No. 205.-1886, July 10: Letter from Mr. Bayard United States Secretary of State, to Sir L. S. S. West (British Minister).

DEPARTMENT OF STATE,

Washington, 10th July, 1866.

SIR, On the 2nd of June last, I had the honour to inform you that despatches from Eastport, in Maine, had been received, reporting threats by the Customs officials of the Dominion to seize American boats coming into those waters to purchase herring from the Canadian weirs for the purpose of canning the saine as sardines, which would be a manifest infraction of the right of purchase and sale of herring caught and sold by Canadians in their own waters in the pursuance of legitimate trade.

To this note I have not had the honour of a reply.

To-day Mr. C. A. Boutwell, M. P., [M. C.] from Maine, informs me that American boats visiting St. Andrews, N. B., for the purpose of there purchasing herring from the Canadian weirs for canning had been driven away by the Dominion cruiser " Middleton."

Such inhibition of usual and legitimate commercial contracts and intercourse is assuredly without warrant of law, and I draw your attention to it in order that the commercial rights of citizens of the United States may not be thus invaded and subjected to unfriendly discrimination.

I am, &c.,

The Hon. SIR L. S. WEST, K.C.M.G.

(Sd.)

T. F. BAYARD.

&c., &c., &c.

330 No. 206.-1886, July 16: Letter from Mr. Bayard (United States Secretary of State) to Hon. C. Hardinge (British Chargé d'Affaires at Washington).

WASHINGTON, 16th July, 1886. SIR, I have just received through the Hon. C. A. Boutelle, M. C., the affidavit of Stephen R. Balkam, alleging his expulsion from the harbour of St. Andrews, N. B., by Captain Kent of the Dominion cruiser "Middleton," and the refusal to permit him to purchase fish, caught and sold by Canadians, for the purpose of canning as sardines. The action of Captain Kent seems to be a gross violation of ordinary commercial privileges against an American citizen, proposing to transact his customary and lawful trade and not prepared, or intending, in any way to fish or violate any local law, or regulation, or treaty stipulation.

I trust instant instructions to prevent the recurrence of such unfriendly treatment of American citizens may be given to the offending officials at St. Andrew's and reparation be made to Mr. Balkam. I have, &c.,

The Hon. C. HARDINGE,

(Sd.)

T. F. BAYARD.

No. 207.-1886, July 16: Telegram from Mr. Bayard (United States Secretary of State) to Mr. Phelps (United States Minister at London). [Translation of Cypher Telegram Received at the Legation, July 16, 1886.]

PHELPS, Minister, London.

You will state to Lord Rosebery that realizing fully any embarrassment or delays attendant upon pending changes of British Administration, it is our duty to call upon Imperial Government to put a stop to the unjust, arbitrary and vexatious action of Canadian authorities towards our citizens engaged in open sea fishing and trading but not violating or contemplating violation of any Law or Treaty. Our readiness long since expressed to endeavour to come to a just and fair joint interpretation of Treaty rights and commercial privileges is ill met by persistent and unfriendly action of Canadian authorities which is rapidly producing a most injurious and exasperating effect. I am without reply from British Minister, who is now absent.

BAYARD.

No. 208.-1886, July 22: Report of the Canadian Minister of Justice.

To his Excellency the Administrator of the Government in Council.

DEPARTMENT OF JUSTICE,

Ottawa, 22nd July, 1886.

With reference to the despatch of the 24th June last, from the Secretary of State for the Colonies to your Excellency respecting the Fisheries Question, and enclosing copies of letters on the subject from the Foreign Office to the Colonial Office, and of one from Mr. Phelps to the Secretary of State for Foreign Affairs, the undersigned has the honour to report as follows:

The letter of Mr. Phelps seems designed to present to Earl Rosebery the case of the "David J. Adams," the fishing vessel seized a short time ago near Digby, in the province of Nova Scotia.

Mr. Phelps intimates that he has received from his Government a copy of the report of the Consul General of the United States at Halifax, giving full details and depositions relating to the seizure, and that that report, and the evidence annexed to it, appear fully to sustain the points which he had submitted to Earl Rosebery at an interview which he had had a short time before the date of his letter.

