of the fishing rights as appears to be contemplated.
The immediate departure of this mail will not permit our detailing all the disastrous
results to be apprehended from the concessions now required by the American govern-
ment, but we must beg that you will assure her Majesty's ministers that the informa-
tion just received has occasioned the most intense anxiety throughout the community,
it being evident that our rights, once conceded, can never be regained.
By the terms of the convention of 1818 the United States expressly renounced any
right of fishing within three marine miles from the coasts and shores of these colonies,
or of entering their bays, creeks, and harbors, except for shelter, or for wood and water.
If this restriction be removed, it must be obvious to your excellency that it will be
impossible to prevent the Americans from using our fishing grounds as freely as our
own fishermen. They will be permitted to enter our bays and harbors, where, at all
times, unless armed vessels are present in every harbor, they will not only fish in common
with our own fishermen, but they will bring with them contraband goods to exchange
with the inhabitants for fish, to the great injury of colonial traders and loss to the public
revenue. The fish obtained by this illicit traffic will then be taken to the United
States, where they will be entered as the produce of the American fisheries, while those
exported from the colonies in a legal manner are subject to oppressive duties.
We need not remind your excellency that the equivalent said to have been pro-
posed— that of allowing our vessels to fish in the waters of the United States — is utterly
valueless, and unworthy of a moment's consideration.
We would fain hope that the reports which have appeared in the public press respect-
ing the pending negotiations between the two governments are without any good
foundation.
We cannot imagine that her Majesty's government, after having taken prompt and
decided measures to enforce the true construction of the treaty, will ever consent to
such modification of its terms as will render our highly valued rights a mere privilege
to be enjoyed in common with foreigners.
WTe therefore pray your excellency to exert all your influence to induce her Majesty's
ministers to stay any further negotiations on this vitally important question until the
rights and interests of the inhabitants of this province are more fully inquired into
and vindicated.
HALIFAX, September 2, 1852.
MEMORIAL.
To the Queen's Most Excellent Majesty.
The humble memorial of the undersigned, merchants and inhabitants of Halifax
and other parts of Nova Scotia, convened at a public meeting held at Halifax on
Thursday, the 2d of September, 1852, showeth:
By the mail recently arrived from England, your memorialists have learned with
deep concern that it is in contemplation of your Majesty's ministers to surrender to
the United States of America privileges of fishing on the coasts of your Majesty's North
American colonies, to which, at present, your Majesty's subjects are alone entitled.
Time is not afforded to enter at large on this subject, nor is it necessary. Repeatedly
have the- vital importance of the^e !i.-h» ri< B. and the nccirsity of pit. serving unim-
paired the restrictions against encroachment by which they are guarded, been urged
1264 MISCELLANEOUS.
by the citizens of the United States of the fishery convention of 1818,
induced me to despatch, for the protection of their interests, a class of
vessels better adapted to the service than those which had been pre-
viously employed. This step has led to discussion with the govern-
ment of the United States; and while the rights of my subjects have
been firmly maintained, the friendly spirit in which the question has
been treated induces me to hope that the ultimate result may be a
mutually beneficial extension and improvement of our commrecial
intercourse with the great republic."
The President of the United States, in his message to Congress, in
the following month, refers to the subject with less brevity. He
said: "In the course of the last summer, considerable anxiety was
caused, for a short time, by an official intimation from the govern-
ment of Great Britain that orders had been given for the protection
of the fisheries upon the coasts of the British provinces in North
America against the alleged encroachments of the fishing vessels of
the United States and France. The shortness of this notice and the
season of the year, seemed to make it a matter of urgent importance.
It was at first apprehended that an increased naval force had been
on the imperial government. It was believed the time had long passed when a ques-
tion could be raised on either of these points. To stimulate imperial aid in protecting
and maintaining acknowledged rights was all, it was imagined, that was required of
the colonies, and they fondly trusted this consummation had been attained, when,
in the present season, your Majesty's war steamers came commissioned on this service.
Little, may it please your Majesty, was it anticipated these were to be the precursors
of a transfer alike injurious and humiliating to your loyal colonial subjects, or for this
aid that so large a price would be demanded.
May it please your Majesty, when the -United States, by the treaty of 1818, solemnly
renounced forever the right to fish within three marine miles of the coasts, bays,
creeks, or harbors of certain portions of your North American territory, the stipula-
tion was neither extraordinary nor extravagant. It is matter of common history,
that sea-girt nations claim peculiar rights within a league of their shores ; and equally
plain that, according to the maxims of international law, this claim is defined by lines
drawn not only between the formations of bays, but from the headlands of indentations
of the coast.
But had it been otherwise, the stipulation was part of a general treaty, in which
concession on one side may be presumed to have been compensated by concession on
the other, and loss in one particular by gain in another; and the engagement was made
in language too explicit, and in terms too well understood, to admit the possibilty of
misapprehension.
Shall nations, may it please your Majesty, be absolved from the obligation of their
contracts, and complaints be respected when made by a people, which, between indi-
viduals, would be treated as puerile?
If conciliation, irrespective of right, be the principle on which is to be withdrawn
the restriction against the entry of Americans into the bays and indentations of the
coast to fish, limiting them alone to the distance of three miles from the shore, the
concession of the privilege to fish within this latter distance must equally be granted —
as, indeed, has been already urged in the American Congress: the restriction in both
cases rests on the same authority; and the concession in each would be demanded
by the same principle. It may not be the province of your Majesty's colonial sub-
jects to suggest how far such a principle is consistent with national honor and inde-
pendence: they have a right to pray that it be not carried out at their expense.
When the welfare of the empire is supposed to demand extensive alterations in the
laws of trade and navigation, the peculiar interests of the colonies are not permitted
to disturb the general system by the continuance of conflicting regulations, however
necessary, from long usage and the competition of foreigners more powerful and more
fostered by their own government.
In the present case, the possession to surrender is no offspring of artificial arrange-
ments, falling with a complicated policy of which it formed a part.
No, may it please your Majesty, your loyal subjects in Nova Scotia raise their voice
against the injury of an inheritance conferred upon your North American subjects by
MISCELLANEOUS. 1265
ordered to the fishing grounds to carry into effect the British interpre-
tation of those provisions in the convention of 1818 in reference to
the true intent of which the two governments differ. It was soon
discovered that such was not the design of Great Britain; and satis-
factory explanations of the real objects of the measure have been
given, both here and in London.
The unadjusted difference, however, between the two governments,
as to the interpretation of the first article of the convention of 1818, is
still a matter of importance. American fishing vessels, within nine or
ten years, have been excluded from waters to which they had free
access for twenty-five years after the negotiation of the treaty. In
1845, this exclusion was relaxed so far as concerns the Bay of Fundv,
but the just .and liberal intention of the home government, in compli-
ance with what we think the true construction of the convention, to
open all the other outer bays to our fishermen, was abandoned, in con-
sequence of the opposition of the colonies. Notwithstanding this, the
United States have, since the Bay of Fundy was reopened to our fish-
ermen in 1845, pursued the most liberal course towards the colonial
fishing interests. By the revenue law. of 1846. the duties on colonial
fish entering pur ports were very greatly reduced, and, by the ware-
housing act, it is allowed to be entered in bond without payment of
duty. In this way, colonial fish has acquired the monopoly of the
export trade in our market, and is entering, to some extent, into the
home consumption. These facts were among those which increased
the sensibility of our fishing interest at the movement in question.
nature, connected with their soil by the laws and usages of nature, confirmed to them
by solemn compact, and which, practically enjoyed by them peculiarly, and as your
other Majesty's subjects cannot enjoy them, can be surrendered only at their extreme
injury and great loss.
Surely, may it please your Majesty, your loyal colonial subjects have a right to ask
for some better reason for this sacrifice of their peculiar right and interest than the
demand of a foreign power — the aggrandizement of a foreign people.
It is reported that the American government, with characteristic diplomatic skill,
have offered to concede a similar privilege on their own coast in return for what they
seek on the coasts of British North America.
The proffered boon is valueless to the colonists — they want it not, and would derive
no benefit from it. The offer may deceive the uninformed, or it may afford an excuse
to palliate the sacrifice of your colonial subjects' rights. It may have been made by
our sagacious neighbors with this object; but to those who will suffer by the pretext,
it is but the addition of insult to wrong. If rights so entirely colonial and so clear as
this are to be sacrificed to American influence, the colonists should know it. Let
them not, may it please your Majesty, be treated as children or imbeciles by nominally
granting them a privilege which they know, and the Americans know, to be worth-
less as an equivalent for one which both equally know to be of incalculable value;
for let it not be urged upon your Majesty that what the Americans seek is of no value.
Their earnestness is certain evidence to the contrary.
It is, may it please your Majesty, of value, of great value, in itself; of perhaps
greater value still, as the best, the only safeguard against violation of the restriction
which prohibits the approach of the American fishermen within three miles of the
shore.
Your memorialists deprecate all negotiation — all compromise on the subject. The
Americans will not, probably they cannot, grant an equivalent for the privileges
they seek, and the only security for the colonies is the entire abandonment of the pres-
ent negotiations.
Your memorialists most earnestly entreat your Majesty that the existing fishery
restrictions will be preserved in their letter, and that your Majesty's power may be
put forth to prevent their violation.
And your petitioners, as in duty bound, will ever pray, &c.
92909°— S. Doc, 870, 61-3, vol 3 '41
1266 MISCELLANEOUS.
"These circumstances, and the incidents above alluded to, have led
me to think the moment favorable for a reconsideration of the entire
subject of the fisheries on the coasts of the British provinces, with a
view to place them upon a more liberal footing of reciprocal privilege.
A willingness to meet us in some arrangement of this kind is under-
stood to exist on the part of Great Britain, with a desire on her part to
include in one comprehensive settlement as well this subject as the
commercial intercourse between the United States and the British
provinces. I have thought that, whatever arrangements may be
made on these two subjects, it is expedient that they should be
embraced in separate conventions. The illness and death of the late
Secretary of State prevented the commencement of the contemplated
negotiations. Pains have been taken to collect the information
required for the details of such an arrangement. The subject is
attended with considerable difficulty. If it is found practicable to
come to an agreement mutually acceptable to the two parties, conven-
tions may be concluded in the course of the present winter. The
control of Congress over all the provisions of such an arrangement,
affecting the revenue, will of course be reserved."
Our latest accounts from two of the British colonies show that oppo-
sition is still manifested to an adjustment of the dispute on terms
which would be satisfactory to the United States.
The resolutions which follow, and which were adopted at a public
meeting at St. John, New Brunswick, December, 1852, indicate, prob-
ably, the temper of the commercial class of that city:
"Resolved, That this meeting consider the coast fisheries of the
North American colonies the natural right and property of the inhab-
itants thereof, and that they should not be alienated, conceded, nor
affected without their consent, in any negotiation with the United
States government, or any other foreign power, without their consent,
inasmuch as the value of the fisheries to the British provinces, with an
increased and increasing population, cannot be estimated aright at the
present time.
"Resolved, That this meeting view with deep anxiety and concern
the announcement in her Majesty's speech to the imperial Parliament,
that negotiations are now pending between her Majesty's government
and that of the United States, relative to the fisheries of the North
American provinces, and also the recommendation of the President of
the United States, in his official message to Congress, to negotiate a
treaty for a participation by the citizens of the TJnited States in the
said fisheries, irrespective of any question of reciprocal intercourse
between the United States and the North American colonies.
"Resolved, That a committee be now appointed to prepare an hum-
ble address, praying that her Majesty will be graciously pleased to
refuse to entertain any proposition from the United States government
for any modification or alteration of the treaty of 1818, unless such a
proposition embraces the full and entire question of reciprocal inter-
course in commerce and navigation upon terms that will be just and
reasonable, inasmuch as the value of a participation in our fisheries by
the citizens of the United States would greatly exceed any concessions
that the United States government can offer to the inhabitants of the
British colonies, and that, before any treaty affecting the fisheries is
agreed upon, her Majesty will be graciously pleased to afford her Maj-
esty's loyal and faithful subjects, in the provinces, an opportunity of
MISCELLANEOUS. 1267
becoming acquainted with the terms proposed in said treaty, and of
laying their case at the foot of the throne."
The lieutenant governor of Nova Scotia, in his speech to the Assem-
bly of that colony, January, 1853, observes:
"I shall direct to be laid before you certain papers, connected with
the important subject of an efficient protection of the fisheries, includ-
ing correspondence between the executive and his excellency the naval
commander-in-chief on this station, with respect to the best mode in
which this service should be carried out. To the zeal and experience
of that distinguished officer, and to the active and cordial co-operation
of the officers of the squadron employed under his command, we are
much indebted for the vigilance with which our national rights have
been guarded, without, at the same time, any diminution of the
friendly relations which ought to subsist between those whose common
origin and mutual interests offer so many pledges for the preservation
of peace.
You will be pleased to learn that the government of the United
States has at length consented to negotiate on the subject of their
commercial relations with the British empire. I shall rejoice if these
negotiations result in the opening of more extended markets for the
productions of British America, and the adjustment of questions on
which the legislatures of all the provinces have hitherto evinced a
lively interest."
The Assembly, in their reply to his excellency, deprecate "any con-
cession of territorial advantages to the citizens of the United States,
without these are purchased by the most full and ample equivalents."
EXAMINATION OF THE BRITISH PRETENSIONS, AND OF THE DOCUMENTS
WHICH SUPPORT THEM.
Having now completed a rapid historical view of the controversy
between the two governments as to the intent and meaning of the first
article of the convention of 1818, I propose to examine the principal
papers which are relied on to maintain the British side of the case.
In answer to Lord Falkland's first query, the crown lawyers s.iy:
"In obedience to your lordship's commands,we have taken these papers
into consideration, and have the honor to report, that we are of opinion
that the treaty of 1783 was annulled by the war of 1812; and we are
also of opinion that the rights of fishery of the citizens of the United
States must now be considered as defined and regulated by the conven-
tion of 1818; and with respect to the general question, 'if so, what
right ? ' we can only refer to the terms of the convention, as explained
and elucidated by the observations which will occur in answering the
other specific queries."
And so, as tne words stand, the treaty of 1783 having been "an-
nulled" by the event spoken of, our independence as a nation was re-
voked also. This is something the American people had not thought
of. These gentlemen mean, possibly, that our rights of fishing only
were abrogated by the rupture in 1812, and we may consider their
opinion on this ground.
Fortunately, the late President John Quincy Adams has pronounced
a judgment upon this very point. On the convention of 1818 he re-
marked: "The United States have renounced forever that part of the
fishing liberties which they had enjoyed, or claimed, in certain parts of
1268 MISCELLANEOUS.
the exclusive jurisdiction of British provinces, and within three marine
miles of the shores. The first article of this convention affords a signal
testimonial of the correctness of the principle assumed by the Ameri-
can plenipotentiaries at Ghent ; for as by accepting the express renun-
ciation by the United States of a small portion of the privilege in ques-
tion, and by confirming and enlarging all the remainder of the privilege
forever, the British government have implicitly acknowledged that the
liberties of the third article of the treaty of 1783 have not been abro-
gated by the war."
It is true, as a general rule, that the obligations of treaties are dis-
solved by hostilities. But, says Chancellor Kent, "where treaties con-
template a permanent arrangement of national rights , or which, by their
terms, are meant to provide for the event of an intervening war, it
would be against every principle of just interpretation to hold them
extinguished by the event of war. They revive at peace, unless waived,
or new and repugnant stipulations be made." The treaty of 1783 is pre-
cisely within this rule. It "contemplated a permanent arrangement
of national rights." It ' ' revived at the peace ; " for our commissioners
at Ghent, instead of "waiving" the former stipulations, or admitting
"new and repugnant" ones, declined any discussions whatever on the
subject. In their communication to the Secretary of State, of Decem-
ber 25, 1814, they say:
"Our instructions had forbidden us to suffer pur right to the fisheries
to be brought in discussion, and had not authorized us to make any dis-
tinction in the several provisions of the third article of the treaty of
1783, or between that article and any other of the same treaty.
"We had no equivalent to offer for a new recognition of our right to
any part of the fisheries, and we had no power to grant any equivalent
wmcn might be asked for it by the British government. We contended
that the whole treaty of 1783 must be considered as one entire perma-
nent compact, not liable, like ordinary treaties, to be abrogated by a
subsequent war between the parties to it; as an instrument recognising
the rights and liberties enjoyed by the people of the United States as
an independent nation, and containing the terms and conditions on
which tne two parties of one empire had mutually agreed henceforth
to constitute two distinct and separate nations. In consenting, by
that treaty, that a part of the North American continent should remain
subject to the British jurisdiction, the people of the United States had
reserved to themselves the liberty, which they had ever before
enjoyed, of fishing upon that part of the coast, and of drying and cur-
ing fish upon the shores; and this reservation had been agreed to by
the other contracting party.
