but they need not enter nor clear, nor pay entrance or clearance fees. A registered vessel from district to district is, as to clearance and entrance, subject to the same rules as vessels under frontier license and enrolment, and, on the other hand, a licensed and enrolled vessel touching at a foreign port, does not thereby become subject to our tonnage duty, nor to clearance and entrance fees as if from a foreign port. It is for our own convenience that vessels are classified as fishermen, inasmuch as our laws control by minute regulations the business of fishing in respect to contracts with those so employed. They punish fishermen who desert, and protect fishermen in the divisions of the proceeds of the catch, but none of the laws thus defining and controlling fishing vessels make the vessels any the less American vessels, which within the concerted legislation of 1830, and President Jackson's proclamation of that year, are entitled to commercial privileges in Canadian ports.

WHAT SHALL THE RESPONSE BE?

And now comes the question: what shall be the character and limitations of the response? Shall we only exclude Canadian fish, or such fish and all Canadian vessels, or both of them, and all merchandise coming from Canada by any sort of a vehicle, including the vehicle?

Under what conditions can negotiation go on with the least injury to ourselves our dignity and self-respect? I cannot believe that the Government at London will persist in its present course unless inspired, for some occult reason, by a purpose to break friendly relations with ourselves, or otherwise under the will and at the mercy of its colony.

I have not had the time or strength, since your letter came, to go through the British statutes in order to ascertain in what respect the British "North American act" of 1867 has been modified, but under that enactment the Canadian Dominion is, in one sense, and in regard to specified subjects, self-governing. The Queen is, to be sure, empowered, by and with the advice and consent of the two Canadian houses, to make laws for Canada, but the following matters are defined as thus within the control of the provincial legislatures:

1. The regulation of trade and commerce.

10. Navigation and shipping.

12. Sea-coast and inland fisheries.

But yet none of those are defined as subjects within the exclusive powers of the provincial legislatures, so as to disregard the Queen's

assent.

ARTICLE XXIX OF ALABAMA TREATY.

Whether or not Article XXIX of the Alabama Treaty was left standing by the Act of Congress of June 28, 1883, and the President's proclamation thereunder, is an important preliminary question in the solution of the Canadian problem.

Articles XVIII and XIX, dealing with (compensated) reciprocal sea-fishing liberties, and Article XXI dealing with reciprocal fish-oil and fish free markets, and Article XXX, dealing with reciprocal conveyance of merchandise in bond, specified the terms of years they should be in force. So did Article XXIX, dealing with the recip

rocal privilege of transit, duty free, "of goods, wares and merchandise" arriving at certain American ports and destined for Canada, or arriving at any North American British ports and destined for the United States. Its language is this: "It is agreed that for the term of years mentioned in Article XXXIII," which article defines the specification thus: "In force for the period of ten years from the date at which they may come into operation; and further, until the expiration of two years after either of the high contracting parties shall have given notice to the other of its wish to terminate the same, each of the high contracting parties being at liberty to give such notice to the other at the end of said period, of ten years or at any time afterwards "; which is to say, 10 years plus a years plus 2 years; a being a variable determinable by the wish of either party.

The term of years thus identically specified in all the Articles XVIII, XIX, XXI, (XXVIII dealing with free British navigation of Lake Michigan), XXIX and XXX; thus defined in Article XXXIII, has been interpreted according to its obvious significance, with respect to all but two of those Articles (XXVIII and XXIX) by the initiative and act of the United States, June 28, 1883. Is this Government to be precluded from any other term of years of the XXIXth Article than that thus specified, defined, and interpreted? Or does the "term of years" mentioned in Article XXIX, as prescribing and limiting its life, refer to and include the variable in Article XXXIII, and contemplate its determination as to Article XXIX, specifically, in order to close its existence?

410 If the stipulations of Article XXIX are now binding on Great Britain, then it is indisputable that our vessels are entitled by the treaty to enter fish, as merchandise, at the proper custom-house of any Canadian port, for conveyance in bond to the United States. Of necessity, the vessel containing the fish is entitled to enter the port, in order to enter the merchandise at the proper custom-house.

No. 235.-1887, March 9: Letter from Lord Lansdowne (GovernorGeneral of Canada) to Sir Henry Holland (British Colonial Secretary).

