time of war two foreign ships could sail up that Bristol Channel and fight out their battle to their own content, on the ground that they did not go within three miles of the shore. I think it would have been preposterous to say that a foreign vessel could have sailed up the center of that channel, and defied the fleets and armies of Great Britain, and all her custom-house cutters, on the ground that she was flying the American or the French flag, and the deck was a part of the soil under that flag. Well, it was a question of political geography, not of natural geography. It was a question of its own circumstances. It was decided to be a part of the realm of Great Britain. I do not know that anybody can object to the decision.

No. 165.-1877, December 13: Extract from Report Mr. Dwight Foster (Agent of the United States) to the United States Secretary of State.

During the progress of the evidence offered for Her Britannic Majesty, it became obvious that a very large, if not the greater, part of the British claim was based upon alleged advantages of a commercial character, which, whether valuable or not, were certainly not secured to the citizens of the United States by the articles of the treaty of 1871.

I therefore, on the 1st of September, made the following motion, for the purpose of excluding these pretended advantages from consideration, and thus relieving us from the necessity of swelling an already enormous volume of testimony by evidence on points clearly irrelevant to the true issue:

The counsel and Agent of the United States ask the honorable Commissioners to rule and declare that it is not competent for this Commission to award any compensation for commercial intercourse between the two countries, and that the advantages resulting from the practice of purchasing bait, ice, supplies, &c., and from being allowed to transship cargoes in British waters, do not constitute a foundation for award of compensation, and shall be wholly excluded from the consideration of this tribunal.

No. 166.-1878, February 11: Letter from Governor Sir J. Glover of Newfoundland to the Earl of Carnarvon (British Colonial Secretary).

GOVERNMENT HOUSE, February 11, 1878. MY LORD, I regret to have to report the destruction of an American seine by our fishermen in Fortune Bay on the 6th ultimo, the news of which only reached me through a cable telegram from London on the 4th instant.

2. On receipt of this intelligence I at once caused an inquiry to be instituted to ascertain the truth of the report, but the result of the inquiry has not yet reached me from Fortune Bay. I have the honour to inclose the only information I have as yet been able to obtain, viz., the deposition of the master of a vessel who was present at the time.

92909°-S. Doc. 870, 61-3, vol 4- -39

3. It would appear that the Americans were guilty of three illegal acts, viz. :—

1st. As regards the time in which a seine may be used.

(See Acts 1876, cap. 6, in Amendment of Consolidated Statutes, 1872, cap. 102).

2nd. In barring (same Act).

3rd. By putting out nets or seines between 12 o'clock on Saturday night and 12 o'clock on Sunday night.

(Acts 1876, cap. 6, sec. 4.)

4. As two out of the five seines were removed by our people without injury or damage, and two by the Americans themselves, I conclude that opposition was raised on the part of the American owner to the removal of the fifth.

5. I inclose the opinion of the Attorney-General, which that gentleman has placed in my hands, and I hope to be enabled to send full information by the next mail.

I have, &c.,

268

No. 167.-1878, March 2: Letter from Mr. Evarts (United States Secretary of State) to Sir E. Thornton (British Minister at Washington).

DEPARTMENT OF STATE,
Washington, March 2, 1878.

SIR, I have the honour to bring to your notice the fact that complaints have been recently made to this Department of interference with American fishermen engaged in the herring fishery on the coast of Newfoundland. In some instances these complaints have been forwarded to the Department through the United States' Consuls at St. John's and other ports of that Colony. The representations made by the Consuls are, however, of a general nature based upon statements made to them by the fishermen immediately interested, and consequently the officers in question have been instructed to collect and forward more detailed and specific information, and such further information I will do myself the honour to transmit to you so soon as the reports from the Consuls shall have been received.