' 'We saw not why this liberty — then no new grant, but a mere recog-
nition of a prior right always enjoyed — should be forfeited by a war
more than any other of the rights of our national independence; or
why we should need a new stipulation for its enjoyment more than we
needed a new article to declare that the King of Great Britain treated
with us as free, sovereign, and independent States. We stated this
principle in general terms to the British plenipotentiaries in the note
which we sent to them with our projet of the treaty, and we alleged it
as the ground upon which no new stipulation was deemed by our gov-
ernment necessary to secure to the people of the United States all the
rights and liberties stipulated in their favor by the treaty of 1783. No
MISCELLANEOUS. 1269
reply to that part of our note was given by the British plenipoten-
tiaries." *
To Lord Falkland's second and third queries the Queen's advocate
and her Majesty's attorney general reply:
"Except within certain defined limits, to which the query put to us
does not apply, we are of opinion that, by the terms of the treaty,
American citizens are excluded from the right of fishing within three
miles of the coast of British America; and that the prescribed distance
of three miles is to be measured from the headlands or extreme
points of land next the sea of the coast, or of the entrance of the bays,
and not from the interior of such bays or inlets of the coast; and,
consequently, that no right exists, on the part of American citizens, to
enter the bays of Nova Scotia, there to take fish, although the fishing
being within the bay, may be at a greater distance than three miles
from the shore of the bay, as we are of opinion that the term headland
is used in the treaty to express the part of the land we have before
mentioned, excluding the interior or the bays and the inlets of the
coast."
It is somewhat remarkable that the term "headland" does not once
occur in the convention. Of course, so important a mistake as this
leaves these learned gentlemen in an unfortunate position. The single
word "headland," on which they found their argument, is not once
"used," I repeat, in the instrument which they are required to inter-
pret. I affirm, further, that the idea of excluding our vessels from
the "bays of Nova Scotia" was not entertained, nor so much as men-
tioned, during the negotiations which preceded the convention. The
consultations between Mr. Adams and Lord Bathurst commenced on
* It has been suggested to me by gentlemen of high consideration in our national coun-
cils, that Mr. Adams, by consenting to the convention of 1818, abandoned the principle
which is here so ably asserted. If it can be shown that he really did consent to that
convention, the suggestion is not without force, since it is manifest, that on the ground
taken by our commissioners at Ghent, no new stipulations were necessary. But I have
never believed that Mr. Adams, as Secretary of State, approved of the terms of the
convention; and my conjecture has been, that he persisted in the views which he
entertained in 1814, and was overruled by other members of Mr. Monroe's cabinet.
Desirous, if possible, to ascertain the precise fact upon so important a point, I addressed
a note of inquiry to the Hon. Charles Francis Adams, his only surviving son and execu
tor. This gentleman consulted his father's diary, and kindly furnished me with the
following minutes of a conversation with the British minister at Washington, (Mr.
Bagot,) on the 15th of May, 1818. This extract will remove all doubt, as it seems to
me, as to the consistency of Mr. Atlams, and shows that he submitted, rather than con-
sented, to a negotiation which he had not the power to prevent, as well as to terms
which he disliked, and which had been partially or entirely determined upon by our
government before his return from England, or before he became a member of the
cabinet.
"As to the proposal which was to have been made to the British government," he
recorded, "and which had hitherto been delayed, its postponement had been owing
to difficulties which had been discovered since it was promised. It was founded on the
principle of assuming a range of coast within given latitudes for our fishermen to fre-
quent, and abandoning the right to fish for the rest. But the fish, themselves, resorted
at different times to different parts of the coast, and a place which might be selected
as very eligible now, might be in the course of four or five years entirely deserted.
For my own part, I had always been averse to any proposal of accommodation. I thought
our whole right, as stipulated by the treaty of 1783, so clear, that I was for maintaining the
whole; and if force should be applied to prevent our fishermen from frequenting the coast,
I would have protested against it, and reserved the right of recovering THE WHOLE BY FORCB,
whenever we should be able. IT HAD, HOWEVER, BEEN DETERMINED OTHERWISE HERE,
AND A PROPOSAL HAD BEEN PROMISED. Perhaps we should ultimately offer to give up
the right of drying and curing on the shore, and reserve the whole right of fishing."
1 2 70 MISCELLANEOUS.
the basis of requiring of us the renunciation of the shore or boat fish-
eries, and of no others. At the first interview his lordship used this
distinct and emphatic language:
"As, on the one hand, Great Britain could not permit the vessels of
the United States to fish within the creeks and close upon the shores of
the British territories, so, on the other hand, it was by no means her
intention to interrupt them in fishing anywhere in the open sea, or
without the territorial jurisdiction, a marine league from the shore."
Again, and on a subsequent occasion, he said, it is not "of fair com-
petition that his Majesty's government has reason to complain, but
of the preoccupation of British harbors and creeks." The confer-
ences, tne correspondence, proceeded and terminated on this suppo-
sition— that we relinquish the inner grounds, as they are called, and
retained the outer, or vessel fisheries. We were no longer to interfere
with the colonists in the "harbors and creeks;" but, beyond the com-
mon three-mile maritime jurisdiction, were to retain every right to
catch fish that we had previously enjoyed. Did space allow, I could
show from both sides of the correspondence that this original thought
of Lord Bathurst was kept continually in view, and that the bays
mentioned by the crown lawyers were not even once referred to. Is
it, then, to be believed for a single moment — recalling, as we fairly
may do, the course pursued by Mr. Adams and Mr. Gallatin at
Ghent, in 1814, and the remarks of Lord Bathurst the following
year — that, after three years of negotiation, a treaty should have
been formed which took from us very much more than the British
government required us to surrender at the outset? The thing seems
utterly impossible.*
Our statesmen have been accused, on the other side of the Atlantic,
of a limited knowledge of international law, but never of sacrificing
our interests: in truth, the standing charge against them is, that they
overreach, and drive too hard bargains. But, on the supposition
that the right of fishing has been abandoned in the bays of British
America, those who negotiated, and those who confirmed, the con-
vention of 1818, allowed themselves to be most scandalously duped,
and never subsequently discovered the fraud.
Contemporaneous exposition is always authoritative to some ex-
tent; and in this case, I consider it is as decisive as are the essays
of Hamilton, Madison, and Jay, in interpreting the constitution.
The crown lawyers, who had no part in concluding the treaty
before us, cannot be allowed to interpret it for our government, when
we have the declarations of the minister who opened the conferences,
and the ministers who signed the treaty itself. From this position
we are not to be driven. What, then, is the testimony of Messrs.
Gallatin and Rush? On the very day on which they affixed their
signatures to the convention, (October 20, 1818,) they wrote to the
Secretary of State, (who was no other than John Quincy Adams)
that "We succeeded in securing, besides the rights of taking and
* The extract from John Quincy Adams's diary which I have inserted as a note, in
considering the crown lawyers' reply to Lord Falkland's first query, shows, conclu-
Bively, that as late as May 15, 1818, and after the negotiations of more than two years,
our government had not even proposed to surrender any portion of the fishing-grounds
which we occupied under the treaty of 1783. Mr. Adams records, at the date men-
tioned: "Perhaps we should ultimately offer to give up the right of drying and curing on
the shore, and reserve the whole right of fishing "
MISCELLANEOUS. l2?l
curing fish within the limits designated by our instructions, as a sine
qua non, the liberty of fishing on the coasts of the Magdalen islands,
and of the western coast of Newfoundland, and the privilege of enter-
ing for shelter, wood, and water, in all the British harbors of North
America. Both were suggested as important to our fisheries, in the
communications on that subject, whicn were transmitted to us with
our instructions. To the exception, of the exclusive rights of the
Hudson's Bay Company, we did not object, as it was virtually im-
plied in the treaty of 1783, and we had never, any more than the
British subjects, enjoyed any right there; the charter of that com-
pany having been grouted in the year 1670. The exception applies
only to the coasts and harbors, and does not affect the right of fishing
in Hudson's bay beyond three miles from the shores— a right which
could not exclusively belong to, or be granted by, any nation.
"It will also be perceived that we insist on the clause by which the
United States renounce their right to the fisheries, relinquished by
the convention, that clause having been omitted in the first British
counter projet. We insisted on it with the view — 1st. Of preventing
an implication that the fisheries secured to us were a new grant, and
of placing the permanence of the rights secured, and of those re-
nounced, precisely on the same footing. 2d. Of its being expressly
stated, that our renunciation extended only to the distance of three miles
from the coast. This last point was the more important, as, with the
exception of the fisheries in open boats within certain harbors, it appeared
from the communications above mentioned that the fishing ground on the
whole coast of Nova Scotia is more than three miles from the shore;
whilst, on the contrary, it is almost universally close to the shore on
the coasts of Labrador. It is in that point of view that the privilege
of entering the ports for shelter is useful, and it is hoped that, with that
provision, a considerable portion of the actual fisheries on that coast (of
Nova Scotia} will, notwithstanding the renunciation, be preserved."
But if, as the crown lawyers contend, we cannot fish in a single bay
of Nova Scotia, what did the American ministers mean, in the state-
ments which I have marked? Did they attempt to deceive an
Adams, on questions connected with the fisheries; or were they
ignorant of their duty? Neither; for Mr. Adams himself emphatically
and positively affirms their construction of the convention. Under
circumstances* highly interesting to his fame with this generation
and with posterity, he declared that this convention "secures essen-
tially and substantially all the rights acquired by the treaty of 1783;
it secures the whole coast fishery of every part of the British dominion,
excepting within three marine miles of the shores." What answer can
be made to this ?
Still again: If the crown lawyers are in the right, how does it
happen that we were in the uninterrupted possession of the very
bays in dispute for a quarter of a century? The fact is not doubted;
indeed, the attempt to dispossess us is the cause of the controversy.
Mr. Everett afforded Lord Aberdeen an opportunity — nay, invited
him — to explain this circumstance; but ins lordsnip declined to
reply. Durmg these twenty-five years, ships of the royal navy
annually appeared on the fishing grounds under special orders to
prevent aggressions; yet not one of them, prior to the capture of
* Controversy with Jonathan Russell.
1272 MISCELLANEOUS.
the Washington in 1843, ever seized an American vessel for merely
fishing within these bays!
It may be answered, however, that we were occupants without
title and by permission. But, says Blackstone, possession of lands,
"by length of time and negligence of him who hath the right, by
degrees ripens into a perfect and indefeasible title." As upon the
land, so upon the sea. A nation, says Vattel, " if it has once acknowl-
edged the common right of other nations to come and fish there,
can no longer exclude them from it. It has left that fishery in its
primitive freedom, at least in respect to those who have been in
possession of it."t
If these remarks and authorities are pertinent, what term is
necessary to give us a right to the common use of the bays of British
America by uninterrupted occupancy and possession? Lord Stanley,
in a despatch to Lord Falkland, as we have seen, considered that
we had "practically acquiesced" in the opinion of the crown lawyers,
because we did not protest against it in less than two years; and
it might seem that the "practical acquiescence" of the British
government for a period of twenty-five years previously was suffi-
cient to place us within the rule of the writers above quoted.
Especially since, after all, the true question in discussion is simply
whether we shall continue in the common use of waters to which we
have never ceased to resort from the peace of 1783; to which our
fathers resorted as British subjects before the dismemberment of the
empire; and to which we, as their descendants, have a claim for
services rendered to the British crown in the original conquest from
France.
If asked how the term "bays" is to be disposed of in the treaty, I
answer that it applies to such arms of the sea as on some coasts are
called coves and creeks, and was meant to designate all sheets of
water which are not six miles wide, and no others. That our ministers
acted upon information obtained from persons engaged in the fisheries
is certain, for the negotiation was suspended to obtain it; and we
may reasonably conclude that their informants spoke of these coves
or creeks by the popular name of bays. Any person with a mariner's
chart in his hand can observe that on the colonial coasts there is a
multitude of "bays," some of which are more, and many less, than
six miles wide at their mouths, or outer headlands. In fact, I know
of no coast where they are so numerous. To mention all, would occupy
more room than can be spared in this report. Mace's, St. Mary's,
Barrington, Liverpool, Malaguash, Mahone, Margaret's, Blind,
Tenant's, Pennant s, Chisselcook, Musquidoboit, Newton Quoddy,
Shoal, Tom Lee's, Nicomquirque, Nicomtan, and Dover, are a part
(though the most considerable) between the St. Croix and Cape
Canso alone. That it may be fully understood in what sense the
word "bay" is used in speaking of indentations of the coast at the
t Dr. Paley, in his Moral and Political Philosophy, states the principle far more
broadly. In chapter eleven, which is devoted to the "general rights of mankind."
he says:
"If there be fisheries which are inexhaustible — as, for aught I know, the cod-fishery
upon the Banks of Newfoundland and the herring fishery in the British seas are —
then all those conventions by which one or two nations claim to themselves, and
guaranty to each other, the exclusive enjoyment of these fisheries, are so many encroach-
ments upon the general rights of mankind." — Boston edition, 1821, p. 84.
MISCELLANEOUS. 1273
east, I give an example in the case of the Passamaquoddy, which in
itself is only a branch-bay of Fundy. In this small branch-bay,
then, in common language, are Cipp's, South, East, Rumsey's, Cobs-
cook, Strait, Friar's, Casco, and West Quoddy; and the Passama-
quoddy, after being thus minutely divided, takes the name of St.
Andrew's bay, northerly and westerly of Eastport. The term "bays"
is therefore a word of sufficient significance in the treaty, without
embracing bodies of wrater which are as large as many European seas,
and which are to be held in America as seas. I claim that our vessels
can enter them of right, and fish in them, and can enter and fish in
their branches, where the shore on either hand is more than three
miles distant. We renounced the right to fish in the bodies of sea-
water which are less than six miles wide at their entrance or mouths,
and in no others. That this is the true meaning of the convention is
apparent from the proviso of the renunciatory clause, which allows our
fishermen to enter "such bays or harbors for the purpose of shelter, and
of repairing damages therein, of purchasing wood, and of obtaining
water," &c. Now, as every practical man knows that neither of these
purposes is or can be accomplished in large open bays, it is certain that
while we renounced the right to fish in the small bays, we retained the
right to enter them in cases of distress and emergency. The bays
relinquished are of a description which allow of anchorage and shelter
in stormy weather; that actually afford safety during the days and
weeks which disabled vessels may occupy in repairs; that have
accessible forests, and springs or streams of fresh water. The idea
embraced is, that our vessels, in the cases specified, may run into any
and every indent of the coast; for the term "purchasing wood" sup-
poses a colonial owner, with a habitation on the shore, of whom fuel can
oe bought and paid for; and thus includes places which are inhabited.
Persons who are acquainted with the bold and rocky shores of the
large bays of British America — those of Chaleurs and Fundy, for
example — with the dense fogs which prevail there, with the frequent
and terrific gales, and with the fearful whirls and great rise and
fall of the tide, understand full well what was intended to be reserved
in the treaty, and the importance of the reservations. But such per-
sons never heard, and, I will venture to say, never will hear, of fishing
vessels, or of any class of vessels, effecting either of the purposes
mentioned in the proviso, while sailing broad in the great seas which,
in common language, are called bays. Yet these seas, in the opinion of
the crown lawyers, are only open to our vessels in cases of distress,
and when not one object for which they say we may lawfully enter
them can, in fact, be executed. An attempt to show that the Queen's
advocate, and her Majesty's attorney general, do not thus absurdly in-
terpret the convention, involves the admission that our vessels, once
across the line drawn three miles outside of the headlands, may seek
the small branch-bays within these seas; and so demonstrates the
accuracy of the construction which I have given; for then it follows
that the right to fish in the branch-bays only is renounced, inasmuch
as "such bays," after all, are the bays which afford the shelter, the ac-
commodation for repairs, and the wood and water, contemplated by
the convention.
"It is an established rule in the exposition of statutes," says Chan-
cellor Kent, "that the intention of the lawgiver is to be deduced from
a view of the whole and of every part of a statute, taken and com-
1274 MISCELLANEOUS.
pared together. The real intention, when accurately ascertained, will
always prevail over the literal sense of the terms." And he says
further, that "When the words are not explicit, the intention is to be
collected from the occasion and necessity of the law, from the mischief
felt, and the remedy in view; and the intention is to be taken or pre-
sumed, according to what is consonant to reason and good discretion."
