them." The "restrictions to be imposed upon the American fishermen, while in portion B, are expressly limited, not to such as concern navigation or revenue, but to such as were specifically renounced, namely, to such 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 " in order to take, dry, or cure fish therein.

Was it not clearly the intention of the negotiators of this treaty that the character of these restrictions should be agreed upon by the parties to the treaty? Is it reasonable to assume that the American negotiators intended that the Canadian provinces, or even the British Government, should have the exclusive power to prescribe "restrictions" which might entirely destroy the value of any unrenounced right and liberty theretofore claimed and enjoyed, or of any conceded "privileges" thereby reserved to American fishermen in portion B?

These preliminary explanations will assist to measure the force and bearing upon American deep-sea fishermen of the interpretation put upon the treaty by the Canadian Dominion during the last

summer.

The following extracts are taken from the message of the President to Congress of the 8th ultimo.

WHAT CANADA HAS SAID.

On 5th June, 1886, the Canadian Minister of Marine and Fisheries declared:

It appears the "Jennie and Julia" is a vessel of about 14 tons register, that she was to all intents and purposes a fishing vessel, and, at the time of her

entry into the Port of Digby had fishing gear and apparatus on board, 380 and that the collector fully satisfied himself of these facts. According to

the master's declaration, she was there to purchase fresh herring only, and wished to get them direct from the weir fishermen. The collector, upon his conviction that she was a fishing vessel, and, as such, debarred by the treaty of 1818 from entering Canadian ports for the purposes of trade, therefore, in the exercise of his plain duty, warned her off.

The treaty of 1818 is explicit in its terms. and by it United States' fishing vessels are allowed to enter Canadian ports for shelter, repairs, wood, and water, and " for no other purpose whatever."

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The undersigned is of the opinion that it cannot be successfully contended that a bona-fide fishing vessel can, by simply declaring her intention of purchasing fresh fish for other than baiting purposes, evade the provisions of the treaty of 1818, and obtain privileges not contemplated thereby. If that were admitted, the provision of the treaty which excludes United States' fishing vessels for all purposes but the four above-mentioned would be rendered null and void, and the whole United States' fishing fleet be at once lifted out of the category of fishing vessels and allowed the free use of Canadian ports for baiting, obtaining supplies, and transhipping cargoes.

It appears to the undersigned that the question as to whether a vessel is a fishing vessel or a legitimate trader or merchant vessel is one of fact, and to be decided by the character of the vessel and the nature of her outfit, and that the class to which she belongs is not to be determined by the simple declaration of her master that he is not at any given time acting in the character of a fisherman.

At the same time the undersigned begs again to observe that Canada has no desire to interrupt the long established and legitimate commercial intercourse with the United States, but rather to encourage and maintain it, and that Canadian ports are at present open to the whole merchant navy of the United States on the same liberal conditions as heretofore accorded.

On 7th of June, 1886, the Canadian Governor General advised the Minister of Foreign Affairs at London:

No attempt has been made either by the authorities entrusted with the enforcement of the existing law or by the Parliament of the Dominion to interfere with vessels engaged in bona-fide commercial transactions upon the coasts of the dominion. The two vessels which have been seized are both of them beyond all question fishing vessels, and not traders, and therefore liable, subject to the findings of the courts, to any penalties imposed by law for the enforcement of the convention of 1818 on parties violating the terms of that convention.

On 14th June, 1886, a committee of the Privy Council for Canada. put forth the following opinions and conclusions, which were approved by the Governor General:

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 thenceforward to enjoy in following their vocation, so far as those rights could be affected by facilities for access to the shores of waters or [or waters of] the British provinces, or for intercourse with their people. It is, therefore, 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 agreement relating to general commercial intercourse which may have since been made, permission were accorded to United States' fishermen to resort habitually to the harbours 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 these harbours as a general base of operations from which to prosecute and organize with greater advantage to themselves the industry 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 harbours, 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 contention 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 permit to "touch and trade" should give to 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 licence originally 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 supplies 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. On August 14, 1886, the Minister of Marine and Fisheries said: There seems no doubt, therefore, that the "Novelty" was in character and in purpose a fishing vessel, and as such comes under the provisions of the 381 treaty of 1818, which allows United States' fishing vessels to enter Canadian ports" for the purpose of shelter and repairing damages therein, and of purchasing wood and of obtaining water, and for no other purpose whatever."

