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By referring to Article XI, it will be seen that our vessels, when under stress of weather or from other casualty, are compelled to enter the ports, bays, and harbors of "eastern and northeastern coasts of Canada or of the coasts of Newfoundland” they may be allowed to “unload, reload, transship, or sell, subject to the customs laws and regulations, all fish on board, when such unloading, transshipment, or sale is made necessary as incidental to repairs, and may replenish outfits, provisions, and supplies damaged or lost by disaster ; and in case of death or sickness shall be allowed all needful facilities, including the shipping of crews.”
In the succeeding paragraph, liberty is granted to United States fishing-vessels to obtain such provisions and supplies as are sold to ordinary trading-vessels, for their homeward voyage, providing these vessels obtain a license of the customs official, and that the supplies are not obtained by barter.
In view of the fact, as has previously been stated, that all classes of Canadian vessels are enjoying full commercial privileges in the ports of the United States, it does seem remarkable that the granting of the ordinary courtesies of civilization, privileges which no Christian nation is supposed to deny to another in case of distressed and shipwrecked mariners, is here made a right to be gravely considered between two friendly and adjacent countries. And when by Article XXIX of the treaty of 1871, which still remains in force, it is stipulated that goods, wares, and merchandise for Canada may be landed at Portland, Boston, New York, and other ports designated by the President, and transshipped through the territory of the United States without payment of duty, and that goods, wares, and merchandise for the United States may be landed in Canadian ports and transshipped through Canada without payment of duty, it certainly is surprising that the privilege of transshipping fish, as stated in this last treaty, is made conditional, and is applicable only to a vessel in distress or to one partially shipwrecked, having its catch on board, And this provision is made still more striking when it is considered that at the present moment the United States is faithfully observing its portion of the treaty, and even extending to the Canadians greater privileges than they are entitled to. It is only explainable when we consider how different has been the conduct of Canada during the past two years, for she has systematically violated this treaty by denying to American fishermen the right to land and transship their cargoes. It is evident that her policy in doing this has been to give the impression, when this new treaty was made, that she granted
privilege to our fishermen, when in fact by this clause of the present treaty they are to be denied the enjoyment of rights to which they are justly entitled. There can be no question about the meaning of the following clause of the treaty of 1871, which has never been repealed.
“It is further agreed that for the like period goods, wares, or merchandise, arriving at any of the ports of Her Britannic Majesty's possessions in North America and destined for the United States, may be entered at the proper custom-house and conveyed in transit, without the payment of duties, through the said possessions under such rules and regulations and conditions for the protection of the revenue as the governments of the said possessions may from time to time prescribe; and under like rules, regulations, and conditions goods, wares, or merchandise may be conveyed in transit, without payment of duties, from the United States through the said possessions to other places in the United States, or for export from ports in the said possessions.'
A writer in the New York Tribune of February 27, 1888, says:
“Under this article of the treaty of 1871 American fishermen have a clear commercial right to land fish in any Canadian port for transshipment in bond to the United States. Fish and fish oil are merchandise, and may be entered at a Canadian custom-house without payment of duty for transportation to the United States. Fishermen have the same privileges in this respect which Canadian or British vessels have when they land in American ports goods destined for Canada. If they have not been allowed this privilege it has been because they were deprived illegally in Canadian ports of a commercial right that is positively guaranteed by treaty.”
He thinks that in the present treaty an attempt has been made "to remove the sanction of treaty law by prohibiting the exercise of this right while the duties on fish and fish oil remain in the tariff schedule. In this respect Article XV of the new treaty operates directly to prevent the transshipment of fish and to rob American fishermen of one of their treaty rights.”
So far as these limited privileges are concerned, which have apparently been grudgingly granted to American vessels in distress, or those on the homeward voyage, it is well to consider the following able statements from the pen of Judge Charles Levi Woodbury:
“Canada has begun this affair. Her excuse is that the words 'for no other purpose' in the treaty of 1818 permanently exclude our fishermen. She disregards the fact that the agreements of 1830 expressed that they were based on the respective removal of all restrictions on commerce and discriminations on tonnage.'