If such is the fact with regard to municipal law, how much more im-
portant is the principal in the interpretation of treaties, which affect
the harmony and peace of nations ? I submit, then, that we have the
"intention" of Messrs. Rush and Gallatin, in their renunciation of the
right to fish in certain bays ; that the pretension of England, that the
war of 1812 had abrogated our entire rights, as provided in the treaty
of 1783, was the "occasion and necessity" for new stipulations on the
subject; that the opening conference between Lord Bathurst and Mr.
Adams, in 1815, shows, beyond all doubt, that fishing, by our country-
men, within the creeks and close upon the shores of the British terri-
tories, was the "mischief felt;" and that the exclusion of American
vessels from the common three-mile jurisdiction was "the remedy in
view," in the renunciatory clause of the convention. Nor can it be
urged that the relinquishment on our part of the boat or shore fisheries
was too inconsiderable an object to be so strongly insisted on by the
British government. I understand the value of these fisheries far too
well to allow any force to such a suggestion. The colonists, secure in
these, have vast treasures at their very doors. Oftentimes they have
but to cast, tend, and draw seines and nets, to take hundreds of barrels
of mackerel and herring in a single day; and years have occurred
when no less than forty thousand barrels of the former fish have been
caught hi a season, on a portion of the coast only twelve miles long.
As regards the shore fishery, for the kinds usually dried, that in the
region of Barrington is of itself a mine of wealth. Colonial fishermen,
here and elsewhere along the coast, may be at home after every day's
toil, and look out upon their American competitors in the offing, rejoic-
ing in advantages of pursuing their avocation in open boats, and the
consequent advantages of social life, and of fishing and of attending to
their little farms between "slacks of the tide," in "blowy weather,"
and when the fish "strike off."
The Queen's advocate and her Majesty's attorney general answer
Lord Falkland's fourth query as follows:
"By the treaty of 1818 it is agreed that American citizens should
have the liberty of fishing in the Gulf of St. Lawrence, within certain
denned limits, in common with British subjects; and such treaty does
not contain any words negativing the right to navigate the passage of
the Gut of Canso, and therefore it may be conceded that such right
of navigation is not taken away by that convention; but we have now
attentively considered the course of navigation to the gulf, by Cape
Breton, and likewise the capacity and situation of the passage of
Canso, and of the British dominions on either side, and we are of opin-
ion that, independently of treaty, no foreign country has the right to
use or navigate the passage of Canso ; and attending to the terms of the
convention relating to the liberty of fishery to be enjoyed by the Amer-
icans, we are also of opinion that that convention did not, either ex-
pressly or by implication, concede any such right of using or navigating
the passage in question. We are also of opinion that casting bait to
lure fish in the track of any American vessels navigating the passage,
MISCELLANEOUS. 1275
would constitute a fishing within the negative terms of the
convention."
This reply and the report* of the committee of the House of Assem-
bly of Nova Scotia will be considered together. The committee laud
the late Chancellor Kent, cite from his Commentaries, and aver that he
"agrees with the principles put forth by the law officers of the crown,
and which justify the conclusion that no foreign power, independent of
treaty, has any right to navigate the passage of Canso." It is not so.
The passage f which they quote from Kent relates to "an immunity
from belligerent warfare;" to ships of an enemy "hovering on our
coasts;" to the degree of "uneasiness and sensibility" we might feel,
"in the case of war between other maritime powers," were they to
"use the waters of our coast" for the purpose of cruising and of cap-
turing vessels. He gives no exact rule even in this respect. He gives
no exact rule in time of peace. He says that "the claim of dominion to
close or narrow seas is stul the theme of discussion and controversy ." He
then states the doctrine of several writers on international law, and
remarks that ' ' all that can reasonably be asserted is, that the dominion
of the sovereign of the shore over the contiguous sea extends as far as
is requisite for his safety and for some lawful end. A more extended
dominion must rest entirely upon force and maritime supremacy."
Now, it may be asked whether the "safety" of Nova Scotia demands
the closing of Canso; and whether the refusal of its use is for "some
lawful end." I am defending the rights of men in peace. I am
asking for a free sea when our fishermen are bound to and from the
distant scenes of their toil. I assume that they neither loiter nor
traffic; that they violate no municipal law; and that in no other way
do they harm or molest her Majesty's subjects. Perhaps the eminent
jurist, who is quoted so triumphantly against them, will sustain my
defence. We shall see. " Every vessel in time of peace," says the
same Chancellor Kent, "has a right to consult its own safety and con-
venience, and to pursue its own course and business, without being
disturbed, and without having violated the rights of others." Again,
he says: "As the end of the law of nations is the happiness and per-
fection of the general society of mankind, it enjoins upon every nation
the punctual observance of benevolence and good will, as well as of
justice, towards its neighbors. This is equally the policy and the duty
of nations." Still again: "No nation has a right, in time of peace, to
interfere with, or interrupt, any commerce which is lawful by the law
of nations, and carried on between other independent powers, or
between different members of the same state." Nor is this all.
" Every nation is hound, in time of peace, to grant a passage, for lawful
purposes, over their lands, rivers, and seas, to the people of other states,
whenever it can be permitted without inconvenience. "J Let us apply
these principles to the case before us. In passing through Canso,T>ur
fishermen consult their "safety and convenience." They promote
the "happiness" of mankind, for they are producers of human food.
Their "purpose is lawful," for the crown lawyers themselves admit
that the right of fishing in the Gulf of St. Lawrence is secured to them.
* Inserted in the historical notice of the controversy in this report, under date of 1851.
t Kent's Commentaries, edition of 1832, vol. 1, pages 29 and 30.
t These several quotations are from Kent, edition of 1832, pages 28, 29, 31, 32, 33,
and 34.
1276 MISCELLANEOUS.
A report on Canso has become a regular legislative duty in the
Assembly of Nova Scotia. The little colonial world will soon be
gratified with another labored effort to show that our countrymen
have "no right to pass through one of her Majesty's possessions." I
commend to the committee or 1853 the passages which I have quoted,
and which relate to the duties of nations in time of peace. I have the
presumption, too, to suggest to the Queen's advocate, and her
Majesty's attorney general, that though Selden was among the lights
of his age, and though his Mare Glausum was once high authority,
yet that since the progress of civilization has modified some, and
changed other, rules of international law, it is time that the old and
barbarous doctrine of exclusion from the navigation of internal
straits between the main land and islands, as applied to vessels under
sail, and making a direct voyage, ceased to distress the mariners of
one Christian country when within the jurisdiction of another. Two
centuries ago,* when Selden, and his great antagonist, Grotius, wrote
their celebrated treatises, it was the practice, under the public law, to
confiscate the debts due to the subjects of an enemy at the com-
mencement of hostilities ; to regard an enemy as an outlaw and as a
criminal, who had no right to hfe, even when unarmed and defence-
less ; to use poisoned weapons, employ assassins, violate females, and
sell prisoners into slavery; and to confiscate, as contraband, pro-
visions when in transitu to feed starving noncombatants and famish-
ing women and children. If the abstract right exist to close Canso
in time of peace against vessels under sail, it belongs to the same class
of inhuman rules of the international code. "The English," says
Montesquieu, "have made the protection of foreign merchants one of
the articles of their national liberty." I commend the sentiment
to the consideration of the English crown lawyers.
But let us take a practical view of the question before us. The
peninsula of Nova Scotia is bounded on the northeast by the strait, or
/gut," of which we are speaking, and is separated by it from the large
island of Cape Breton. To save the long, difficult, and at some times
of the year the dangerous voyage round this island, our vessels are in'
the constant practice of passing through Canso. The strait is lighted ;
and our flag contributes liberally to support all the light-houses on the
coast. The "light-money" exacted is, indeed, so enormous — the
benefit afforded considered — that our ship-owners complain of the
exactions continually.! It is apparent at a glance that the sailing of a
* Selden died in 1654; Grotius in 1645.
t The United States consul at Pictou, Nova Scotia, thus wrote to Mr. Forsyth, Secre-
tary of State, in 1839: "The tax of six and two- thirds cents per ton register of shipping,
collected by the province of Nova Scotia at the Strait of Canso, is levied on British ag
well as foreign ships; but it becomes a heavy charge on American vessels making four
or five trips a year to this port, in the coal trade; and as there is no impost on shipping
in American ports for the support of lights on the coast of the United States, such a tax
on American vessels in the ports of the British colonies involves a discrepance in the
terms of intercourse between the two countries, although it professes to be based on
strict reciprocity."
The Gloucester Telegraph, a paper which is authority on all matters connected with
the fisheries, contained the following article, August, 1852:
"LIGHT DUTY AT THE BAY. — One of the most grievous things which our fishermen
have to submit to at the Bay of St. Lawrence, is the payment of a light-duty. Our
vessels have for years been obliged to pay this duty at the Gut of Canso, which is a tax
upon the town of Gloucester alone of $1,000 a year. This year every vessel which
visits the harbor of Prince Edward Island is obliged to pay another tax, which is called
MISCELLANEOUS. 1277
vessel over the sea between Nova Scotia and Cape Breton can, of
itself, harm no one. This sea, be it understood, is very narrow, not
exceeding, in some parts, one mile in breadth.
Having thus stated the case, we will illustrate the doctrine main-
tained by the crown lawyers, by one exactly parallel in all its points.
The "McLane arrangement" in 1830, disposed of many of the diffi-
culties which, from the peace of 1783, had embarrassed our intercourse
with the colonies, and under its terms colonial vessels have freely used
the straits, passages, and harbors of our entire coast. Thousands of
these vessels visit our ports annually; and the "in-shore" voyage is
invaluable to them during the stormy and boisterous months of the
year. Every merchant engaged in navigation is aware that, as a class,
the small vessels built in Nova Scotia and New Brunswick are far
inferior to our own. To say nothing of the want of skill and sobriety
in some of the masters, and nothing of the weak and misshapen hulls
of many of the colonial craft, it may be remarked that a proportion of
such as are employed in the transportation of wood and gypsum are
fitted with the cast-off sails and cordage of timber-ships. To "dodge
along shore" is the only safe course for these vessels to pursue, as none
can deny. To allow them to do so, is but an act of common human-
ity. To deny them the "boon," would be to involve many in certain
destruction.
And now, suppose that the legislature of Maine should remonstrate
to our government on the subject, and insist that the people of that
State suffer great wrong, because colonial vessels, when bound to
Portland, Boston, and other northern ports, instead of keeping broad
off at sea, "hug the shore" and pass through Edgemaroggin and
Moosepeck Reaches, over Bass-harbor bar, through Fox Island
thoroughfare, and between Monhegan and the main land. Suppose,
too, that the legislatures of New York and Connecticut should join the
frontier State and demand the exclusion of British vessels from Long
Island Sound? Suppose, further, that finally the Attorney General of
the United States should submit an opinion to the President, in which
he should say that no stipulations giving the right to navigate these
straits and this sound exist, either in the treaty of 1783, in Jay's
treaty in 1794, in the treaty of peace in 1814, in the treaty of commerce
anchorage duty. As almost all of our vessels visit the island, this new duty about
doubles the tax upon them. And again, if any of our vessels are driven by stress of
weather into Miramichi, and some of the other ports on the main land, the anchorage
duty, light-duty, port charges, &c., &c., are put upon them to the amountof $20 more.
Now, is this right? The Nova Scotia vessels which visit our harbors are subjected
to port charges, amounting, for a vessel under one hundred tons, to only $4 50. Why
should our vessels, for merely passing through their waters, be subjected to so heavy
a tax, while their vessels who visit us for the purpose of trading have the benefit of our
light-houses, and only pay a trifling sum for port charges?
"It is said that the light-duty paid by our vessels is for the support of their light-
houses. But what are those light-houses? There are two poor hgnts at the Gut of
Canso, but none on the coasts visited by the fishermen, except, we believej at Gaspe.
There is no light on the whole northern coast of Prince Edward Island, which ia most
visited by our fishermen during the stormy months of September and October, when
the lights are most needed. Our fishing-vessels alone pay light-duty sufficient to
have the coast well lighted.
"The officers who collect these duties admit that they are unjust: but still they say
their government must impose them. And how are they collected? The officers at
the island offer to take most anything when the captain hesitates about paying the
specie; they will take molasses, pork, and even oil clothes! This is a nice way to
smuggle in the goods."
1278 MISCELLANEOUS.
in 1815, in the convention of 1818, in the McLane arrangement in
1830, or in the last, the treaty of Washington in 1842; who would fail
to. see the inhumanity— nay, the outright wickedness — of the whole
proceeding? Yet, were all this to be done, they would do no more
than has actually been done by the political leaders of Nova Scotia
and the crown lawyers of England. As a matter of right, the British
colonists can be treated precisely as they require the government of
England to treat us. If — as they aver, and quote international law to
prove — the Strait of Canso is not o'pen to our vessels under sail and
passing to and from the Gulf of St. Lawrence, then, and for the same
reasons— geographical and political — the "reaches," sounds, straits,
and "thoroughfares" along the coast of the United States, are not
open to them. Can this position be denied?
In reply to Lord Falkland's fifth query, the law officers of the crown
say: "With reference to the claim of a right to land on the Magdalene
islands, and to fish from the shores thereof, it must be observed that,
by the treaty, the liberty of drying and curing fish (purposes which
could only be accomplished by landing) in any of the unsettled bays,
&c., of the southern part of Newfoundland, and of the coast of Labra-
dor, is specifically provided for; but such privilege is distinctly nega-
tived in any settled bay, &c. And it must therefore be inferred that,
if the liberty of landing on the shores of the Magdalene islands had
been intended to be conceded, such an important concession would
have been the subject of express stipulation, and would necessarily
have been accompanied with a description of the inland extent of the
shore over which such liberty was to be exercised, and whether in
settled or unsettled parts; but neither of these important particulars
is provided for, even by implication. And that, among other con-
siderations, leads us to the conclusion that American citizens have no
right to land or conduct the fishery from the shores of the Magdalene
islands. The word 'shore7 does not appear to be used in the conven-
tion in any other than the general or ordinary sense of the word, and
must be construed with reference to the liberty to be exercised upon
it, and would therefore compromise the land covered with water as far
as could be available for the due enjoyment of the liberty granted."
Will these learned gentlemen explain why the word "shores" is used
in the convention in connexion with the right which we enjoy at these
islands, while the terms "coast" and "coasts" are employed when de-
fining our rights at Newfoundland and Labrador? The reason is very
obvious to practical men. The Newfoundland and Labrador fisheries
are coof-fisheries : the principal Magdalene fishery is a herring-fishery.
The "shores" of the Magdalene islands are not wanted for the purpose
of "drying and curing fish," as the crown lawyers seem to suppose,
but for using nets and seines. With all deference, then, their argument
is not sound. The right to use the implements employed by British
subjects at these islands is indispensable to our success in the herring-
fishery there. The herring is never split and dried like the cod, nor is
it cured on the shores of the Magdalenes. Hence there are no conclu-
sions to be drawn from a statement of the limitations of "drying and
curing" in the cod-fishery on other and distant coasts. Yet this is the
reasoning by which we are to be deprived of the right to land and fish
on the shores of the Magdalene islands. But I insist that the change of
the terms "coast" and "coasts" to "shores" was meant to give the
precise right which it is urged we cannot enjoy. To have said, in the
MISCELLANEOUS. 1279
convention, that we might take fish on the coast and coasts of these
islands, as really is said when speaking of the cod-fishery, would have
been a vain use of words; but since the ^ernn^-fishery requires the
use of shores, and without the use of shores cannot be prosecuted in the
common way, the reason why the term was used in relation to that
fishery is too manifest to need further illustration.