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

On October 30, 1886, a committee of the Canadian Privy Council contended, and the administrator of the government in council upheld the contention:

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 collector.

On November 24, 1886, a committee of the Canadian Privy Council declared, and the Governor General approved the declaration:

The Minister of Marine and Fisheries, to whom said despatch 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 restrictions imposed upon any foreign vessels dealing in fish of any kind different from those imposed upon foreign merchant vessels dealing in other commercial commodities.

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 desti nation.

AMERICAN FISHERMEN ARE NOT OUTCASTS.

The foregoing contention, set up not merely by the Canadian Privy Council, but by the governor general of the Dominion of Canada, sweeps into the meshes of Canadian legislation to enforce the first article of the treaty of 1818, every deep-sea fisherman in his relation to Canadian ports, no matter on what sea or ocean, Atlantic or Pacific, he may have pursued, or may intend to pursue, his industry. That contention places all American deep-sea fishermen entitled to wear the flag of the Union at the mast-head of their boats or vessels, be they little or big, under much the same ban in respect to the hospitality of Canadian ports as they would be if pirates, or slavetraders, or filibusters, or other enemies of the human race. "She was a fishing vessel," says, on June 5, 1886, the Canadian Minister of Marine and Fisheries, " and therefore debarred by the treaty of 1818 from entering Canada for the purposes of trade." "The two vessels which have been seized are, both of them, beyond all question fishing vessels, and not traders," says the governor general of the Dominion of Canada to Lord Granville on June 7, 1886, " and therefore liable, subject to the finding of the courts, to any penalties imposed by law for the enforcement of the convention of 1818." "We cannot concur in Mr. Bayard's contention," said the Canadian Privy Council on June 14, 1886, 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 give to it an effect never contemplated." "American deep-sea fishermen cannot," said the Canadian Minister of Marine and Fisheries, on October 14, 1886, "obtain supplies for the prosecution of his fishing, and to tranship his cargoes of fish at a Canadian port," because both" are contrary to the letter and spirit of the convention of 1818." "The convention of 1818," said a committee of the Canadian Privy Council, on October 30, 1886," does not

confer upon United States fishermen' privileges of trading or of shipping men' in Canadian ports." And, finally, a committee of the Canadian Privy Council declared, in effect, on November 24, 1886, that an American vessel, manned, equipped, and prepared for taking fish, has not the liberty of commercial intercourse in Canadian ports, such as are applicable to other regularly registered foreign merchant vessels.

Such an interpretation of the present legal effect of the first article. of the treaty of 1818, is, in the opinion of your Committee, so preposterous, in view of concerted laws of comity and good neighbourhood enacted by the two countries, that, had it not been formally put forth by the Dominion of Canada, would not deserve serious consideration by intelligent persons. If all the stipulations of 1818 restraining American fishermen are now in full force (which may well be doubted), your Committee concedes that American fishermen have no more liberty to take fish or to dry or cure fish in what has been described as portion B, than a British fisherman has to take fish in the inner harbour of New York, and to dry or cure fish in the City Hall Park of that city. But the liberty of an American fisherman to take, dry, and cure fish in portion A, in common with British subjects, is as complete and absolute as is the right of citizens of New York to fish in the waters of the Hudson River. The treaty of 1818 furnishes no more excuse for the exclusion of a deep-sea fisherman from the port of Halifax, or any other open port of the Dominion of Canada, than for the exclusion by the secretary of the Treasury of a deep-sea fisherman from entering the port of New York according to the forms of law, and for the ordinary purposes of trade and commerce. The exclusion, if made, must be justified, if at all, for other reasons than any yet given by Canada.