Still more recently similar complaints have been received through the collector of the port of Gloucester, Massachusetts. supported by the sworn statements of the masters of eight fishing schooners of that port, and from the statements thus forwarded it appears that in January of the present year those vessels had reached the neighbourhood of Long Harbour, and were actively engaged in the herring fishery, and that most of the seines were full of fish and ready for landing, when, in one instance, two seines belonging to the schooners "Ontario" and "New England " respectively were cut by an enraged crowd of over 200 men, and the whole catch, estimated at not less than 5,000 barrels of herring suffered to run out to sea. Other instances are given, only less in quantity and value, the proceedings resulting in the vessels-eight in number-being obliged to abandon the fishinggrounds on that coast and return to their home port in ballast. When it is remarked at what considerable expense the preparations are made for a season's fishing in these waters, many of the men-mariners, as

well as the masters, embarking their all in the enterprise, the serious character of their losses may be partially understood.

The President has deemed it proper, in view of the possible complications to which a continuance of these lawless proceedings might give rise, to bring the subject directly to the attention of Her Majesty's Government with a view to an early investigation of the facts and the adoption of such measures on its part as may be deemed advisable to prevent a recurrence of the acts complained of; and the Minister of the United States at London has been accordingly instructed to take the necessary steps in that direction. Meantime, I have deemed it right to transmit the facts, so far as they are already known, for your information.

I have, &c.

(Signed)

WM. M. EVARTS.

No. 168.-1878, September 28: Letter from Mr. Evarts to Mr. Welsh (United States Minister at London).

DEPARTMENT OF STATE, Washington, September 28, 1878.

SIR, I received in due course your despatch of the 24th August ultimo, inclosing Lord Salisbury's reply of the British Government to the representations that had been made to it as early as March last by you, under instructions from the Department.

I must understand Lord Salisbury's note accompanying the copy of Captain Sulivan's Report, which he communicates to this Government, as adopting that naval officer's conclusions of fact respecting the violent injuries which our fishing fleet suffered at the hands of the Newfoundland fishing population at Fortune Bay in January of this year, as the answer which Her Majesty's Government makes to the representations laid before it on our part, verified by the sworn statements of numerous and respectable witnesses.

His Lordship has not placed in our possession the proofs or depositions which form the basis of Captain Sulivan's conclusions of facts, and I am unable, therefore, to say whether, upon their consideration, the view which this Government takes of these transactions, upon the sworn statements of our own respectable citizens, would be at all modified. In the absence of these means of correcting any mistakes or false impressions which our informants may have fallen into in their narrative of the facts, it is impossible to accept Captain Sulivan's judgment upon undisclosed evidence as possessing judicial weight.

You will, therefore, lay before Her Majesty's Government the desire which this Government feels to be able to give due weight to this opposing evidence, before insisting upon the very grave view of these injuries which, at present, its unquestionable duty to the interests which have suffered them, and its confidence in the competency and sobriety of the proofs in our possession, compels this Government to take. Should Her Majesty's Government place a copy of the evidence upon which Captain Sulivan bases his Report in your hands, you will lose no time in transmitting it for consideration. I regret that any further delay should thus intervene to prevent an immediate consideration of the facts in

269

the matter by the two Governments in the presence of the same evidence of those facts for their scrutiny and judgment.

But, a careful attention to Lord Salisbury's note discovers what must be regarded as an expression of his views, at least of the authority of Provincial legislation and administrative jurisdiction over our fishermen within the three-mile line, and of the restrictive limitations upon their rights in these fishing-grounds under the Treaty of Washington. Upon any aspect of the evidence, on one side and the other, as qualifying the violent acts from which our fishing fleet has suffered at the hands of the Newfoundland coast fishermen, the views thus intimated seem to this Government wholly inadmissible, and do not permit the least delay, on our part, in frankly stating the grounds of our exception to them.

The Report of Captain Sulivan presents, as a justificatory support of the action of the Newfoundland shore fishermen in breaking up the operations of our fishing fleet inside the three-mile line, at the times covered by these transactions, the violation of certain municipal legislation of the Newfoundland Government which, it is alleged, our fishermen were in the act of committing when the violent interruption of their industry occurred.

I do not stop to point out the serious distinction between the official and judicial execution of any such laws and the orderly enforcement of their penalties after solemn trial of the right, and the rage and predominant force of a volunteer multitude driving off our peaceful occupants of these fishing grounds pursuing their industry under a claim of right secured to them by Treaty. I reserve this matter for a complete examination when the conflicting proofs are in my possession. I shall assume, for my present purpose, that the manner of exerting this supposed provincial authority was official, judicial, and unexceptionable.