Still, as it is argued that, "if the liberty of landing on the shores of
the Magdalene islands had been intended to be conceded, such an im-
portant concession would have been the subject of express stipula-
tion," &c., it may not be amiss to consider the suggestion. And I
reply that, if "a description of the inland extent of the shore over
which" we may use nets and seines in catching the herring is neces-
sary, it is equally necessary to define our rights of drying and curing
the cod elsewhere, and as stipulated in the convention. Both are shore
rights, and both are left without condition or limitation as to the
quantity of beach and upland that may be appropriated by our fisher-
men. It was proclaimed in the House of Commons, more than two
centuries ago, by Coke — that giant of the law — that "FREE FISHING"
included "ALL ITS INCIDENTS." The thought may be useful to the
Queen's advocate and her Majesty's attorney general when next they
transmit an opinion across the Atlantic which is to affect their own
reputation and the reputation of their country. The right to take
fish "on the shores of the Magdalene islands," without conditions
annexed to the grant, whatever these profoundly ignorant advisers of
the crown of England may say to the contrary, includes, by its very
nature and necessity, all the "incidents" of a "free fishery," and all
the privileges in use by and common among fishermen, and all the
facilities and accommodations, on the land and on the sea, which
conduce to the safety of the men employed in the fishery, and to an
economical and advantageous prosecution of it.
We have cause of thankfulness, however, that we possess the right
to do at least one thing, under the convention, without bein<* liable to
the pains and penalties of her Majesty's court of vice-admiralty. The
sixth query of Lord Falkland is answered in our favor, and as follows :
"By the convention, the liberty of entering the bays and harbors of
Nova Scotia, for the purpose of purchasing wood and obtaining water,
is conceded in general terms, unrestricted by any condition, expressed
or implied , limiting it to vessels duly provided at the commencement
of the voyage; and we are of opinion that no such condition can be
attached to the enjoyment of the liberty."
But Lord Falkland is not to be excused for proposing the inquiry.
That his question may not be lost sight of, (though once inserted,) it is
here repeated. ''Have American fishermen," he asked, "the right to
enter the bays and harbors of this province, [Nova Scotia,] for the
purpose of purchasing wood or obtaining water, having provided
neither of these articles at the commencement of their voyages in their
own country; or have they the right only of entering such bays and
harbors in cases of distress, or to purchase wood and obtain water
after the usual stock of those articles for the voyage of such fishing
craft has been exhausted or destroyed?"
Did his lordship really believe that our fishing vessels ever, and
under any circumstances, depart from home "without providing"
wood and water? But, on the supposition that they always do malte
a voyage of three hundred miles with stocks of neither, what then?
1280 MISCELLANEOUS.
Common charity might dictate that their improvidence should not be
punished with an interdiction against procuring articles of so indis-
pensable necessity at the earliest possible moment. Lord Falkland
fives hi the middle of the nineteenth century: he is a British peer: he
is yet the governor of a British colony : he is the husband of a daughter
of a British king: and he never should have said, substantially, that
an American fisherman, when found in a British colonial harbor bar-
gaining with a subject of her Majesty for a boat-load of fuel, or craving
leave to fill his water-cask at a well, or presuming to dip a few gallons
from a running brook, would be adjudged a lawful prize, unless able
to prove to her Majesty's judges of vice-admiralty that the "usual
stock of those articles for the voyage" had been "exhausted or
destroyed."
The sixth query was, however, necessary to complete the series, and
illustrate the spirit of the whole. The seventh and last answer requires
no comment, as it merely announces that —
' ' The rights of fishery ceded to the citizens of the United States, and
those reserved for the exclusive enjoyment of British subjects, depend
altogether upon the convention of 1818, the only existing treaty on
this subject between the two countries ; and the material points arising
thereon have been specifically answered in our replies to the preceding
queries."
That this opinion is not conclusive against us, and that, indeed, it
has no binding force whatever, hardly need be said; especially since
there is probable cause to believe that it was paid0 for in the common
course of professional duty. But whether the Queen's advocate and
her Majesty's attorney general did or did not appear hi the "case"
submitted to them as the counsel of Nova Scotia, is a matter of no
moment to us. The judgment which they have rendered, and the
examination of which is now concluded, deserves no respect either for
its law, its common sense, its humanity, or its justice. Its only claim
to the notice bestowed upon it consists hi the fact that it is relied on to
prove that we are in the wrong and England in the right, in the contro-
versy which has arisen as to the intent and meaning of the convention
of 1818.
We are now ready to inquire what, up to 1841, was the British con-
struction? First, however, let us glance at the British pretension
prior to the concluding of the convention. In 1817, in the orders of
Admiral Milne to Captain Chambers, under which several American
vessels were seized, it is said: "On meeting with any foreign vessel
fishing or at anchor in any of the harbors or creeks in his Majesty's
North American provinces, or within our maritime jurisdiction, you
will seize," &c. Here is the extent of the British claim. Captain
Chambers, hi reporting his doings to his commander-in-chief , remarked
that he ' ' did not receive any intelligence of foreign vessels being within
our jurisdiction until the 3d instant," (June 3, 1817,) when he was
informed "that they constantly resorted to the creeks on this coast in
order to catch their bait, clean their fish, wood, water, &c." The
harbors of Cape Negro and of the Ragged Island, he said further, were
visited by such vessels; and in these harbors and for resorting to these
harbors he captured eleven American fishermen.
<*When Lord Falkland solicited Lord John Russell to submit his queries, he said: "I
am authorized by the House of Assembly here to defray any expense that may be
incurred in obtaining such opinion," &c.
MISCELLANEOUS. 1281
The bodies of sea-water of more than six miles in width were not
claimed, then, in 1817, and pending the negotiations; and Admiral
Milne acted hi strict conformity to Lord Bathurst's suggestion to Mr.
Adams in 1815, that we must relinquish "the harbors and creeks," and
the ' ' maritime jurisdiction three marine miles from the shore." If the
construction of the crown lawyers is just, it follows that the conven-
tion in 1818 is an injury rather than a benefit, for the simple reason
that previous to that year we were allowed to fish hi the bays which,
it is pretended by these gentlemen, we cannot enter under the stipula-
tions of that instrument.
What, in the second place, has been the course pursued since 1818?
Some of the colonial writers have affirmed during the present year,
(1852,) that the act of Parliament of 1819 (cited hi this report) asserts
the British construction as now maintained. It is not so. The act
does indeed recite the first article of the convention, and was passed
in consequence of it; but it does not contain a word which defines the
term "bays," or which indicates the manner of measuring the three-
mile interdiction. It authorizes the seizure of vessels that should
violate its provisions. The proceedings of British naval officers on the
American stations, who have always been furnished with a copy of the
act, and with a copy of the convention, and whose orders from the
Lords of the Admiralty have always been founded on both, will enable
us to ascertain whether or not the ships-of-war have allowed our vessels
to fish anywhere and everywhere, hi the bays and outside of the bays,
more than three miles from the shore.
While my home was on the eastern frontier, hardly a year passed
without my seeing one or more ships of the royal navy which were em-
ployed on this service in the Bay of Fundy; and I am sure that a
case of seizure for "fishing broad" in tnat bay never occurred
previous to the year 1843. Even Captain Hoare, of the Dotterel,
who, as we have seen, spread consternation among our fishermen in
1824, and subsequently, informed Admiral Lake, his commander-in-
chief , that his orders to the officers in command of his armed boats
had been to capture only such American vessels as "they found
within three marine miles of the shore," and to except those "in
evident distress, or in want of wood and water." The same was
observed elsewhere. The report of Captain Fair, of her Majesty's
ship Champion, in 1839, shows that he passed through a fleet of six
or seven hundred American vessels in various positions — some within
the headlands of the bays, and some along the shores; but none
within the three-mile interdiction. His frank declaration on the
subject is honorable to him. While cruising in the vicinity of Prince
Edward Island he states that there was not "a single case which
called for our interference, or where it was necessary to recommend
caution; on the contrary, the Americans say that a privilege has
been granted them, and that they will not abuse it." Tnat, in allow-
ing several hundreds of our fishermen to pursue their avocation with-
out molestation, his conduct was in accordance with his instructions,
we have positive evidence; for Lieutenant Paine, who visited the
fishing grounds the same year in command of the Grampus, stated
after his return, in a letter to the Secretary of State, that the orders of
"Admiral Sir Thomas Harvey, as he informed me, were only to pre-
vent" our countrymen from "fishing nearer than three miles." But
92909°— S. Doc. 870, 61-3, vol 3 42
1282 MISCELLANEOUS.
the authorities of Nova Scotia, said Lieutenant Paine, "seem to claim
a right to exclude Americans from all bays, including those large
seas — such as the Bay of Fundy and the Bay of Chaleurs; and also
to draw a line from headland to headland, the Americans not to
approach within three miles of this line."
Here, then, two years before the crown lawyers gave the opinion
under examination, is our first knowledge of the "headlands." It
was but whispered even in 1839. The naval officers knew nothing
about it. Our government knew nothing about it until 1841, when
Mr. Forsyth, in a despatch to Mr. Stevenson, our envoy to the Court
of St. James, called his attention to it. "From the information in
the possession of the department," he observed:
"It appears that the provincial authorities assume a right to ex-
clude American vessels from all their bays, even including those of
Fundy and Chaleurs, and to prohibit their approach within three
miles of a line drawn from headland to headland. These authorities
also claim a right to exclude our vessels from resorting to their ports
unless in actual distress, and American vessels are accordingly warned
to depart, or ordered to get under weigh and leave a harbor, whenever
the provincial custom-house or British naval officer supposes, with-
out a full examination of the circumstances under which they entered,
that they have been there a reasonable time."
As yet, however, the colonists had not ventured to enforce the pre-
tension they had set up. Lord Falkland, in a despatch to Lord Stan-
ley dated in May, 1841, affirms this; for he says:
"In point of fact I have not been able to learn that any seizures
have been made when the vessels have not been within three miles of
the distance prescribed by the statute, or considered so to be, although
it is true that the Bay of Fundy, as well as smaller bays on the coast
of this province, is thought by the law officers in the province to form
a part of the exclusive jurisdiction of the crown."
Besides, how happens it that if the "King's most excellent Majesty,
by and with the advice and consent of the Lords spiritual and tem-
poral and Commons" in Parliament assembled, meant to exclude —
and by the act of 1819 actually did exclude, as far as the action of
one government could do so — our vessels from the bays now in dis-
pute; how happens it, I ask, that in 1841, twenty-one years after-
wards, the queries of Lord Falkland before us were submitted to the
crown lawyers? On the ground that Parliament had already con-
strued the convention as his Lordship desired that it should be inter-
preted, why did not the British minister to whom these queries were
transmitted so state in reply? The act of 1819 was the supreme law
of the realm; and if the commanders of the ships of the royal navy on
the American station had been instructed year after year, ana for
twenty-one years, to execute it, and to consider it as a construction
of the convention in the sense now contended for, why were every
one of these commanders so very unfaithful to their duty? Why was
the fact that their orders from the admiralty required them to hunt
up and to drive out all American fishermen from these bays unknown
to everybody, in England and America?
Three years previously (1838) Lord Glenelg, the Secretary for the
Colonies, in a communication to Sir Colin Campbell, lieutenant gov-
ernor of Nova Scotia, in answer to a joint address to the Queen from
MISCELLANEOUS. 1283
the Legislative Council and House of Assembly of that colony, com-
plaining of the habitual violation by American citizens of the con-
vention of 1818, promises that an armed force shall be kept, annually
on the fishing grounds; and states that "her Majesty's minister at
Washington had been instructed to invite the friendly co-operation
of the American government" to enforce a more strict observance
of that convention. Here was a very proper opportunity to refer
to the provisions of the act of Parliament of 1819, and to give our
government Lord Glenelg's construction of it. But instead of this,
he tempers the expectations of the colonists by saying, that "The
commanders of these vessels will be cautioned to take care that, while
supporting the rights of British subjects, they do not themselves
overstep the bounds of the treaty."
Lord Aberdeen, April, 1844, in a letter to Mr. Everett, adopts the
opinion of the crown lawyers. This, I suppose, was the first unquali-
fied official avowal to a functionary of our government of the head-
land construction of the convention. His lordship, in March, 1845,
in another communication addressed to Mr. Everett, reaffirms this
construction, and distinctly states that with reference to the Bay of
Fundy and the other bays on the British American coasts, " no United
States fisherman has, under that convention, the right to fish within
three miles of the entrance of such bays as designated by a line drawn
from headland to headland at that entrance."
Our right, therefore, to the bays in dispute rests upon the British
interp rotation of the treaty, as well as our own.
Nor are we unsupported by colonists. Some, with great fairness,
admit all that we claim. Two examples will suffice. A respectable
colonial newspaper, in commenting, in 1845, upon Lord Stanley's
despatch of March 30, of that year, which, it will be remembered,
opens the Bay of Fundy, objects to the measure on the ground that
our privileges we're already ample: for, it remarks, "in the conven-
tion of 1818, it is stipulated tnat the citizens of the United States
shall be allowed to fish within three nautical miles around all our
coasts;" that instrument, it argues, "should have reserved to us
[to British subjects] the quiet and undisturbed possession of our bays
and inlets." The article from which this extract is made is able, and
was copied into several other colonial newspapers.*
* Some of the colonial newspapers still maintain similar views. The St. John New
Brunswicker said, in August, 1852, in commenting on Mr. Webster's despatch or proc-
lamation," that " it will be seen that Mr. Webster labors under the impression that her
Majesty's government are about to enforce the convention strictly, according to the
opinions of the law officers of England. We believe that such is not the case. For
some years past there has been a tacit understanding that American fishing vessels should
only be excluded from those bays or inlets of our coasts which were less than six miles wide,
and within which American vessels could not fish unless within three miles of the land,
either on the one side or the other. There is not the slightest necessity for straining
the terms of the convention, for it is notorious that American fishing vessels pursue
everywhere near the shores of these provinces, within three miles of the land, where
only in the autumn they get the best fishing; and it is to prevent this flagrant and
acknowledged breach of the convention that the present movements are taking place."
The St. John News, in the same month, disavowed the new construction of the con-
vention in these words:
" Now all this tempest in a tea-pot amounts to just nothing at all, and we think the
American press will find out before a very great while that they have been wasting their
powder, and getting nothing in return but pity for their ignorance. They will lonrn
that the legislatures of these provinces have not attempted to give a new reading to the
1284 MISCELLANEOUS.
The second instance is from the letters of the Hon. G. R. Young
(a distinguished gentleman of Nova Scotia) to Mr. Stanley.*
"As early as the month of March," wrote Mr. Young, "if any
stranger approached the coasts of Nova Scotia, his observations
woulu induce him to believe that he was advancing to the territory
of some great commercial state. At a short distance from the shore,
and on the banks and most productive fishing grounds, he would per-
ceive fleets or continuous lines of small shallops; and if the day and
season were auspicious, he would discover that their crews were
busily employed in drawing forth the treasures of the deep. Seeing
them thus anchored within view, nay, within almost the shadow of the
shore, and employed in appropriating the resources which woula ap-
pear to belong to it, the deduction would be irresistable that they had
recently left the neighboring harbors, and were manned by their
inhabitants. He would, however, be in error. On inquiry he would
learn that they have come a distance of three hundred miles, to avail
themselves of the privilege — that they belonged to a rival state, and that
they enjoyed the right by virtue of a treaty, which the government have
bestowed without necessity and without return. He would learn, also,
that this liberal concession was highly disadvantageous to the inhab-
itants on the coast by lessening the productiveness of the fishing
grounds."
That the ministry consented to act on the opinion of the Queen's
advocate and her Majesty's attorney general, with much reluctance,
is very obvious. The first proof is found in their delay in transmitting
it to the colonial governor who furnished the "case" on which it is
founded. In the despatch which accompanied it at last, Lord Stan-
ley remarks that "the subject has frequently engaged the attention
of myself and my collegues, with the view or adopting further meas-
ures, if necessary, for the protection of British interests in accordance"
therewith. But he adds: "We have, however, on full consideration,
come to the conclusion, as regards the fisheries of Nova Scotia, that
the precautions taken by the provincial legislature appear adequate
treaty — neither has England; that they do not refuse to American fishermen the privi-
lege of taking fish in the Bay of Fundy ; whether right or wrong, is another thing.
' ' All that we intend to do is nothing more nor less than we have been doing for the last
thirty years — and that is, to seize vessels caught within three miles of the shore, taking
fish contrary to the treaty, as thoroughly under stood both by England and America, and
also by the fishermen themselves. Whenever it can be shown that an American vessel
has been taken outside of the prescribed limits, then it will be time enough for our
neighbors to get in a pucker."