“It is a disingenuous excuse. Clearly, in the fishing treaty of 1818, the words for no other purpose' rebut the idea that commercial or unnamed trading privileges were intended to be granted to vessels of the United States. Great Britain had closed all her colonial ports from foreign vessels by law. She opened them in the same way by the proclamation of 1830, and they stand open until closed by law. Since the proclamation the fishing-vessels of Canada have enjoyed, in the ports of the United States, every privilege of commerce flowing from those proclamations. Not only did Canada know this, but a perverse disposition has induced her, while continuing in their unrestricted use and enjoyment, to endeavor to deprive our fishermen of their similar right in Canada.
“There was, after 1830, no law prior to this of 1886 which excluded our fishermen from trading or transshipping cargoes in Canadian ports destined for the United States. Canada, however, claims that the British act of 1819 excludes American fishermen from 'buying bait' in her ports. By this statute if a foreign vessel, within the waters where the right to fish has been renounced by the United States, or any persons on board, 'shall be found fishing or to have been fishing, or preparing to fish' within such distance of the coasts, etc., the vessel shall be seized, prosecuted, condemned, etc.
"The clause states that the method of proceeding shall be the same as in proceedings under customs or navigation acts. The preamble of the statute reads, 'to make regulations respecting the taking and curing of fish,' etc. This does not look like a law to prevent the buying and exporting of bait, a matter at that time decisively covered by the act of 12 Charles 11, then in full force.
"Careful examination was made at the time of the Halifax Commission of all the records of seizures of American fishermen, and it was found that prior to 1870 not one had been charged with “buying bait' as a violation of the clause " preparing to fish.'
“In 1870, for the first time, this construction was set up and two American vessels seized, and, among other matters, libeled for buying bait in open port, in alleged infringement of the act of 1819."* The same excellent authority says:
“ Buying and selling bait, like the importation or exportation of it, are commercial transactions, and, therefore, by the pledged faith of the proclamation of 1830, open to commerce by the vessels of each country.”
And in spite of all this evidence of the clearly established rights of American fishermen to enjoy commercial privileges in the ports of Canada, and although it is demonstrated that they may, under certain clauses of the treaty of 1871, which still remain in force, transship their cargoes, and that they should be entitled, as one of their rights, to buy bait in all ports of the British provinces, we see in this treaty which the Senate is called upon to ratify a positive denial of these rights and privileges. How is it, we may well ask, that the welfare of the American fisheries has received so little consideration that these sacrifices have been made in this treaty, when no restriction whatever is put upon the Canadians in the matter of buying bait or making other purchases in our ports? The fact that American fishermen may be able to prosecute the cod and halibut fishery without depending upon the British provinces for bait, is no reason why this privilege or the right to purchase ice or other stores should be given up, unless the citizens of Canada are restricted in a similar man
When former treaties have been negotiated, wherein the welfare of the fisheries have been concerned, it may have been pleaded in extent uation of any mistakes that have been made that the gentlemen charged with the responsible duty of negotiation may have lacked that definite knowledge of the subject under consideration, which might have enabled them to avoid mistakes, and which might make it possible to state the terms of the treaty so clearly and so explicitly
* The Canadian Fisheries Dispute. By Judge Charles Levi Woodbury. American Law Reporter, May-June, 1887.
that it could not well be misunderstood. But no excuse of this kind can be offered in the present case. If the negotiators" charged with the duty of representing the interests of the American fishermen in this case are not well informed upon the subject they had to deal with it is not because they lacked the requisite sources of information. Not only have the rights and needs of the American fisherinen, under previous treaties, and all matters pertaining to this controversy, been fully set forth in the public press and pamphlets prepared by the highest legal authorities, but the fishermen of the United States have sent to Washington, and have maintained there during the progress of these last negotiations, representatives who were ready to state their claims and give expression to their needs and their wishes. It is a rather remarkable commentary to this entire proceeding that since the abrogation of the fishery clauses of the treaty of 1877, and during the progress of these last negotiations, no authorized agent of the Atlantic fishermen has been called upon to state their case in a personal interview with the gentlemen who were officially charged with the responsible duties of negotiating for the rights of the fishermen. This is a matter for still greater surprise, considering the fact that the officers of the fishery associations have sought to state their case in personal interview, and have not been granted this privilege.