The report of the Consul General and the depositions referred to seem not to have been presented to Earl Roseberry, and their contents can only be inferred from the statements made in Mr. Phelps' letter. These statements appear to be based on the assertions made by the

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persons interested in the vessel by way of defence against the complaint under which she was seized, but cannot be regarded as presenting a full or accurate representation of the case. The undersigned submits the facts in regard to this vessel, as they are

alleged by those on whose testimony the Government of Canada can rely to sustain the seizure and detention.

The Offence as to the Treaty and Fishery Laws.

The "David J. Adams" was a United States' fishing vessel, whether, as alleged in her behalf, her occupation was deep sea fishing or not, and whether, as suggested, she had not been engaged, nor was intended to be engaged, in fishing in any limit proscribed by the Treaty of 1818 or not, are questions which do not, in the opinion of the undersigned, affect the validity of the seizure and of the proceedings subsequent thereto, for reasons which will be hereafter stated; but in so far as they may be deemed material to the defence, they are questions of fact which remain to be proved in the Vice-Admiralty Court of Halifax, in which the proceedings for the vessel's condemnation are pending, and in respect of which proof is now being taken, and inasmuch as the trial has not been concluded (much less a decision reached) it is perhaps premature for Mr. Phelps to claim the restoration of the vessel, and to assert a right to damages for her detention, on the assumption of the supposed facts above referred to. It is alleged in the evidence on behalf of the prosecution that the David J. Adams," being a United States' fishing vessel, on the morning of the 5th of May, 1886, was in what is called the " Annapolis Basin," which is a harbour on the north-west coast of Nova Scotia. She was several miles within the Basin, and the excuse suggested (that the captain and crew may have been there through a misapprehension as to the locality) by the words of Mr. Phelps' letter, "Digby is a small fishing settlement and its harbour not defined," is unworthy of much consideration.

Digby is not a fishing settlement, although some of the people on the neighbouring shores engage in fishing. It is a town, with a population of about two thousand persons. Its harbour is formed by the Annapolis Basin, which is a large inlet of the Bay of Fundy, and the entrance to it consists of a narrow strait marked by conspicuous headlands which are little more than a mile apart. The entrance is called "Digby Gut" and for all purposes connected with this enquiry, the harbour is one of the best defined in America.

TheDavid J. Adams" was, on the morning of the 5th day of May, 1886, as has already been stated, several miles within the Gut. She was not there for the purpose of "shelter" or "repairs" nor to purchase wood" nor "to obtain water." She remained there during the 5th and on the 6th May, 1886, she was lying at anchor about half a mile from the shore, at a locality called" Clements West."

On the morning of the 6th May, 1886, the captain made application to the owners of a fishing weir, near where he was laying for bait, and purchased four and a-half barrels of that article. He also purchased and took on board, about two tons of ice. While waiting at anchor for these purposes the name of the vessel's "hailing place" was kept covered by canvas, and this concealment continued while she afterwards sailed down past Digby.

One of the crew represented to the persons attending the weir that the vessel belonged to the neighbouring province of New Brunswick. The captain told the owner of the weir, when the Treaty was spoken of by the latter, that the vessel was under British register.

The captain said he would wait until the next morning to get more bait from the catch in the weir which was expected that day. At daybreak, however, on the morning of the 7th of May, 1886, the Government steamer "Lansdowne" arrived off Digby, and the "David J. Adams" got under way without waiting to take in the additional supply of bait, and sailed down the Basin towards the Gut.

Before she had passed Digby she was boarded by the first officer of the "Lansdowne" and to him the captain made the following statement: that he had come to that place to see his people, as he had formerly belonged there, that he had no fresh bait on board, and that he was from the "Banks" and bound for Eastport, Maine.

The officer of the "Lansdowne " told him he had no business there. and asked him if he knew the law. His reply was "Yes."

A few hours afterwards, and while the "David J. Adams," was still inside the Gut, the officer of the "Lansdowne," ascertaining that the statements of the captair were untrue, and that bait had been purchased by him within the harbour on the previous day, returned to the "David J. Adams," charged the captain with the offence, and received for his reply the assertion that the charge was false, and that the person who gave the information was a "liar."

The officer looked into the hold of the vessel and found the herring which had been purchased the day before, and which, of course, was perfectly fresh, but the captain declared that this "bait" was ten days old.