A newspaper published at Charlottetown, Prince Edward Island, (also in August,
1852,) in an article in answer to the question ' ' Is war probable? " advocates the policy
of permitting the Americans to have access to the colonial shores, and remarks: " But
a very pretty quarrel with America is by no means improbable, if our cruisers insist on
capturing all Yankee fishing vessels nearer the shore than three miles outside of a line drawn
from opposite headlands of a bay. Notwithstanding the opinion of the English crown law
officers, this interpretation of the treaty mil throw the argument entirely into the hands oj
the Americans. If the headlands be low, or the bay wide, like the entrance to the Bay
of Chaleur, it is not possible for the fishermen to know, or to estimate, their true posi-
tion in regard to those headlands. The horizontal line of vision, from the deck of a
schooner, is intercepted by the convexity of the earth at a distance of six or eight miles.
It is not to be concealed that a capture made, or a shot fired, under these circumstances,
might produce war. And if war be the result, can Britain rely on the hearty co-opera-
tion of the provincials? Exceedingly doubtful. Will the Canadians submit to have
their flourishing towns and villages destroyed, and their families slaughtered, in order
to protect a fow unprofitable fisheries in the Gulf of St. Lawrence?"
* Now the Earl of Derby.
MISCELLANEOUS. 1285
to the purpose, and that being now practically acquiesced in by the
Americans, no further measures are required." The opinion thus
disposed of in November, 1842, was suffered to rest until the capture
of the Washington and the Argus. Mr. Everett's arrangement in
1845 was, in effect, an abandonment of the whole matter.
Seven years of comparative quiet on the fishing grounds elapse, and
we are brought to the exciting events of 1852.
There is another remarkable circumstance connected with this con-
troversy, which should not escape notice — namely, that New Bruns-
wick, Prince Edward Island, and Canada, up to the time of the
Toronto agreement in 1851, remained almost passive spectators of the
belligerent attitude of their sister colony of Nova Scotia. The sub-
ject of "American aggressions" — as we have shown — has been one
of profound interest to the last mentioned dependency of the crown
for a long period. To find commiseration neither at home nor
abroad, is a grievance hard to be borne. To show, year after year,
and for an entire generation, in petitions to the throne, in legislative
reports, and in newspaper essays, that the most ruinous consequences
had resulted, and would continue to follow the permission to Ameri-
cans to pass through the Strait of Canso, and to fish in the bays of
British America, and yet, after all, to awaken no sympathy on the
part of fellow-colonists, and no determined action on the part of the
ministers of the Queen, is a misfortune which even the aggressors
themselves are bound to appreciate.
But I may say that fishermen, without treaty stipulations to favor
and protect them, have sometimes fared far better than it is possible
for ours to do, if the views of the crown lawyers are carried out in
their most obvious sense.
The fishermen of almost every civilized nation have pursued their
business either on implied or written sanctions. They have been per-
mitted to follow their calling even in war. The hostile relations be-
tween England and Holland — though the ocean was stained with the
blood of the subjects of each for several generations — did not, except
in particular cases and for short periods, break up the Dutch fishery
on the English coast. In the war of our own Revolution, "rebels"
though we were, Berkeley, of the Scarborough frigate, while occupy-
ing the Piscataqua, allowed the fishermen or that river free pass, out
and in; and so, too, Admiral Digby, moved with compassion for the
sufferings of the people of Nantucket, gave them written permits to
resume whaling; and the fact that a vessel* thus protected by his
humanity was the first to bear pur new-born flag to the Thames, and
to draw out all London to see it, will be remembered, perhaps, when
the records of battles shall be torn and scattered.
Nor did the war of 1812, with all the desolation and bad feeling
which it caused, form an exception to the rule so commonly observed.
I refer for instances to the passports of Admiral Hotham to the people
of Nantucket; to the permissions granted by Sir George Collier to all
fishing-boats and vessels under thirty tons; and to the ordinary and
almost universal practice of British commanders along our coast, of
allowing the taking of fish to be carried to our towns and cities, and to
*Her arrival was announced in Parliament. Mr. Hammet said he " begged leave to
inform the House of a very recent and extraordinary occurrence." After stating the
name — "the Bedford, Mooree, master" — he adds, she "wears the rebel colors, and
belongs to the island of Nantucket, in Massachusetts."
1286 MISCELLANEOUS.
be consumed fresh. And yet, our public and private armed ships, as
these very officers knew, were manned in a good measure by the class
of men to whom these indulgences were granted. How many in the
same service with Digby, Hotham, and Collier are there now in com-
mission, who will "crowd sail alow and aloft" to hunt up and drive
out such of our fishermen as shall continue to visit the "bays" inter-
dicted in consequence of colonial importunities and representations,
by the present prime minister of England, while holding the office of
Secretary for the Colonies ?
In the course of frequent researches among state papers, I do not
remember to have seen a public document of such a singular character
as his lordship's despatch to Lord Falkland. The American people
are distinctly told in it that colonial interference has alone prevented
the home government from executing a determination already formed
to put an end to all difficulties on the fishing grounds within British
jurisdiction. How often has it happened that an English statesman,
while assuming the political responsibility of an act, has cast the moral
responsibility of it upon the subjects under his special care? When
has a secretary for the colonies made known to the world that the
representations of colonists have set aside the "intentions" of the
cabinet ministers of the crown? I do not ask how often colonial
remonstrances have actually prevailed with the ministry; but how
frequently has colonial opposition to a course of policy been avowed
by ministers as their reason for a change of purpose ? The common
form of announcing a cabinet decision is not that employed by Lord
Stanley, in his despatch of March 30th to Sir William Colebrooke;*
still that decision was deemed honorable and liberal. The motive
there stated for opening the Bay of Fundy is, "the removal of a fertile
source of disagreement" between the United States and Great Britain.
But in the despatch to Lord Falkland, of September 17th, though the
same inducements existed in full force for her Majesty's government
to execute the "intention" of opening the other "bays" to our fisher-
men in order to perfect and perpetuate harmonious feeling, yet that
"intention was abandoned" on account of Lord Falkland's "state-
ments."
*This document has not been previously inserted. It bears date March 30, 1845, and
is addressed to Sir William Colebrooke, lieutenant governor of New Brunswick. It was
the first official annunciation to the people of that colony of the arrangement with Mr.
Everett. The colonial newspapers commented upon the course of the ministry in
terms of great severity, directly, and for some time after its publication.
"Sis: I have the honor to acquaint you, for your information and guidance, that her
Majesty's government have had under their consideration the claim of citizens of the
United States to fish in the Bay of Fundy — a claim which has hitherto been resisted on
the ground that that bay is included within the British possessions.
"Her Majesty's government feel satisfied that the Bay of Fundy has been rightly
claimed by Great Britain as a bay within the treaty of 1818; but they conceive that the
relaxation of the exercise of that right would be attended with mutual advantage to
both countries: to the United States as conferring a material benefit on their fishing
trade, and to Great Britain and the United States conjointly and equally by the re-
moval of a fertile source of disagreement between them. It has accordingly been
announced to the United States government that American citizens would hencefor-
ward be allowed to fish in any part of the Bay of Fundy, provided they do not
approach, except in the cases specified in the treaty of 1818, within three miles of the
entrance of any bay on the coast of Nova Scotia or New Brunswick.
"I have, &c.,
"STANLEY."
MISCELLANEOUS. 1287
This despatch has been once quoted; but since it should be con-
tinually kept in view, it may be cited again:
"DOWNING STREET, September 17, 1845.
"Mr LORD: ***** Her Majesty's government have at-
tentively considered the representations contained in your despatches,
Nos. 324 and 331, of the 17th June and the 2d July, respecting the
policy of granting permission to the fisheries of the United States to
fish in the Bay of Chaleur, and other large bays of a similar character
on the coast of New Brunswick and Nova Scotia; and, apprehending
from your statements that any such general concession would be inju-
rious to the interests of the British North American provinces, we
have abandoned the intention we entertained upon the subject, and
still adhere to the strict letter of the treaties which exist between
Great Britain and the United States, relative to the fisheries in North
America, except so far as they may relate to the Bay of Fundy, which
has been thrown open to the North Americans under certain restric-
tions."
There are fish enough in the American seas for all who speak the
Saxon tongue — for all of the Saxon stock. England, we may hope,
will not maintain a position so likely to produce troubles like those of
olden time which existed between us, as colonists, and the French,
and of which I have elsewhere spoken. Fishermen are but poor
interpreters of international law and of unreal and fictitious distinc-
tions. To them, the open sea, the great " bays, " are but one — but a
continuous fishing ground; and few of them, I apprehend, will ever
see or respect the lines which colonial ingenuity nas "drawn from
headland to headland" of these "bays."
I conclude the topic with expressing the conviction — to which all
practical men will assent — that, if the new construction of the conven-
tion of 1818 be persisted in and actually enforced, we shall lose quite
one-third of our cod and mackerel fisheries. Let not our colonial
brethern press us too far. Self-conquest is the noblest of all victories ;
and, in all kindness, let them be urged to subdue their hatred of "the
Yankees." The children of the whigs of a former day demand free
access to all the seas of British America. They require the use of
every sheet of sea-water six miles wide all around the colonial coasts —
not oy courtesy, but as a matter of right; and they will be satisfied
with nothing less. The attempt to exclude them has already caused
much unneighborly feeling, and, if continued, will occasion wrangling
and quarrelling on the fishing grounds. The end, no one is wise
enougn to foresee.
The colonists have toiled a whole generation to move the British
government to "protect them from the aggressions of the Americans. "
They have apparently, and for the moment, accomplished their object.
But will they themselves catch a fish the more, or become a single
guinea the richer, in consequence of the opinion of the crown lawyers
and of Lord Stanley's two despatches? They have achieved a state-
paper victory, at the expense of right and of humanity. Some of our
countrymen have neither the money nor the credit to procure and fit
out the class of vessels required in the Newfoundland and Labrador
fisheries, and are compelled by the necessities of their position and
condition to resort, in the smaller craft, to the coasts of New Bruns-
wick and Nova Scotia to earn subsistence. Exclusion to such, is a
1288 MISCELLANEOUS.
great wrong. Nay, it is a wrong to colonists themselves, and to hun-
gry and starving women and children, whom they always meet on par-
ticular parts of the colonial coasts when making their "spring fare,"
and whose necessities they seldom refuse to relieve, even to their own
deprivation. The fact is not to be disputed. Nor is this all. Our
fishermen are often of service in other respects. I have room for but
a single instance. In a gale, in 1845, at Shippigan* — within one of
the interdicted "bays," be it remembered — upwards of one hundred
British fishermen, exposed to the fury of the storm in open boats, were
preserved from deatn by the courage and exertions or the Americans
there, who were fishing in decked vessels.
The act of Nova Scotia, passed in 1836, claims our attention. Un-
der this law an American vessel "preparing to fish" within three miles
of the coast is liable to be forfeited; the owner or claimant of such vessel,
in case of seizure for an alleged violation of this or of any other provision
of the law, is required to sJiow that there was no ground of seizure or to pay
treble costs; the owner or claimant is also compelled to appeal from the
seizing officer to the admiralty court, and try his action there within
three months, or to lose all remedy; the owner or claimant is compelled
to give one month's notice of his intention to contest the legality of the
seizure, and to embody in such notice every fact and circumstance on
which he means to rely to prove the seizure without good cause, ana
to show, before trial, that the seizing officer has been notified in form
and within the time prescribed. The seizing officer, on the other
hand, may inflict the most wanton injury, and escape unharmed.
The 13th section provides, "that in case any information or suit shall
be brought to trial on account of any seizure made under this act, and
* This gale was on the 18th of July. The Miramichi Gleaner, of August 9, thus spoke
of it and of the unknown humane American captains: "On the 18th ultimo this place
was visited with one of the most fearful gales ever remembered by the oldest fisherman.
On the morning of that day the wind blew lightly from the southwest, and the appear-
ance of the day so fine that every boat belonging to Shippigan, Carraquet, and Miscow,
put off for the fishing grounds, with every prospect of a fine catch. Up to this time not
a cloud was to be seen, and the horizon gave no indication of an approaching storm,
when about 10 a. m. the wind veered round to the northwest and blew a perfect hurri-
cane. The violence of the wind carried everything before it; schooners, boats, and
flats were upset and driven on shore. Amongst the boats which had proceeded to sea,
fear and consternation prevailed. They had no alternative but to weigh anchor and
be driven before it off the land; the sea was running mountains-high, and as, from the
violence of the wind, they were unable to carry sail, every succeeding sea threatened to
engulph their tiny barks. By this time they had lost sight of land, when, fortunately,
some American schooners, fishing for mackerel on the Bradille and Orphan banks, hove
in sight, and, on seeing the perilous situation of the boats, these humane men imme-
diately got under weigh and stood towards them. As the gale was increasing, and the
schooners considerably to leeward, they signalled them to bear down, and by skill and
good seamanship happily rescued every soul on board, and made fast as many as possi-
ble to the schooners, and directed their men to anchor the remainder on the banks and
leave them to their fate. By this noble act every soul, amounting to one hundred, was
saved. On Saturday, after the violence of the gale had somewhat subsided, the schoon-
ers stood in for the shore and landed the men and boats in safety. A small vessel was
immediately procured and despatched in search of the boats which had been left at
anchor on the bank at Miscou island, (twelve in number,) and, strange to say, found
them all safe. As some of the men had lost their clothes, the American captains gener-
ously distributed a quantity of wearing apparel amongst them.
''One of the strange captains reports, that at the commencement of the gale he per-
ceived several boats laboring heavily, and bore up to render some assistance, but as
they disappeared suddenly it is feared they have all gone down; it is supposed they
belonged to the Canada side. It is much to be regretted that neither the names of the
schooners nor of the captains are known here, in order that they may be publicly
thanked.
MISCELLANEOUS. 1289
a verdict shall be found for the claimant thereof, and the judge or court
before whom the cause shall have been tried shall certify on the record
that there was probable cause of seizure, the claimant shall not be en-
titled to any costs of suit, nor shall the person who made such seizure be
liable to any action, indictment, or other suit or prosecution, on account
of such seizure; and if any action, indictment, or other suit or prosecu-
tion, shah1 be brought to trial against any person on account of such
seizure, wherein a verdict shall be given against the defendant, the
plaintiff, besides the thing seized, or the value thereof, shall be entitled
to no more than twopence damages, nor to any costs of suit, nor shall
the defendant in such prosecution be fined more than one shilling."
No American citizen can speak of this infamous law with calmness.
Well did Mr. Forsyth* say that some of its provisions were "violations
of well-established principles of the common law of England and of
the principles of all just powers and all civilized nations, and seemed
to be expressly designed to enable her Majesty's authorities, with
perfect impunity, to seize and confiscate American vessels, and to em-
bezzle, almost indiscriminately, the property of our citizens employed
in the fisheries on the coasts of the British possessions." Well, too,
did Mr. Everett t stigmatize it as possessing "none of the qualities of
the law of civilized States but its forms;" and Mr. Davis, J as being "a
law of a shameful character," and "evidently designed to legalize
marauding upon an industrious, enterprising class of men, who have
no means to contend with such sharp and unwarrantable weapons of
warfare. "
These are strong expressions; but they were uttered by gentlemen
who measure their words, and are entirely true. Nay, more; for I
shall presume to add that the politicians of Nova Scotia remind us of
the theory of Hobbes, who maintained that the natural state of man is
a state of war against all; since these very loyal gentlemen are in con-
tinual dispute with one another, with the government of the mother
country, with British subjects in other colonies, and with the people of
the United States. In fact, these persons, in their various contests,
have succeeded in making Nova Scotia the Barbary power of this hem-
isphere. It was contended in England, as late as the opening of the
present century, that the capture and sale of an English ship by Al-
gerines was a piratical seizure. I am disposed to regard the proceed-
ings against American fishing vessels, under the authority derived
from the act of 1836, as open to the same objection. When, in 1824,
young Howard and his associates rescued the Ruby and the Rein-
deer from the possession of the captors, the British government — as
we have seen — made formal and repeated demands for reparation;
but it may be difficult to show what other or greater right to interpret
the convention of 1818 can possibly belong to a British colony than
was exercised by this party of American youth. If Nova Scotia may
lawfully interfere with, and legislate upon, a matter which is entirely
national, so may Massachusetts and Maine. That colony is but a
dependency of the British crown; the colonial armed cutters are mere
corsairs, and their seizures of our property are acts of piracy. The
sea-robbers hold our vessels at their mercy. The act or 1836 places
* Despatch to Mr. Stevenson, February 20, 1841.
t Letter to Lord Aberdeen, April 2, 1845.
I Letter of Hon. John Davis, to the fishermen of Massachusetts, September 1, 1852.