I will state these justifications for the disturbance of our fishing fleet in Captain Sulivan's own language, that I may not even inadvertently impute to Lord Salisbury's apparent adoption of them any greater significance than their very language fairly imports.

Captain Sulivan assigns the following violations of law by our fishermen as the grounds of rightful interference with them on the occasion in question:

1. That the Americans were using seines for catching herring on the 6th January, 1878, in direct violation of title xxvii, chap. 102, sect. 1 of the Consolidated Statutes of Newfoundland, viz, "No person shall haul or take herring by or in a seine, or other such contrivance, on or near any part of the coast of this Colony or of its dependencies, or in any of the bays, harbours, or other places therein, at any time between the 20th day of October and the 25th day of April."

2. That the American captains were setting and putting out seines, and hauling and taking herring, on Sunday, the 6th day of January, in direct violation of sect. 4, chap. vii of the Act passed 26th April, 1876, entitled "An Act to amend the Law relating to the Coast Fisheries," viz, No person shall, between the hours of 12 o'clock on Saturday night and 12 o'clock on Sunday night, haul or take any herring, caplin, or squid with net seines, bunts, or any such contrivances for the purpose of such hauling or taking."

3. That they were barring fish, in direct violation of the continuance of the same Act-title xxvii, chap. 102, sect. 1 of the Consolidated Statutes of Newfoundland-" or at any time use a seine or other contrivance for the catching or taking of herrings, except by way of shooting and forthwith hauling the same."

4. That, contrary to the terms of the Treaty of Washington, in which it is expressly provided that they do not interfere with the rights of private prop

erty, or with British fishermen in the peaceable use of any part of the said coasts in their occupancy for the same purpose (see Article XVIII of the above-named Treaty), they were 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, gardens, and land granted by Government, being situated thereon.

The facts which enter into the offences imputed under the first, second, and third heads of Captain Sulivan's statement, and such offences thus made out, would seem to be the only warrant for his conclusion under his fourth head, that the United States' fishermen have exceeded their Treaty right, and, in their actual prosecution of their fishing, were, when interrupted by the force complained of, interfering with the rights of private property, or with British fishermen in the peaceable use of that part of the coast then being in their occupancy for the same purpose, contrary to the proviso of Article XVIII of the Treaty of Washington.

It is no part of my present purpose to point out that this alleged infraction of the reserved rights of the local fishermen does not justify the methods of correction or redress used to drive off our fishermen and break up their prosecution of the fishing. This may be reserved also for discussion when both Governments have a fuller knowledge of the actual circumstances of the transaction.

In transmitting to you a copy of Captain Sulivan's Report, Lord Salisbury says: 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, &c."

In this observation of Lord Salisbury this Government cannot fail to see a necessary imputation that Her Majesty's Government concedes that in the prosecution of the right of fishing accorded to the United States by Article XVIII of the Treaty, our fishermen are subject to the local regulations which govern the coast population of Newfoundland in their prosecution of their fishing industry, whatever those regulations may be, and whether enacted before or since the Treaty of Washington.

The three particulars in which our fishermen are supposed 270 to be constrained by actual legislation of the province cover in principle every degree of regulation of our fishing industry within the three-mile line which can well be conceived. But they are in themselves so important and so serious a limitation of the right secured by the Treaty as practically to exclude our fishermen from any profitable pursuit of the right, which, I need not add, is equivalent to annulling or cancelling, by the Provincial Government, of the privilege accorded by the Treaty with the British Government.

If our fishing fleet is subject to the Sunday laws of Newfoundland, made for the coast population; if it is excluded from the fishinggrounds for half the year, from October to April; if our "seines and other contrivances" for catching fish are subject to the regulation of the Legislature of Newfoundland, it is not easy to see what firm or valuable measures for the privilege of Article XVIII as conceded to the United States, this Government can promise to its citizens under the guarantee of the Treaty.

.