No. 359. Mr. Drummond to Mr. Evarts. WASHINGTON, November 1, 1880. SIR: With reference to your note to Sir Edward Thornton of the 19th of April last, inquiring on behalf of your honorable colleague, the Secretary of the Treasury, whether American vessels laden with American products are allowed by the authorities of the Dominion of Canada to unlade at any points in their districts which Canadian collectors may designate, or whether they are compelled to unlade at ports of entry in such districts, I have the honor to transmit to you, herewith, copy of a report of the privy council for Canada, embodying a memorandum of the minister of customs, which contains the information desired by the Secretary of the Treasury. I have, &c., VICTOR DRUMMOND. [Inclosure.] Copy of a report of a committee of the honorable the privy council for Canada, approved by his excellency the governor-general, on the 23d day of October, 1880. On a dispatch, No. 29, of 20th of April, 1880, from Sir Edward Thornton, transmitting copy of a note and of its inclosure, which he has received from Mr. Evarts, inquiring whether United States merchant vessels are allowed to discharge their cargoes at places in Canada designated by Canadian collectors of customs, not being ports of entry: The honorable the minister of customs, to whom this dispatch with inclosure has been referred, reports that there is no restriction in this respect upon United States vessels which does not equally apply to Canadian vessels. That the act 40 Vic., cap. 10, section 8, provides that goods shall not be unladen from any vessel except after due entry, and at some place at which an officer of customs is appointed to attend, or for which a sufferance has been granted by the collector or other proper officer of customs, and that this provision applies equally to vessels of all nations. The committee recommend that a copy of this minute, when approved, be forwarded to Sir Edward Thornton. Certified. J. O. COTÉ, Clerk Privy Council Canada. No. 360. Mr. Drummond to Mr. Evarts. WASHINGTON, November 20, 1880. SIR: Sir Edward Thornton, in his note to you of March 1 last, informed you that he would transmit to his excellency the Marquis of Lorne a copy of the documents contained in your note to him of the 28th of February last, relating to the regulations governing the transportation of merchandise to, from, and through the Dominion of Canada. His excellency the governor-general of Canada has forwarded to me a copy of a report of a committee of the privy council of the dominion on this matter, a copy of which I inclose herewith, and I have much pleasure in informing you that the regulations as proposed by the United States Government have been approved by the privy council, and by his excellency the governor-general. I have, &c., VICTOR DRUMMOND. [Inclosure.] Copy of a report of a committee of the honorable the privy council for Canada, approved by his excellency the governor-general, on the 16th day of November, 1880. The committee of council have had under consideration the dispatch of Sir E. Thornton, dated Washington, March 1, 1880, relative to the regulations for the transportation of merchandise to, from, and through the Dominion of Canada, and also the dispatch of Sir M. E. Hicks Beach, of the 31st March, No. 97, on the same subject. The honorable the minister of customs, to whom the dispatches with the proposed regulations have been referred, reports that, having carefully considered said regulations, he is of opinion that they may be approved. The committee recommend that the proposed regulations be approved accordingly. J. O. COTÉ, CORRESPONDENCE WITH THE GOVERNMENT OF GREAT No. 347.] No. 361. Mr. Evarts to Mr. Welsh. DEPARTMENT OF STATE, SIR: You will readily understand that the pressure of current business, 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 during the session, as would enable me to give, in reply, a full consideration 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 occurrences 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 gov ernment 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 Commission 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 Government 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 provoked by the occurrences in Newfoundland should be confused with each other, and least of all would I have been willing that the simultaneous presentment of the views of this government should be construed as indicating any desire on our part to connect the settlement 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 gov ernments 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 transmitted 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 demonstrate conclusively that the United States fishermen on this occasion had committed three distinct breaches of the law, and that no violence 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 violation of the law of the colony and of the local custom, and who threatened 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 legislation. In addition Captain Sulivan reported that the United States fishermen were, contrary to the terms of the treaty of Washington 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 permitted 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 government that the assumption of the report was that the United States 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 privileges secured to United States fishermen by the treaty of 1871 were held subject to such limitations as might be imposed upon their exercise 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 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. Her Majesty's Government will readily admit-what is, indeed, self-evident-that British sovereignty, as regards those waters, is limited in its scope by the engagements of the treaty of Washington, which cannot 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 enjoy ment by our people of the inshore fishery." 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's dispatch that he considers 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. 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 Government 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 ar gument 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 Britannic 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 exist ence of such contravention must be undertaken by the governments, and cannot 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 treaty, a Newfoundland tisherman 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 accompa nied by violence which affects the rerson or property of an individual, and that individual may be warranted in resisting such illegal violence, so far as it directly affects him, wit out 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 as sume both to interpret and administer 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 Ued States cannot 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. 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 authorities. 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 authority, but by mob violence. They made no resistance, withdrew from the fishing grounds, and represented the outrage to their government, 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 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 cannot 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 cannot recall any language of mine in this correspondence 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 British sovereignty, as regards these waters, is limited in its scope by the engagements of the treaty of Washington, which cannot be affected or modified by any municipal legislature. 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 these waters must be delivered over to anarchy, it will not be in consequence 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 |