1290 MISCELLANEOUS.
them above responsibility, and screens them from punishment. The
term "preparing to fish," allows them to seize our vessels under every
imaginable pretence. The repairing of damages to sails, rigging, and
boats; the arranging or reeling of lines; the preparation of bait; the
eating of food; the mending of garments, are all prohibited — for all are
performed with reference to the main objects of the voyage. An
American vessel, when within three miles of the coast, or when in a
harbor for shelter, cannot escape seizure, if the colonial cutters en-
force the law; for it is obvious that everything done on board may be
embraced in the comprehensive words — ' ' preparing to fish." The act
is a flagrant violation of the convention, which restricts us in certain
particulars, when within three marine miles of the colonial shores; but
"preparing to fish" is not among the interdictions. The convention
provides, "That the American fishermen shall be admitted to entersucli
bays or harbors for the purpose of shelter, and of repairing damages
therein, of purchasing wood and of obtaining water, and for no other
purpose whatever; but they shall be under such restrictions as may be
necessary to prevent their taking, drying, or curing fish therein, or in
any other manner whatever abusing the privileges reserved to them."
What, then, is the common sense construction of these words? I re-
ply, that a fishing vessel at home, secured at her owner's wharf, is said
to be "preparing to fish" when, among other things, her crew are
"repairing" her, and are taking in "wood" and "water;" and that a
repetition of these acts, when in a colonial harbor, constitutes the same
preparation. If this interpretation is just, it follows that while our
vessels cannot take, dry, or cure fish within the colonial harbors, or
within three miles of certain colonial coasts, they can prepare to do one
and all, whenever necessity arises; responsible only for "abusing the
privileges reserved to them."
The absurdity, the inhumanity, of the pretensions set up by Nova
Scotia, can be shown by the report of one of her own officers. "I have
seen," says Paul Crowell,* (Feoruary, 1852,) "instances where Ameri-
can vessels had been fishing the whole of the day, and towards evening,
a gale springing up, they were forced to run for a harbor with fifty or
sixty barrels of fresh mackerel on deck; and if salting those fish is un-
derstood curing fish — which I think is the only way in which mack-
erel can be cured — under those circumstances these people must cast
their fish into the sea again, or run the risk of having the vessel and
cargo seized."
And again: "When cruising in the schooner Telegraph, last fall,
being in Little Canso, an American vessel lay near. (Deserving the
men busily employed on deck, I manned my ooat and boarded her; I
found them employed grinding bait for mackerel. The captain
appeared quite innocent, and said he had been so careful that he had
not taken a lobster while in the harbor. This might be understood
'preparing to fish.'"
This gentleman, to his honor, refused to seize the vessels to which
he refers; but, under the new construction of the convention, they
were all prizes. He states truly, that mackerel caught on the eve of
a gale, and not dressed and salted at sea at the peril of human life,
cannot be "saved" in a colonial harbor resorted to for shelter, with-
out involving the loss of vessel and cargo ; and that confiscation also
*The Cro wells of Cape Cod axe of the same lineage.
MISCELLANEOUS. 1291
awaits those who, in the same barbarous precincts, presume to use a
bait-mill! The degree of civilization in colonial legislation is wonder-
ful, and without a parallel, except in Tunis or Tripoli.*
As the concluding topic, we pass to examine into the causes of the
seizure of our vessels, by ships of the crown and by the colonial cutters,
for alleged "aggressions."
Chronological order is not material to the inquiry, and will be dis-
regarded. In many cases we have the seizing officer's own account.
Thus says one:
' ' I found the said American schooner Rebecca at anchor, cleaning
fish and throwing the offal overboard. It being fine weather, and they
having three barrels of water on board, with a sufficient quantity of
wood, I detained her, and took her to St. John."
Again, reports the same officer to his superior:
' ' I found the American fishing schooner William anchoring in Gull
cove; the weather was fine until after she got in, when it came on
foggy, with light breezes; and they having two barrels of water on
board, which myself, Mr. Tongeau, and boat's crew subsequently used
from, and plenty of wood, I detained her."
Still again:
' ' I received information from the fishermen at Gull cove, as well as
from the master and crew of the fishing schooner Minerva, of Grand
Menan, that an American schooner was at anchor at Seal's passage.
I went out from Gull cove, and saw her there; at nine o'clock in the
evening I boarded her, which proved to be the American fishing
schooner Galeon, and found all the crew asleep. On questioning the
master the reason of his being there, he told me he had come to throw
the gurry (offal of the fish) overboard. They not being in want of
wood or water, and a fine fair wind for them, I detained her, got her
under weigh, and ran for Gull cove, a direct course for their fishing
ground. What the crew of the last mentioned vessel asserted in their
protest is not true. I never said that I would release their vessel, but
told them that it was not in my power to do it, as they had decidedly
violated the treaty of convention between England and the United
States ; but as they pleaded poverty, saying their vessel was then* sole
support, I told them I would recommend their case to Captain Hoare,
of the Dotterel, my commanding officer."
The schooner Battelle was seized for setting nets in a harbor, and for
this offence was condemned; the Hero was seized because one of her
crew dressed some fish on shore ; the Hyder Ally was seized and con-
demned for using nets within three miles of the coast ; the capture of
* As an instance of the falsehoods resorted to in Nova Scotia to inflame the minds of
the colonial fishermen, I cite the following paragraph which appeared in a Halifax
paper in 1845:
" Mackerel fishery. — About four hundred vessels engaged in the mackerel fishery (from
the coast of Nova Scotia and Cape Breton) arrived at the port of Gloucester (United
States) on Sunday, September 27 . Their cargoes averaged one hundred barrels. Thus
this fleet had upwards of forty thousand barrels of fish — pretty pickings enough! The
whole catch of our provincial fishermen will not exceed ten thousand barrels."
There is one other "fish story " equal to this, namely: Some six hundred years ago, a
woman-fish direct from the ocean made her appearance among the fishermen of Holland,
with whom she lived awhile in great amity ; but desiring finally to see her children, she
took affectionate leave of the kind Dutchmen, and returned to her old home in the sea,
where, for aught that appears in history, she is alive at this day. The skippers above
mentioned reported falling in with her on the "coast of Nova Scotia and Cape Breton"
in 1845. but the veracious Halifax editor suppresses the important fact.
1292 MISCELLANEOUS.
the Madison was solely upon the suspicion that her master had been
engaged previously in an affray with the boat of a British man-of-war.
Mr. Towneau, a midshipman of the Dotterel, in his examination,
gives the following account of the seizure of the schooners Reindeer
and Ruby:
"I recollect while in Gull cove of having received information on a
Sunday, from some men and a Mr. Franklin, that several American
fishing vessels were at anchor in White Head harbor, and that they
anchored there the evening before ; that on their anchoring one of them
fired three muskets, and said they were armed and manned and would
oppose OUT boarding them. I acquainted Mr. Jones with the informa-
tion I had received, who went immediately in the small boat to cruise,
and returned in the evening. He told me that he had boarded an Eng-
lish fishing schooner (Industry) near White Head, who gave him infor-
mation that several American schooners were at anchor at Two
Island harbor, and that they got their wood and water at White Head.
They fired several muskets on their anchoring, and told the crew of
the Industry they would not allow a man-of-war's boat to board them;
and after they completed their wood and water, they shifted to Two
Island harbor. We got the yawl under weigh about nine o'clock in
the evening and went towards Two Island harbor, and anchored about
two o'clock in the morning. At daylight we observed several vessels
at anchor at Two Island harbor, and shortly after got under weigh,
when we chased them. Observed three of them lashed together, and
all the crews collected on board the middle one. We ordered them to
separate, which at first they refused to do, until Mr. Jones threatened
to fire on them. They dropped clear of each other. We boarded
them, and detained the American schooners Reindeer and Ruby."
These vessels were rescured, as has been related, off Eastport. Mr.
Jones, the prize-master, in his report of the affray, states that —
"It being fine weather, and they not being in want of wood or
water, I detained the Reindeer and Ruby, and put their men, with the
exception of the masters, on board the two American schooners, with
provisions for a passage to Lubec, and made sail in the Reindeer and
Ruby for St. Andrew's, through East Quoddy. Apout 6 p. m., when
abreast of harbor De Lute, I observed two schooners, and an open
boat full of armed men, muskets and fixed bayonets, hoisting Ameri-
can colors; one of them went alongside Mr. Towneau, in the Ruby,
boarded, and took the arms from him and his three men: the one
abreast of me was kept off for about a quarter of an hour, when they
commenced firing into us. Though with great reluctance, I thought
it most prudent to surrender to such superior force, having but four
men, one musket, and three cutlasses.
"On delivering them up, I found there were in the two schooners
about a hundred armed men, (including the crews of the schooners,
about thirty in number,) the rest having the appearance of militiamen,
and headed by a Mr. Howard, of Eastport, said to be captain in the
United States militia."*
The Magnolia was charged with fishing while at anchor in a harbor,
but the master averred that he caught no fish within fifteen miles of the
coast; that he went into the harbor for shelter, and for wood and
water; and that his only offence consisted in the purchase of a barrel of
herrings for bait. The Magnolia was, however, condemned.
* This statement we have shown to be incorrect in several particulars.
MISCELLANEOUS. 1293
The Independence, on her way from the fishing ground to a colonial
port to get a compass repaired, and to procure water, encountered a
gale which required her to put into an intermediate harbor, where she
lent her nets, for a single night, to a British fisherman, and was seized
and confiscated.
The master of the Shetland, importuned by a lad, sold him a pair
of trousers, one pound of tea, and six or eight pounds of tobacco, for
which he received four dollars. The seizing officer himself confessed
to the American consul at Halifax that he gave the boy the money to
induce the master to sell the articles mentioned. The Shetland
"escaped condemnation," says the consul, "by the merest accident;"
she was released on payment of about six hundred dollars expenses.
The complaint against the Amazon was "for selling gooas on the
coast. The charge was denied, and was not proved. She was
restored on payment of $138 88, as follows:
Captain TAYLOR, master of the schooner Amazon,
To DUNCAN MCMILLAN, DR.
1839. To sundry attendance on said vessel £21 100
James TurnbulPs fees 1 3 4
Mr. John Bullam's charges for wharfage, storage, &c 7 11 1
Lauchlin McLean's bill for watching vessel 3 10 0
34 14 5
Captain Taylor deposed before the American consul at Pictou, that
being reducea to the alternative of paying this enormous demand, or
of "leaving his vessel in the hands or said McMillan, chose the former,
and gave a draft on his owners for the amount; on which his vessel
and stores were delivered to him by said McMillan, with the excep-
tion of a rifle and a musket, which the said officer took possession of,
because "he thought they would get rusty on board the vessel, and
he would take care of them; and they were not returned, * * al-
though he demanded them from said McMillan. * * * That
the said vessel was detained in the possession of the said officer from
the 7th day of July last until the 21st day of the present month, being
forty-five days, which detention has ruined his voyage, deprived the
owner of the power of procuring the bounty for the vessel for this
season, and, together witn the other heavy expenses incurred, * *
the whole loss to the owners and crew of the said vessel, hi consequence
of such seizure, cannot amount to less than from two thousand to two
thousand five hundred dollars."
The consul, in a communication to Mr. Forsyth, after the Amazon
had proceeded to sea, remarked, that "the (as I apprehend it) un-
justinable detention of that vessel led not only to the destruction of
her intended voyage, but, as I am informed, to her total loss in a gale
on the coast of Cape Breton, soon after she was released."
The Charles, drifting from her anchorage under a fresh wind and
heavy sea, (according to the account of her master,) put into a harbor
for shelter, and was seized. The British minister at Washington, who
considered that she was a lawful prize, alleges no offence, except that
a ship-of-war found her "at anchor in Shelburne harbor, into which
she had not been driven by stress of weather. From that harbor she had
already sailed once, after having previously anchored there, and had
1294 MISCELLANEOUS.
returned a second time, before she was captured by the Argus,* the
weather being-fine and moderate the whole time. She was accordingly
detained by Captain Arabin, for a breach of the act 59 George 111,
chapter 38, passed for the protection of the British fisheries, in con-
formity with the stipulations of the convention concluded between his
Majesty and the United States on the 20th October, 1818. On the
same grounds that vessel was subsequently condemned by the vice-
admiralty court, at St. John, in the province of New Brunswick.
"With regard to the equipping or the said schooner by the captain
of the Argus, and despatching her in quest of smugglers, you will ob-
serve, sir, that Admiral Fame acknowledges that act to have been
irregular; but he, at the same time, states that irregularity to have
been practised then for the first time, and announces that he has taken
measures for preventing the recurrence of it." But the Charles was
condemned.
The Hart, while in a harbor for wood and water, assisted one Brown,
a British subject, (as fishermen often do,) and was seized and con-
demned. Her master made oath that he had "never, at any one
time, remained in anyharbor or place for a longer period than twenty-
four hours; that neither he nor his crew, since her departure from
Deer island, have taken or prepared to take fish of any kind or descrip-
tion, with nets, lines, or in any manner, at a distance from the coast
less than fifteen miles." And Brown deposed that the Hart had fre-
quented the Tusket islands, "when, in nis belief, shelter was neces-
sary;" that she "was always brought to anchor close to his own ves-
sel;" that "he verily believed that no herring or other kinds of fish
were taken by the crew within or near to the said islands;" that when
at these islands, "had her crew attempted to fish, or to set nets, he
must have been aware of it;" and that Tie gave the master, and one of
the men, "two and a half barrels of herring as a recompense for assist-
ing him, at his request, in picking herrings from his nets, and in dress-
ing and salting fisn."
The Eliza carried away one of her main chains, and put into a harbor
to repair the damage; she was seized, but released on payment of a
claim of three hundred and thirty-nine dollars and fifty-six cents, the
amount of expenses incurred during her unlawful detention.
The Mayflower was carried into port, but finally restored on pay-
ment of a bill of three hundred and one dollars and twenty-five cents,
"assessed" against her by her unjust captors; the agent preferring to
liquidate the claim rather than to risk further difficulty.
The Three Brothers, relates Lieutenant Fame, in a letter to Mr.
Forsyth, (1839,) "having met with some injury by grounding, com-
menced lightening ; but the captain was advised to apply for permis-
sion, and did so: the permission was refused, and the articles landed
(some barrels of salt) were seized. This was afterwards ordered to be
restored to the owners, but had already been sold; and the proceeds
are now in the hands of the collector of customs at Charlottetown,
subject to the orders of the honorable the board of customs in Lon-
don, and cannot be claimed by the owners without first entering into
bonds — probably ten times the amount of the salt seized."
A second vessel, called the Charles, having fitted for the Magdalene
herring fishery, (says the collector of the customs of the district of
* Formerly of the United States navy; captured in the war of 1812.
MISCELLANEOUS. 1295
Frenchman's Bay, Maine, in a communication to Mr. Forsyth,) "after
making her fare, on her return put into the harbor called Pirate Cove,
near the Big Gut of Canso, and had not lain there twenty-two hours,
when the schooner was boarded by an officer of the revenue, called a
seizing officer, and by him taken possession of and carried to Guys-
borough. The only pretence for this seizure was, that the schooner
was under cod-fishing license, and had on board herrings. The ves-
sel, after a detention of nineteen days, was given up by directions
from Halifax. That at the time of said seizure, the officer took from
him ten barrels of his herrings, which have never been returned; and
the remainder of his cargo, by the detention, has been nearly all lost.
The name of the seizing officer was John G. Marshall." The master
of the Charles, he adds, "is a very poor man, and totally unable to
bear such a loss. It is at his request I write to solicit the aid of the
government in his behalf, knowing of no manner in which he can
obtain compensation for his losses from this British officer, but
through his own government."
The allegation against the Pilgrim was that her lines were cast, and
fish caught, within one and a half mile of the shore. After her cap-
ture, her master, assisted by one of the prize crew, rescued her. The
Director and Pallas were seized for "aggressions," which do not dis-
tinctly appear in the official papers, and were "ultimately wholly lost
to their owners," who claimed redress; but, as is believed, none was
obtained.
The Java, the Hero, and the Combine, were probably condemned
for good cause. With regard to the first, however, it may be said,
that the American consul at Halifax, feeling a deep sympathy for her
owners, gave directions for her purchase at the government sale, "if
it was possible, by so doing, to save these poor men from ruin."