Considering the fact that the State Department has had correspondence with the British Government in relation to the denial of American fishermen of the right to purchase coal in the British provinces, and in view of the fact that the day may not be far distant when steam may be extensively employed in our ocean food-fisheries, it appears to be a serious omission that no provision has been made in this last treaty which will enable such vessels to obtain the necessary fuel in provincial ports, unless this privilege is secured to them by the surrender of our markets. It must be obvious, to any one who has given the matter reasonable consideration, that the conditions which prevailed in 1818 and those which exist to-day are very dissimilar. Previous to 1845 and 1850 our fishing-vessels depended almost wholly upon wood for fuel, but at the present time coal is generally the only fuel used, even on sailing vessels, and of course all steam-vessels are dependent upon it. Now, if this treaty goes into force, though it has been negotiated in 1888, its provisions are so framed that it is really no more adapted to the present methods and present condition of civilization than is the obsolete document known as the “ Convention of 1818. So far as clearness of statement is concerned it is very questionable if the earlier treaty is not the best, though we are aware how much it has been misunderstood and misinterpreted by Great Britain and Canada.
Referring to Article XII, it may be said that the fishing-vessels of Canada and Newfoundland, as has been shown, are now and have been enjoying greater privileges in the United States than are secured by this treaty to the fishing-vessels of this country in Canadian ports. If this clause had been modified so as to read that the fishing-vessels of Canada and Newfoundland shall have on the Atlantic coast of the United States all the privileges reserved by this treaty to the United States fishing-vessels in the waters of Canada and Newfoundland and none other," it might have been satisfactory to the American fishermen.
For then the vessels of both countries would have been placed upon an equal basis, so far as the rights in the ports of the respective countries are concerned.
We strenuously object to putting any numbers or any marks on our fishing-vessels at the dictation of any foreign power ; such “ear marks” put upon them under such conditions we consider would be humiliating to our fishermen. The American flag will, as it has always done, distinguish their nationality. It is seldom, if ever, difficult to determine whether a vessel belongs to the fishing fleet or otherwise.
In accordance with Article XIV a vessel may be seized for preparing in inshore waters to fish therein; and, if the court sees fit, she and her cargo may be coufiscated for this violation of the treaty. There is no definition here of what constitutes“ preparing to fish, nor is it shown how it may be determined that there might be an intent to fish in inshore waters as distinguished from fishing farther from the land. Probably no clause in the treaty may be more liable to be misconstrued than this, and if we are to judge by the past, there is certainly much reason to apprehend great difficulty from the constructions which may be put upon it. It is evident that in putting this clause into practical operation our vessels may be seized at any time on the smallest provocation, or even on the assumption that they are about to engage in inshore fishing or åre “preparing " to
This view of the case has evidently been taken by others. A writer in Frank Leslie's makes the following statements relative to prospective troubles for our fishermen in the courts of Canada if this treaty is ratified.
"This, in short, is an admirable convention for Canada and Great Britain. While it is not so manifest a jug-handle treaty as the so-called reciprocity treaty of 1854, it is at least one-sided enough to secure its prompt ratification on the other side of the line. °It leaves all matters of present dispute unsettled, or else refers points of contention to the adjudication of Canadian courts. Our experience has not been such as to cause a further longing for the services of these tribunals as courts of last resort. A treaty which leaves its own interpretation to one of the high contracting parties, which happens in this case to be our adversary, will scarcely find much favor with the United States Senate."
But the entire aim and animum of this treaty is summarized in the fifteenth article. This tells us that when we are ready to open our markets to Canada and to Newfoundland, and to sacrifice our fisheries by so doing, American fishermen may receive in British provincial ports the commercial rights which are now enjoyed by British