[No. 67]

OTTAWA, 9th March, 1887. SIR,-In consequence of the repeated complaints which have been addressed to Her Majesty's Government, by that of the United States, of the manner in which the Canadian authorities have acted in enforcing against American fishing vessels the provisions of the Convention of 1818 and the Acts of Parliament passed for the purpose of giving effect to that Treaty, I have thought it my duty to invite the special attention of my advisers to the action of the Dominion fisheries police during the last fishing season, and to ask them to consider, upon a general review of the events of that season, and of the different cases in which vessels had been either denied privileges or had been seized or detained within Canadian waters for alleged infractions of the law, or otherwise interfered with by the officials of the Dominion; whether any amendment was called for in the instructions which had been issued by the Fisheries Department to the

officers in its employment, or in the procedure which has been resorted to in dealing with infractions of the Fishery or Customs Laws. 2. With regard to the spirit in which the Government of the Dominion desires to act in regard to these questions, I am glad to refer you again to the printed instructions issued on the 16th March, 1886, to all fishery officers in command of Government steamers and vessels engaged in the protection of the Inshore Fisheries of Canada. These instructions, after carefully defining the circumstances under which foreign fishing vessels may be detained, enjoin upon the officers to whom the instructions are addressed, the duty of performing the services in which they are engaged, with forbearance and discrimination.

It is especially pointed out that "foreign fishing craft may be driven into Canadian waters by violent or contrary winds, by strong tides or through misadventure or some other cause independent of the will of the master and crew." In such cases the fishery officer is desired to take these circumstances into his consideration and to "satisfy himself with regard thereto before taking the extreme step of seizing or detaining any vessels." In another passage special reference is made "to the general conciliatory spirit in which it is desirable that you should carry out these instructions, and the wish of Her Majesty's Government that the rights of exclusion should not be strained."

3. The information given to me by my Ministers affords no reason for believing that during the past season there has been any appreciable departure from the intentions of the framers of the instructions which I have quoted.

4. In almost every case in which complaints of the kind to which I have referred have been forwarded to me by your predecessors, I have been able to supply them with full information which has, I venture to think, been sufficient to show that as a rule, the complaints were founded upon ex parte and misleading statements and the action of the Canadian authorities entirely warranted by treaty and law. It is, indeed, I think, a matter for congratulation-considering the fact that my Government had to deal on the one hand with a body of fishermen accustomed to resort without molestation to Canadian waters and likely to resent any interference with the freedom of access which such fishermen had heretofore enjoyed, and on the other with a newly constituted police force of which the members were necessarily without experience in the novel and delicate duties entrusted to them, that no serious mistakes should have so far been committed.

5. I am, however, able to assure you that should there be any particular in respect to which Her Majesty's Government may desire to see the instructions already issued amended so as to prevent the possibility of hardships to vessels bonâ fide resorting to Canadian waters for any of the purposes permitted by the Convention of 1818, my. Government will take into its favourable consideration the suggestions which you may be disposed to make with this object.

6. In this connection, however, I may point out that in the despatches which have been addressed to Her Majesty's Government by Mr. Bayard, as well as in the reports presented to Congress, with a view to justify legislation upon these subjects, objection has been

92909°-S. Doc. 870, 61-3, vol 4- -54

taken not only to the interpretation which Canadian authorities have placed upon the law which they were called upon to administer, but apparently to the allowance of any discretion whatever to Canadian officials in dealing with acts of trespass committed by American vessels in Canadian waters. Of this a conspicuous illustration is afforded by the language used in the report recently presented to Congress by Mr. Edmunds, from the Committee on Foreign Relations, which contains the following passage:—

On the 12th May, 1870, the Dominion Act, 33 Vic., chap. 15, was passed, repealing the third section of the last-mentioned Act on the subject of bringing vessels

411

into port, &c., and provided, in lieu thereof, that any of the officers or persons before mentioned might bring any vessel being within any harbour in Canada, or hovering in British waters, within three miles of the coast into port, search her cargo, examine her master on oath, &c., without any previous notice to depart, which had been required by the former Act. So that an American vessel fishing at sea, being driven by stress of weather, want of wood or water, or need of repairing damages, which should run into a Canadian harbour, under the right reserved to it by the Treaty of 1818, the moment her anchor was dropped or she was within the shelter of a headland was, at the discretion of the Canadian official, to be immediately seized and carried into port, which might be, and often would be, many miles from the place where she could have her safe shelter or could obtain her wood and water or repair her daniages.