In the case of the Washington, there was no pretence whatever that
she had committed any offence under the convention. When cap-
tured, she was ten miles from the coast; but being within the head-
lands of the Bay of Fundy, was made prize of, merely on the claim set
up that we could not rightfully fish in the waters of that bav. The
Argus was seized off the coast of Cape Breton, and fifteen miles from
the shore, upon the same general ground. Her owners, in a letter to
Mr. Calhoun, Secretary of State, says that she "had two hundred and
fifty quintals of fish on board;" that "the vessel was valuable to
them and to her crew, who were turned on shore without funds or
means to help them home."
The Hope was captured without cause; was tried in the court of
admiralty, and restored. Her master and crew had previously
exerted themselves to save the lives of the crew of an English vessel.
The Commerce was seized in the Gulf of St. Lawrence. The cap-
tain states the facts as follows: "While employed," he says, in dress-
ing the mackerel which they had caught (on that day,) "there came
on a gale so severe that the vessel was hove down on her beam-ends;
part of the fish, to the amount of fifteen barrels, was washed over-
board, the rest being stowed in the hold; the only boat was carried
away, and the gib was split in two." The next morning, being
near the harbor of Port Hood, he thought "it prudent to put in
to repair sails, and procure a boat. On arriving there he came to
anchor, at 9 o'clock; and while salting the fish, to keep them from
spoiling, and waiting for the sails to dry," the commander of a
1296 MISCELLANEOUS.
colonial cutter came on board, from an old black fishing-shallop, with
eleven men, and told him that he "had violated the treaty by salting
his mackerel in the harbor." The colonial officer "put the men,
except two, on shore, without money or friends, and took the vessel,
with the captain and the two other men, to the Gut of Canso, where
his cutter was lying, and on the following day to Arichat. The ves-
sel was here stripped of her sails and rigging." On a hearing before
the admiralty court, the Commerce was released; and, continues the
captain, he "received an order, which was sealed up, addressed to the
officer at Arichat, directing, as he was informed, the clearance of his
vessel free of all expenses, and leaving him to get back as he could.
On arriving at Arichat, he found one anchor taken from his vessel,
and he was compelled to pay $22 for wharfage, and for taking care of
the vessel." The American consul for Cape Breton, Nova Scotia, and
Newfoundland, corroborates the captain in the most important par-
ticulars. He remarks: "Off Prince Edward Island, one of our fish-
ing-vessels lost her boat and injured her sails, and was obliged*to put
into Port Hood for a harbor. While there the captain was cleaning
some of his mackerel, when his vessel was seized by the British reve-
nue cutter and taken into Arichat, where the vessel was stripped of
all her sails. As soon as I heard of the particulars from my consular
agent at Port Hood, I immediately informed our government of the
facts, and laid the case before the authorities at Halifax, who, after a
delay of some three months, concluded to release the vessel ; the con-
sequence was, the owners were put to great expense, and the captain
and crew, many of whom had large families, lost their whole fishing
season."
The number of our fishing vessels seized between 1818 and 1851
was fifty-one ; of which, twenty-six were released without trial or by
decree of the admiralty court, and twenty-five were condemned. The
cases which we have examined embrace upwards of one-half of the
whole number captured during a period or more than thirty years.
Fifteen or sixteen thousand voyages, at the lowest computation, must
have been made to the coast of Nova Scotia, New Brunswick, and
Prince Edward Island; and yet, notwithstanding the hostile spirit
which has been manifested by the first-named colony, from the first,
and notwithstanding the inducements held out to the colonial officers
by the provisions of the act of 1836, there have been barely fifty-one
prizes. In view of this fact, the story of "American aggressions,"
with which the world has rung for upwards of a generation, becomes
a mere fable.
Of the cases which we have noticed somewhat minutely, there is not
one of a flagrant nature. Those of the Reindeer and Ruby are seem-
ingly such ; but whoever reads the statement of the British officer with
care, will hardly find satisfactory proof, even by his own showing, that
the muskets of which he speaks were fired from these very vessels, or
that they were concerned in the outrages of which he complains. Cer-
tain it is, that the masters and owners, who were known to me, denied
the allegations made against them; and that the injustice of the sei-
zure, and the tardy redress to be obtained by an application to our
government — as understood at the time — were the causes of the rescue.
The pretences upon which some of the twenty-eight vessels included
in our examination were seized, are disgraceful beyond degree; and
that of the number, several were condemned without the shadow of a
MISCELLANEOUS. 1297
reason, beyond the poverty of the owners, the iniquitous provisions of
the act of 1836, and the enormous expenses which attend litigation,
cannot be doubted.
The American consul at Halifax, addressing the executive of Nova
Scotia on the subject, observed to his Excellency, that "a claimant
must be in a situation to procure funds to employ lawyers, and to pay
heavy court expenses under the vice-admiralty table of fees; which
cannot be done in any of these cases, as I am informed by professional
men, under an advance of at least thirty or forty pounds currency:
adding to this the security of sixty pounds, it is evident that the owner
of each vessel so seized must either send on funds or letters of credit to
the extent of one hundred pounds, before he can oppose the seizure, or,
otherwise, the vessel will or may be condemned by default.
"This sum is, perhaps, as much as any of these small vessels are
worth, and the claimant, if able to pay it, must actually place at haz
ard the one hundred pounds mentioned, in addition to his property
seized; and although, perhaps, quite innocent of any offence, must
depend upon the proverbial uncertainty of litigation for the recovery
of any part of the property or money in such danger."
In a communication to. the owners of the Argus, he says :
"The expenses in the court are very heavy, and previous to defend-
ing a suit, the judge requires security to the amount of three hundred
dollars; so that, generally speaking, it is better to let the suit go by
default, and purchase the vessel after condemnation."
Lieutenant Paine, previous to his cruise in the Grampus, entertained
the opinion which has often been expressed during the disturbances of
the present year, (1852,) that "the vessels seized had been generally
guilty of systematic violation of the revenue laws;" but he confesses
that he "was soon led to suspect that this was not the cause, so much
as a pretence for seizing." And he states further, that "a vessel once
seized must be condemned, unless released as a favor; because the
owners will not claim her under the present laws of Nova Scotia, where
the only seizures have taken place.
The consular agent of the United States for the port of Yarmouth,
who is a legal gentleman, and a person of great private worth, gave
the opinion, in the cases of the Independence and the Hart, that the
evidence was insufficient to authorize their seizure;" yet we have seen
that both were confiscated. Mr. Barnes, the naval officer of Boston,*
in reply to the collector of that port, who desired information in rela-
tion to the seizures made in 1839, states, that "while at Yarmouth I
had the pleasure of meeting very many highly respectable and intelli-
gent gentlemen of that town, who seemed deeply to regret that their
own government officers should have proceeded with so much rigor
against the American fishing craft, believing with the consul and the
Americans generally, that, in a majority of cases, the seizures had
been made for causes of the most trivial character." He adds: "It is
perfectly certain that our fishermen must have the right to resort to
the shores of the British provinces for shelter in bad weather, for fuel,
and for water, unmolested by British armed cruisers, or this impor-
tant branch of American industry must be, to a very great extent,
abandoned. It affords but poor consolation to the fisherman, whose
•In 1839.
92909°— S. Doc. 870, 61-3, vol 3 43
1298 MISCELLANEOUS.
vessel has been wantonly captured, and who finds himself and his
friends on shore among foreigners already sufficiently prejudiced
against him, without provisions and without money, to be told that
the court of vice-admiralty will see that justice is done him, and that,
if innocent, his vessel will be restored to him. The expenses of his
defence and the loss of the fishing season are his ruin."
The officer who for many years made the greatest number of cap-
tures died in 1851. It was the opinion of Lieutenant Paine, in 1839,
that he was " prompted as well by his interest as by the certainty of
impunity" in his course towards our countrymen. We" may now pass
lightly over his proceedings, remarking only that, the year previous to
his decease, he levied contributions upon some of the masters of fishing
vessels he met with, compelling them to give him five, ten, or twenty
barrels of mackerel, according to circumstances, on pain of capture
for refusal.*
To avoid misapprehension, I deem it proper to observe, in conclu-
sion, that I have not designed to censure the admiralty court. As long
ago as the war of 1812, that tribunal restored to the Academy of Arts
of Philadelphia a case of Italian paintings and prints captured by a
British vessel and sent into Halifax, on the ground that "the arts and
sciences were admitted to form an exception to the severe rights of
warfare." It has lost none of its character since. Its decisions rest
on the law and the testimony. Still, since integrity and learning upon
the bench are insufficient to insure justice without honest witnesses
upon the stand, American vessels have sometimes been condemned
wrongfully.
The discussion may end here. The political leaders of Nova Scotia
have succeeded in disturbing the friendly relations which for a long
period existed between England and the United States. "We have
been on the verge of a war," says the London Times, "with a nation
which, from its identity in race and language with ourselves, would
have proved a truly formidable enemy — a maritime and commercial
people, who would have met us with our own arms, on our own ele-
ment, and visited our commerce with mischiefs similar to those
which we should have inflicted upon theirs. So closely are the two coun-
tries united, that every injury we might inflict on our enemy would have
been almost as injurious to our merchants as bombarding our towns or
sinking our own ships." And it continues: "It is no exaggeration to
say that with this people we were on the very verge of w ar ; for, had
we persevered in carrying out with a high hand, by seizure and con-
fiscation, our own interpretation of the treaty, a collision with the
American commodoref was unavoidable; and such a collision must
almost necessarily have been followed by a formal declaration of
hostilities. Now, what is the question which has so nearly led to
such serious results? It is simply whether a certain quantity of salt-
fish consumed in these islands shall be caught by citizens of the
United States or natives of our own colonies. The question whether
American fishermen shall be allowed to spread their nets in the Bay of
* There seema no reason to doubt this statement, which rests on the declarations of the
persona concerned. It is said, further, that this officer dared not to dispose of the fish
after he had obtained them, and that they were suffered to remain in store a long time.
Representationa on the subject were made to Mr. Webster, Secretary of State, in March,
1852.
f Commodore Perry, in the steamer Mississippi.
MISCELLANEOUS. 1299
Fundy is one in which the people of this country have no imaginable
interest: they will neither be richer nor poorer, stronger nor weaker,
more admired nor more feared, should they secure the monopoly of
fishing in these northern waters to the inhabitants of the seacoast
of our North American colonies."
These are significant declarations. Still further, says this powerful
press: "We are, in fact, in this disagreeable position/that, according
to the present compact between the mother country and her colonies,
she is obliged to take up quarrels in which her interests are in no way in-
volved, and is bound over as surety for the good behavior of governments
and legislatures actuated by feelings, principles, and interests totally dif-
ferent from her own, and over whose actions she has renounced all
efficient control."
It is precisely so; and the London Times might have spoken of one
of these colonies as did Mr. Burke.* "The province of Nova Scotia,"
said he, "is the youngest and favorite child of the board. f Good God!
what sums the nursing of that ill-thriven, hard-visaged, and ill-favored
brat has cost this wittol$ nation! Sir, this colony has stood us in a sum-
not less than seven hundred thousand pounds. To this day, it has made
no repayment: it does not even support those offices of expense which are
miscalled its government. The whole of that job still lies upon the
patient, callous shoulders of the people of England."
I have not designed, in the strictures which have appeared in this
paper, to include the great mass of the people of Nova Scotia. Terms
of severity, whenever found, have been designed entirely for the busy,
restless politicians of that colony, who originally stirred up, and have
kept alive, the existing strife. The people, as a body, I am persuaded,
entertain no feelings of hostility towards us. If allowed, they would
afford us all possible aid in conducting our enterprises in their waters,
and would deal with us in the most neighborly and liberal manner.
They are willing to admit that there are fish enough both for them-
selves and for us. We are to spare our censures of colonial fishermen,
then, and to speak harshly of the political men alone who. for pur-
poses of their own, have conceived plans which, if executed, will do
vast injury to us, and ultimately to the colonists themselves; for it is
not to be overlooked that retalitory legislation on the part of Congress
would utterly ruin the colonial fisheries.
* Speech on economical reform, House of Commons, February 11, 1780.
t Board of Trade and Plantations.
J Witol, wittal, or wittol: an old Saxon word, signifying a contented cuckold.
EXTRACTS FROM REVISED STATUTES OF THE UNITED STATES,
TITLES XL VIII AND L, CHAP. I.
SEC. 4131. Vessels registered pursuant to law, and no others, except
such as shall be duly qualified, according to law, for carrying on the
coasting trade and fisheries, or one of them, shall be deemed vessels
of the United States, and entitled to the benefits and privileges apper-
taining to such vessels; but they shall not enjoy the same longer than
they shall continue to be wholly owned by citizens and to be com-
manded by a citizen of the United States. And officers of vessels of
the United States shall in all cases be citizens of the United States.0
(31 Dec., 1792, c. 1, s. 1, v. 1, p. 287. Ibid. 17 April, 1874, c. 107,
v. 18, p. 30. 18 April, 1874, c. 110, v. 18, p. 31.}
*******
SEC. 4165. No vessel which is registered, pursuant to any law of
the United States, and which is seized or captured and condemned
under the authority of any foreign power, or which by sale becomes
the property of a foreigner, shall be entitled to or capable of receiv-
ing a new register, notwithstanding such vessel should afterward
become American property; but all such vessels shall be taken and
considered, to all intents and purposes, as foreign vessels. Nothing
in this section shall extend to or be construed to affect the person
owning any vessel at the time of the seizure or capture of the same,
or his executor or administrator, or shall prevent such owner or his
executor or administrator, in case he regain a property in such vessel,
so condemned, by purchase or otherwise, from claiming and receiving
a new register for the same, as he otherwise might have done.6
(27 June, 1797, c. 5, v. 1, p. 523. 27 Mar., 1804, c. 52, s. 2, v. 2,
p. 297.)
*******
SEC. 4320. In order to the licensing of any vessel for carrying on
the coasting-trade or fisheries, the husband, or managing owner, to-
gether with the master thereof, with one or more sureties to the satis-
faction of the collector granting the same, shall become bound to pay
to the United States, if such vessel be of the burden of five tons and
less than twenty tons, the sum of one hundred dollars ; and if twenty
tons and not exceeding thirty tons, the sum of two hundred dollars;
and if above thirty tons and not exceeding sixty tons, the sum of five
hundred dollars; and if above sixty tons, the sum of one thousand
dollars, in case it shall appear, within two years from the date of the
bond, that such vessel has been employed in any trade whereby the
revenue of the United States has been defrauded, during the time the
0 For this section as amended by Act of Congress of May 28, 1896, see p. 1126.
6 For this section as amended by Act of Congress of March 3, 1897, see p. 1127.
1300
MISCELLANEOUS. 1301
license granted to such vessel remained in force. The master of such
vessel shall also swear that he is a citizen of the United States, and
that such license shall not be used for any other vessel or any other
employment than that for which it is specially granted, or in any
trade or business whereby the revenue of the United States may be
defrauded; and if such vessel be less than twenty tons burden, the
husband or managing owner shall swear that she is wholly the prop-
erty of citizens of the United States ; whereupon it shall be the duty
of the collector of the district comprehending the port whereto such
vessel may belong, [the duty of six cents per ton being first paid,~] to
grant a license."
(18 Pel., 1793, c. 8, s. 4, v. 1, p. 306. 27 Feb., 1877, c. 69, v. 19,
p. %51.)
Mr. Reynolds to the Secretary of State.
TREASURY DEPARTMENT,
WASHINGTON, September 18, 1909.
The honorable the SECRETARY OF STATE.
SIR: In response to your inquiry, I have the honor to inform you
that under the Statutes of the United States and the rulings of this
Department no duty is imposed upon the entry into this country of
fish taken in foreign waters by American fishing vessels, with the
assistance of foreign fishermen, boats and gear hired for that pur-
pose, provided that no portion of the cargo was in fact purchased,
fish thus taken being the " product of American fisheries " within
the meaning of the Statutes authorizing the free admission into this
country of such products.
Under the rulings of this Department " an American fishery " is
" a fishery prosecuted under the American flag."
Fish thus taken in Newfoundland and other waters under treaty
rights by American fishing vessels, have always been considered as
the product of an American fishery.
Respectfully,
(Signed) J. B. REYNOLDS,
Acting Secretary.
"For this section as amended by Act of Congress of January 16, 1895, se«
p. 1129.
EXTRACTS FROM ANNUAL REPORTS OF CANADIAN DEPARTMENT
OF MARINE AND FISHERIES.
List of United States vessels reported as having taken out annual
licenses :
Year.
1888
No. of vessels.
36
Year.
1898
No. of vessels.