The officer of the "Lansdowne" returned to his ship, reported the facts, and went again to the "Adams," accompanied by another officer, who also looked at the bait. Both returned to the "Lansdowne and then conveyed to the "Adams" the direction that she should come to Digby and anchor near the "Lansdowne." This was, in fact, the seizure.

These are the circumstances by which the seizure was, in the opinion of Mr. Phelps. "much aggravated," and which makes it seem very apparent to him that the seizure "was not made for the purpose of enforcing any right, or redressing any wrong,"

The fact that the seizure was preceded by visitations and searches was due to the statements of the master, and the reluctance of the officers of the "Lansdowne " to enforce the law until they had ascertained to a demonstration that the offence had been committed, and that the captain's statements were untrue.

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THE OFFENCE AS TO CUSTOMS' LAWS.

The "David J. Adams," as already stated, was in the harbour upwards of forty-eight hours, and, when seized, was proceeding to sea, without having been reported at any Customs House. Her business was not such as to make it her interest to attract the attention of the Canadian authorities, and it is not difficult, therefore, to conjecture the reason why she was not so reported, or to see that the reason put forward that Digby is but a small fishing settlement and its harbours not defined," is a disingenuous one. In going to the weir to purchase bait, the vessel passed the Customs House at Digby, almost within hailing distance. When at the weir, she was within one or two miles of another Customs House (at Clementsport), and within about fifteen miles of another (at Annapolis). The master

has not asserted that he did not know the law on this subject, as it is established that he knew the law in relation to the restriction on foreign fishing vessels.

The provisions of the Customs Act of Canada on this subject are not essentially different from those of his own country. The captain and crew were ashore during the 5th and 6th of May, 1886. The following provisions of the Customs Act of Canada apply:

The master of every vessel coming from any port or place out of Canada, or coastwise, and entering any port in Canada, whether laden or in ballast, shall go without delay when such vessels is anchored or moored, to the Custom House for the port or place of entry where he arrives, and there make a report in writing to the Collector or other proper officer, of the arrival and voyage of such vessel, stating her name, country and tonnage, the port of registry, the name of the master, the country of the owners, the number and the names of the passengers, if any, the number of the crew, and whether the vessel is laden or in ballast, and if laden, the marks and numbers of every package and parcel of goods on board, and where the same was laden, and the particulars of any goods stowed loose, and where and to whom consigned, and where any and what goods, if any, have been laden or unladen, or bulk has been broken, during the voyage, what part of the cargo, and the number and names of the passengers which are intended to be landed at that port, and what and whom at any other port in Canada, and what part of the cargo, if any, is intended to be exported in the same vessel, and what surplus stores remain on board, as far as any of such particulars are or can be known to him.-46 V., c. 12, s. 25.

The master shall at the time of making his report, if required by the Officer of Customs, produce to him the bills of lading of the cargo, or true copies thereof, and shall make and subscribe an affidavit referring to his report, and declaring that all the statements made in the report are true, and shall further answer all such questions concerning the vessel and cargo, and the crew and the voyage, as are demanded of him by such officer, and shall, if required, make the substance of any such answer part of his report.-46 V., c. 12, s. 28.

If any goods are unladen from any vessel before such report is made, or if the master fails to make such report, or makes an untrue report, or does not truly answer the questions demanded of him, as provided in the next preceding section, he shall incur a penalty of four hundred dollars, and the vessel may be detained until such penalty is paid.-46 V., c. 12, s. 29.

These have been made the subject of a complaint by Mr. Phelps, although the explanations which were given in the previous memorandum of the undersigned (in reference to the letters of Mr. Bayard to Her Majesty's Minister at Washington) and in the report, on the same subject, of the Minister of Marine and Fisheries, laid before his Excellency the Governor General on the 14th June, ultimo, coupled with a disavowal by the Canadian Government of any intention that the proceedings in such cases should be unnecessarily harsh or pursued in a punitive spirit, might have been expected to be sufficient. After the seizure was made, the Commander of the "Lansdowne" took the "David J. Adams" across the Bay of Fundy to Saint John, a distance of about forty miles. He appears to have had the impression that, as his duties would not permit him to remain at Digby, the vessel would not be secure from rescue, which has in several cases occurred after the seizure of fishing vessels. He believed she would be more secure in the harbour of Saint John, and that the legal proceedings, which in due course would follow, could be taken there. He was immediately directed, however, to return with the vessel to Digby, as it seemed more in order, and more in compliance with the