The Committee thinks it is not too much to say that such a provision is in view of the treaty and of the common principles of comity among nations, grossly in violation of rights secured by the treaty and of that friendly conduct of good neighbourhood, that should exist between civilised nations holding relations such as ought to exist between the United States and Her Majesty's Dominions. *

*

From all this it would seem that it is the deliberate purpose of the British Government to leave it to the individual discretion of each one of the numerous subordinate magistrates, fishery officers, and custom officers of the Dominion of Canada to seize and to bring into port any American vessels, whether fishing or other, that he finds within any harbour in Canada, or hovering within Canadian waters,

7. It is, I venture to submit, impossible to contrive any system for enforcing regulations for the protection of the Canadian Fisheries, or for the prevention of smuggling along the Canadian coast, no matter how liberal the spirit in which those regulations might be conceived, under which the initiative to be taken in each case should not be left to" the individual discretion" of Canadian officials. If no such discretion is allowed to these, if every intruding vessel is to be free after committing an act of trespass to depart without hindrance from the place in which that act was committed, subject merely to the chance of her being made liable for subsequent legal proceedings, the protection which it was intended to afford to the interests of the Dominion would become illusory and valueless.

8. The same argument applies to the enforcement against the American fishing vessels of the Canadian Customs Law. The acts of vessels which have been proceeded against under this law are constantly represented, as for instance on page 10 of the Report already quoted to be " merely formal or technical violations of some Canadian Customs Statute or Regulation." The Statute which has been enforced in these cases is, as I have more than once had occasion to point out, one which is consistently put into operation against all vessels resorting to Canadian waters nor it would it be possible to cease enforcing it against a particular class of vessels without giving to them opportunities for systematically, and with complete impunity, evad

ing the law upon coasts of which the configuration is particularly favourable to the operations of smugglers.

9. For these reasons I cannot hold out the expectation that my Government will abandon the position which I have described, and which may be summed up in the statement that it cannot recognise the right of the United States' fishing vessels to resort to Canadian waters except for the purposes specified in the Convention of 1818, and that it considers that its officials should have the discretion of determining in what cases and to what extent, subject to the ultimate decision of the courts, vessels entering those waters for a lawful purpose should comply with the requirements of the municipal law of the Dominion. With this reservation, my Government desires to afford to all foreign vessels every facility for availing themselves of the privileges to which they are entitled, and to avoid, as far as possible, attaching to the exercise of those privileges any condition of an irritating or vexatious character.

10. If you should be of opinion that any alterations are desirable in the procedure of the local authorities or in the instructions to which I have already referred, I trust that you will favour me with an expression of your views.

I have, &c.,

(Sd.)

LANSDOWNE.

The Right Hon. Sir HENRY HOLLAND, Bart., G.C.M.G.,

&c., &c., &c.

No. 236.-1887, March 10: Letter from Governor-General of Canada to Sir Henry Holland.

Confidential.

GOVERNMENT HOUSE, Ottawa, 10th March, 1887.

SIR, I had the honour of receiving your telegram of the 8th instant, in which you suggested that my Government should accept, subject to certain amendments, the proposal contained in Article III of Mr. Bayard's Memorandum, under which Her Majesty's Government and that of the United States would send two vessels each to cruise during the fishing season in the Gulf of St. Lawrence, and on the coast of Nova Scotia, for the purpose of investigating cases in which fishing vessels of the United States might be seized for violation of the provisions of the Convention of 1818.

My despatch "confidential" of December 28th, 1886, and the Order in Council enclosed in my despatch "secret" of February 1st, contained a reference to some of the objections felt by my Government to the procedure described in this Article. The amendments which are suggested in your telegram would, to some extent, but not entirely, remove those objections.

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Under the Article as it would stand after the introduction of your amendments, a vessel seized for contravention of the Convention of 1818 would, except where the commanding officers of the two "national vessels" were unanimous in considering that the charge. was not sustained, be sent for trial before the Vice-Admiralty Court at Halifax. While in this respect the Article as amended would be less open to objection than in its original shape, I fear that there are practical difficulties in the way of its adoption which are likely to be insurmountable, in spite of the earnest desire of my advisers to