79
1889
78
1899
_ 80
1890
119
1900
78
1891
98
1901 _
82
1892
108
1902
_ _ __ 89
1893
71
1903 __
93
1894
53
1904 _
_ _ _ 80
1895
47
1905
_ 107
1896
77
1906
no report.
1897 _
40
EXTRACTS FROM ANNUAL REPORTS.
Report for 1889.
The service during the past season has been carried on most satis-
factorily, there being an evident desire on the part of United States
fishing vessels to fairly observe the regulations, and friction between
the masters and the officers of the Protection Force has been avoided,
while the existence of the so called modus vivendi license system has
been an important factor in the maintenance of order and goodwill.
The licenses issued numbered 78, as against 36 in 1888; the amount
collected being $9,589.50, as against $3,831.00 in 1888, an increase of
42 licenses and $5,758.50 in collections in 1889 over the previous year.
As the two years for which the modus vivendi made provision in
connection with the granting of these licenses expires on the 15th of
February of next year, unless some new arrangement is reached or
provision made for continuing the present system, recourse will be
necessary to the much discussed provisions of the Treaty of 1818.
The only seizure made during the year was that of the United
States' fishing schooner Mattie Winship, Captain Conrad "W. Ericson,
73 tons, of Gloucester, Mass., seized by Captain Knowlton, of the
Vigilant, for illegally fishing off the North Cape coast of Victoria
County on the 31st May, 1889. This vessel was released under bond,
and subsequently discharged upon the payment to the Crown of a
fine of $2,000 and all expenses.
In the month of November judgment was given by the Vice Admi-
ralty Court of Nova Scotia in the case of the schooner David J.
Adams, seized in 1886 for preparing to fish in the offing near Digby,
N. S., decreeing the vessel's forfeiture and ordering that she be dis-
posed of by public auction. This was done after due notice, when
the vessel sold for the sum of $1,400.
1302
MISCELLANEOUS. 1303
Report for 1890.
The only seizure effected during the past season was the United
States' fishing schooner Davy Crockett, Nelson Cantello, Master,
which vessel was seized at Souris, P. E. L, on the 25th September,
for fishing from dories within the three-mile limit. The Davy
Crockett was taken to Charlottetown and proceedings instituted in
the Admiralty Court. Pending the result of these proceedings, this
vessel was released under a bond for $2,500, this having been fur-
nished to the satisfaction of the court.
The United States' fishing schooner Nellie Irving was detained by
the Collector at Souris for an alleged infraction of the Customs regu-
lations, but was subsequently released.
The period of two years for which the modus vivendi of the Treaty
of Washington Act of 1888, providing for the issue of licenses to
United States fishing vessels, having expired on the 14th of February,
1890, Parliament passed an Act intitled "An Act respecting fishing
vessels of the United States of America," under which the system of
licenses to foreign fishing vessels was authorized, the conditions being
that upon the payment of $1.50 per ton such vessels were permitted
to enter Canadian ports for the purchase of bait, ice; seines, lines, and
all other supplies and outfits, and the transmission of catch and
shipping of crews.
Report for 1891.
During the past season, but one seizure of United States vessels
became necessary; that of the schooner F. D. Hodgkins, which was
seized at Fox Bay, Anticosti, by the SS La Canadienne, for fishing
within the three-mile limit.
The vessel was taken to Gaspe, and proceedings were instituted in
the Admiralty Court, but on the urgent plea of the master that he
was ignorant of the law, thinking they had the same right at Anti-
costi as at the Magdalen Islands, and that his action was not a wilful
violation of the law, the vessel was released on the payment of a fine
of two thousand dollars.
The Act of 1890, providing for the issue of licenses to United States
fishing vessels, having expired on the 31st December of that year,
and in view of the late date of the meeting of Parliament, authority
was obtained from His Excellenc}^ in Council to issue ad interim re-
ceipts for similar privileges on the same conditions, pending legisla-
tive action in that direction; such receipts to be replaced by formal
licenses on the passage of the requisite statute.
On the 10th July, 1891, an Act was assented to providing for the
issue of licenses to United States fishing vessel-, permitting them
during the calendar year to enter ports on the Atlantic Coast of the
Dominion of Canada, for the purpose of:—
(a) The purchase of bait, ice, seines, lines and all other supplies
and outfits:
(6) The transshipment of catch, and the shipping of crews.
* * * * * * *
It is noticeable that although T'nitod Slate- voxels were enabled
to obtain licenses free of charge from Newfoundland for the purpose
of procuring fresh bait, and the above- fiirmvs -how a decrease of 21
1304 MISCELLANEOUS.
in the number of vessels which took put such licenses in 1891 as com-
pared with 1890, there is an actual increase of 20 vessels over 1889,
when the licenses issued by Newfoundland and Canada on the
same terms were jointly valid in the Dominion and Newfoundland
respectively.
LICENSES FOB FOREIGN FISHING VESSELS.
Parliament having sanctioned the continuance of the system of the
issue of licenses commenced under the modus mvendi appended to
the Treaty of Washington, 1888, similar licenses were issued for
the year 1891, and the charge of one dollar and fifty cents per ton
formerly made was continued unchanged.
Report for 1893.
SEIZURES.
Two seizures were made during the season, one of the Lawrence A.
Munro, U. S. fishing schooner, seized at the Magdalen Islands for the
infraction of the customs laws. This vessel was taken to Gaspe, but
was released on the payment of a fine of $1,200 after a short period ;
and the Lewis H. Giles, U. S. schooner, seized off Cape Egmont, east
coast, Cape Breton, by Captain Knowlton, in the Dominion cruiser
Vigilant. This vessel was fishing inside the three-mile limit, the
master pleaded he was not inside, but the vessel was taken to Sydney
and partially dismantled; she was released on payment of a fine of
$2,500.
Report for 1894.
Two seizures were made on the Atlantic coast, viz., the United
States schooner H. L. Phillips for fishing inside the limits at Anti-
costi. This case is still pending in the Admiralty Court. The
Schooner Mabel R. Bennet was seized for curing fish inside our limits,
but was released on taking out a license.
Report for 1895.
It will be of interest to give the history of these modus mvendi
licenses issued to United States fishing vessels. As I have remarked
in a previous report, the issue of these licenses simply shows our
good feeling towards the United States, and from a fisherman's point
of view, is very much in favour of our neighbours.
Under the modus vivendi which forms a protocol to the treaty of
1888, pending ratification, the British plenipotentiaries agreed to a
temporary arrangement, not exceeding two years, by which United
States fishing vessels, on payment of the sum of $1.50 per ton regis-
ter, were allowed the privileges of —
(1) The purchase of bait, ice, seines, and all other supplies.
(2) Shipping crews, and transshipping catch.
If, during these two years, the United States should remove the
duties on fish and fish products, these licenses should be issued free.
The United States Government made no such concession. During
1888 and 1889, the two years specified, it was practically obligatory
for the Canadian Government to issue these licenses, but not so
after 1889.
MISCELLANEOUS. 1305
In 1890, Canada, by Act of Parliament, extended the privileges
which had expired with the modus vivendi. This was continued
until 1893, when to avoid going to Parliament, an Act was passed
authorizing the government to issue such licenses from time to time.
Report for 1896.
SEIZTJBES.
The only seizure of a United States fishing vessel made during the
season was that of the schooner Frederick Gerring Junior. She was
seized within one and one-half miles of Gull Ledge, off the coast of
Guysborough, Nova Scotia, on the 25th May, by Captain Knowl-
ton, for bailing mackerel out of a seine inside the limits. The master
pleaded that the fish were caught outside, and if she was inside at
the time of seizure, she had drifted in, and that the act of fishing
was finished when the fish were once inclosed in the seine. The case
was tried in the Admiralty Court of Nova Scotia before the Chief
Justice, and the vessel was condemned and confiscated. However, the
defendants appealed to the Supreme Court at the capital. The case
was heard, but judgment has been reserved.
LICENSES FOB FOREIGN FISHING VESSELS.
An Order in Council being passed sanctioning the continuance of
the system of the issue of licenses commenced under the modus
vivendi appended to the Treaty of Washington, 1888, similar licenses
were again issued for 1896. and the charge of $1.50 per ton formerly
made was continued.
Report for 1897.
It will be noticed that there has been a falling off in the licenses
taken out by United States fishermen this year. The reason, I think,
is the great leniency with which the department has treated these
fishermen, in many cases privileges being granted which really ne-
cessitated the taking out of a license, so, of course, in the natural
order of events, owners would not pay for a privilege (although it
is only a nominal fee) , when they could get the same thing without
paying. Those who did take out and pay for licenses were much
exercised over the same right being accorded to people who paid
nothing.
During 1896 the number of licenses increased nearly 60 per cent
on account of the extra paragraph which was placed in the license
warning United States fishermen with a license that if they sold
stores of any description to vessels without such license, immediate
cancellation of the permit would ensue, and no license would be
issued to the offending vessel in the future. The invariable concili-
atory attitude of the Canadian Government for years to foreign
fishermen I think is taking effect now, and it will probably be found
that the licenses will become fewer.
Report for 1898.
It will be noticed that there are nearly double as many licenses as
in 1897. I put this down to the scarcity of bait on the United States
coasts; there is no doubt in my mind that the procuring of bait and
1306 MISCELLANEOUS.
shipping of men are by far the most important items included in the
licenses, after that the transhipment of cargo. As regards buying
provisions, stores, &c., I think it would greatly assist our merchants
and others in the small coast towns if this were to be allowed.
However, no doubt all these highly important details are being taken
into consideration by the Joint High Commissioners.
Report for 1899.
SEIZURES.
One seizure was made, by Captain Knowlton of the Osprey, at
Canso, Nova Scotia, for an infraction of the fishery laws, in that the
United States fishing vessel, Flora L. Nickerson, did purchase pro-
visions and stores at Canso without first obtaining a Dominion
license. This vessel was seized and a guard put on board, but I re-
leased her next day on orders from the department, after the master
had consented to immediately secure a modus vivendi license.
Another seizure of the United States fishing vessel Stranger was
made at Lockeport, Nova Scotia; but this was purely for a customs
matter. She was released on payment of a fine of twenty -five dollars.
GEOGRAPHICAL DATA.
Annapolis Basin, Lat. 44° 40' N., Long. 65° 42' W. The entrance
is through Digby Gut which is not over one-half mile ° wide.
American Cove is stated to be in Whitehead Harbor. (See Gull
Cove.)
Beaver Island, Lat. 44° 49£' N., Long. 62° 20£' W. The island is
about one-half mile long. It is now marked by a light-house.
Beaver Harbor, Lat, 44° 55' N., Long. 62° 20|' W. The harbor
is about 3 miles deep and 3 miles wide at the entrance.
Bryer (Briar] Island, Lat, 44° 16' N., Long. 66° 22' W.
Cape Negro Harbor, Lat 43° 32' N., Long. 65° 21' W. Each of the
two entrances to the harbor are less than 1 mile wide.
Cheticamp Point, Lat. 46° 36' N., Long. 61° 3' W. (See Friar
Head.)
Digby Harbor. — The town of Digby is located on the south side of
Annapolis Basin (which see).
Ellenwood Harbor is stated to be in Tusket Islands (which see).
Friar Head, Lat. 46° 31£' N., Long. 61° 5' W. A line drawn from
Cheticamp Point to Margaree (or Sea Wolf) Island would pass
within less than two miles of Friar Head. At no point would such
line be more than three miles from land.
Gullivers Hole, Lat, 44° 37' N., Long. 65° 55£' W. A small bay
about £ mile deep and about £ mile wide at the entrance.
Gull Cove, Lat. 44° 39' N., Long. 66° 42' W. A small bay on
Whitehead Island, S. E. of Grand Man'an Island.
Guysborough Harbor, Lat, 45° 25' N., Long. 61° 30' W. The
harbor is long and narrow, about 8 miles deep and from £ to £ of
mile wide.
Liscomb Harbor, Lat. 45° N., Long. 62° W. The entrance to the
harbor is not over a mile wide.
Margaree (Margurite) Island, Lat, 46° 22' N., Long. 61° 16' W.
This is the same as Sea Wolf Island, so named on British Admiralty
Chart, 1847-1857, (Gulf of St. Lawrence, sheet X, No. 2727). In
the account of the seizure of Egret and Mars, September 5, 1841, by
United States Consul (ante, p. 468), it is called Sea Wolf Island, and
in the data contained in the report of the Registrar of the Vice Ad-
miralty Court at Halifax in 1852 (ante, p. 1078), it is called Mar-
garee Island.
Mabou (Cape or River) :
Cape Mabou, Lat. 46° 9' N., Long. 61° 27' W.
Mabou River, Lat. 46° 5' N., Long. 61° 29' W.
Papers Harbor, Lat, 44° 48' N., Long. 62° 39' W. The entrance to
the harbor is about \\ miles.
Port Hood Harbor, Lat, 46° N., Long. 61° 32' W. The harbor is
formed by Smith Island extending parallel with the mainland for
a distance of about 2£ miles; the width of the harbor is from £ to
li miles.
Ragged Island (Harbor), Lat. 43° 42' N., Long. 65° 6' W. The
widest entrance to the harbor is less than 2 miles wide.
° Where the word. " ruile " is used, it should always be understood to mean
the marine mile.
1307
1308 MISCELLANEOUS.
St. Ann Bay, Lat. 46° 20' N., Long. 60° 25' W.
Sandy Cove, Lat. 44° 30' N., Long. 66° 6' W.
Sea Wolf Island is the same as Margaree Island (which see).
Shelbume Harbor, Lat. 43° 42' N., Long. 65° 20' W. The harbor
is about 7 miles deep. Its entrances are about 1 mile wide.
Smoke, Gape, Lat. 46° 47' N., Long. 60° 21' W.
Trout Cove, Lat. 44° 33' N., Long. 66° 2' W. A very small bay,
less than | mile wide.
Two Island Harbor is stated to be on Grand Manan Island.
Turners Cove is stated to be in the Gut of Can-so.
Tusket Islands, Lat. 43° 36$' N., Long. 66° 4' W.
Whitehead Harbor (see Gull Cove}.
The foregoing data is obtained from the British Admiralty Charts
listed below.
List of Charts Published at the British Admiralty.
Chart
Number.
352. NORTH AMERICA. East Coast. Sheet 1. Bay of Fundy.
353. NORTH AMERICA. East Coast. Sheet 2. Bay of Fundy.
729. NOVA SCOTIA. S. E. Coast. Sambro I. to C. Canso.
730. NOVA SCOTIA. S. E. Coast. C. Sable to Sambro I.
2727. THE GULF OF ST. LAWRENCE, Sheet X. Cape Breton Island.
1651. NORTH AMERICA. East Coast. Nova Scotia, Prince Edward
I. and part of New Brunswick.
2034. NORTH AMERICA. East Coast. Gulf of St. Lawrence. North-
umberland Strait.
1134. GULF OF ST. LAWRENCE. Magdalen Islands.
1715. GULF OF ST. LAWRENCE. Chaleur Bay.
1621. NORTH AMERICA. East Coast. Canada. Entrance to the
River St. Lawrence.
305. LABRADOR. South Coast. Gulf of St. Lawrence. Great Me-
cattina I. to Pashasheeboo Point.
1422. NORTH AMERICA. East Coast. Labrador.
284. NORTH AMERICA. Gulf of St. Lawrence. Coasts of New-
foundland and Lower Canada. Cow Head Harbour to Ste.
Genevieve Bay, with the Canadian and Labrador coasts be-
tween Great Mekattina Island and Amour Pt.
232a. NEWFOUNDLAND. Southern Portion.
232b. NEWFOUNDLAND. Northern Portion.
290. NEWFOUNDLAND. South Coast. Placentia to Burin Harbour.
893. NEWFOUNDLAND. South Coast. Burin Harbour to Devil Bay,
including Miquelon Islands and Fortune Bay.
2141. NEWFOUNDLAND. South Coast. Richards Hr. to Ramea Is.
2142. NEWFOUNDLAND. South Coast. Ramea Is. to Indian Hr.
2143. NEWFOUNDLAND. South West Coast. Indian Harbour to
Cape Ray.
283. NEWFOUNDLAND. West Coast. Codroy Road to Cow Head
Harbour.
285. NEWFOUNDLAND. East Coast. Orange Bay to Gander Bay,
including Notre Dame and White Bays.
293. NEWFOUNDLAND. East Coast from Trinity Harbour to Cape
Freels.
296. NEWFOUNDLAND. East Coast. Cape Bonavista to Cape Bulls
including Trinity and Conception Bays.
o
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