382 Keeping in mind the words of the third article of the treaty of peace in 1783, which not only acknowledged the right of the united American colonies to fish in the open sea as freely as to navigate the open sea, but also acknowledged and stipulated for the liberty to "take fish of every kind" on coasts, bays, and creeks of all of His Britannic Majesty's dominions in America, it will be discerned that this contention of the Privy Council of Canada makes of the renunciation by the United States, in 1818, of the liberty theretofore enjoyed or claimed by American fishermen within three miles of certain carefully defined coasts, bays, creeks, or harbours, not merely a renunciation of specific local liberty, but a forsaking, a relinquishment a surrender, an abandonment by the United States of other rights held up to 1818.

CERTAIN CANADIAN COASTS ARE SUBSERVIENT TO AMERICAN FISHERMEN.

The treaty of 1783 diminished and impaired, and was intended to diminish and impair, British sovereignty over the remaining British colonies of North America. The United States had conquered full and complete dominion over the right of fishing in the jurisdictional waters of each of the thirteen United States, but the British colonies did not emerge from the negotiations of the treaty of peace with similar dominion over the fisheries on the shores and coasts of the thirteen recognised States. British fishermen cannot fish on the coasts of Massachusetts, but American fishermen can fish on certain shores and

coasts of the Dominion of Canada and of Newfoundland. Apart from fishing and the incidents of fishing, it is conceded that the British Government has exclusive control, as against the United States, of the customary and usual rights of navigation in the jurisdictional waters of the British colonies. What we claim for ourselves, under the rules of public law, and apart from treaties, we concede to others. Rights of navigation are ordinarily separate from rights of fishing. The Commonwealth of Massachusetts may control the right and liberty of fishing on her coast, as against any Power other than the Government of Washington, but the right of navigation of the jurisdictional waters of Massachusetts is always subject to the control of the United States. The use of waters in respect of navigation is easily distinguishable from the fruit of waters in respect to fishing or fish. The United States have, so far as the British North American colonies, and all the world, are concerned, the right of navigating and fishing on the high seas, and in addition the right of fishing in certain British territorial and jurisdictional waters. That right of fishing, either inshore or offshore, should carry with it the natural and necessary navigating incidents of the right.

It may be conceded that, apart from the right of American fishermen to take fish of all kinds within certain clearly defined British waters, American deep-sea fishermen have no greater rights, by treaty or public law, in British ports, than British fishermen have in American ports, so far as concerns revenue police, maritime tolls or taxes, pilotage, lighthouses, quarantine, and all matters of ceremonial. But the contention of the Privy Council of Canada is that if a vessel bearing the registry, or enrolment, or licence of the Treasury department (which alone makes her an American vessel) be licensed, equipped and under contract with her seamen as an American fisherman on the open sea, she thereby comes under the ban of the treaty of 1818, and is thereby abandoned by the nation whose flag is at her mast-head, and is, by the treaty, excluded from an entrance into a Canadian or Newfoundland port, excepting for one of the objects enumerated in that treaty. Canadian ports are closed to her as to an outcast. An American or a Canadian fishing vessel on the high seas. and lawfully wearing the flag of its country, should be, if permitted by its own Government to touch and trade, entitled to the same rights of navigation and the same treatment in a foreign port as any trading

CANADIAN INHUMANITY.

If the Privy Council and the Governor General of the Canadian Dominion excluded all American vessels from all rights of touching or trading in Canadian ports, excepting to obtain shelter, repairs, wood or water, the contention would be logical and more tolerable; but to every American vessel other than a fishing vessel, be the fisherman big or little-a schooner, a sloop, a ship, or a steamer of large tonnage Canadian ports seem to be wide open. If, however, she be an American fishing vessel on the high seas, she cannot go into a Canadian bay even to bury those of her dead who, in life, may have been British subjects with a domicile in Canada and a residence on the land near the bay, and may have expressed a wish not to be committed to the sea, but to be lain at rest by their kindred on the spot which gave them birth.