side the territorial waters of the United States. The reporter called at this office the same evening and permitted me to read the interview, assuring me at the time that Minister Foster had himself read and approved the statement therein attributed to him. It will be seen that Mr. Foster distinctly advanced the proposition that he would be justified in capturing these vessels anywhere beyond three miles of the United States coast. Believing that it was my duty to prevent, if possible, any act that must involve in its consequences a complication vastly more serious than any mere fishing dispute, I sought an early interview with the minister to learn from himself if such an act was contemplated. He informed me that Canada had the undoubted right to capture those vessels anywhere on the high seas, as they had committed a forfeitable offense. I stated that such an act would be in violation of international law and would certainly be followed by the most serious consequences to both countries. We agreed to meet at 2.30, with Admiral Luee, Minister Foster afterwards requested to meet him at an earlier hour, and the matter was brought up again. Captain Scott was present at this interview, and he assured me that the vessels would not be disturbed on the high seas. At the same time, the Minister reiterated his previous statement that Canada had, the undoubted right to capture those vessels outside the waters of a friendly power. I deem it my duty to report those views of the Canadian government to the Department. Advices from Gloucester announce the arrival of these vessels in that port and the avoidance of the difficulty for the time being. I very much doubt if the Canadian authorities will proceed farther than the mere theoretical contention. I stated in a former dispatch, these vessels cannot be lawAs fully seized at all as the offense of the boats cannot under the wording of the treaty be made to recoup on the parent vessel. At the time of the treaty boats were the fishing crafts generally used, and the captured boats belong to

their owners and by no construction can their transgression entail offense to the schooners in question.

I am, Sir,

Your obedient servant,

M. H. PHELAN,

Consul General.

Newspaper Clipping Enclosed in Letter to James D. Porter from U. S. Consulate General, Halifax, N. S., Aug. 12,

1887.

From the Halifax Chronicle,

A KNOW-NOTHING MINISTER.

་

Minister Foster was interviewed by the Herald during his stay in town. In reference to the charges of negligence and inefficiency brought against the department he excused himself by saying that it was very hard to please an opposition. If we don't make seizures," he said, they charge us with doing nothing. If we do make seizures, they say we are harassing and exasperating the Yankees.” It was very contemptible in the minister to make such a statement as that. If he is at all in the habit of reading the opposition press he must have known he was stating what was not true. We have had as much to say about fishery protection as any opposition paper in Canada, and we should like any one to point to an instance in which we have complained of the cruisers harassing and exasperating the Yanke poachers. Our course has been always consistent. While we may deplore the conditions which compel us to enforce such a treaty as that of 1818, yet as the American government is entirely to blame for the exclusion of its fishermen from our waters we have always demanded that that exclusion should be rigidly enforced by our government. Our comments have always been in the direction of requiring increased activity and diligence on the part of the fisheries department.

Minister Foster seemed to have got rather muddled in discussing the subject of the locality where a seizure may be effected. The following is an extract from the Herald's interview. He was speaking of the poachers, and was asked:

"You will take those vessels wherever you find them?" "We have the undoubted right to take them anywhere outside the territorial waters of another power."

"That is that if the flagship Acadia or any other cruiser or seizing officer can get hold of those two' vessels (Argonaut and French) anywhere between the Canadian coast and three miles of the United States shore they will be justified in capturing them?"

"That is my opinion."

"But has it not been understood that seizures can only be made within three miles of the Canadian coast?"

"That is for customs violations. But the French and Argonaut have committed a forfeitable offense, and are liable to seizure anywhere in British waters at any future time."

"Suppose you captured them on the high seas, would not a United States warship be justified in retaking them?" "That is a question of international law."

It will be observed that he starts off with affirming that if the American fishermen have been poaching our cruisers may pursue and capture them if they can. It is not necessary that the capture be made within our three-mile limit, but "we have the undoubted right to take them anywhere outside the territorial waters of another power." The phrase "undoubted right" would seem to leave no question about the matter. In his next answer, however, he does not seem to be so sure about it. He only gives it as his opinion that our cruisers would be justified in making captures anywhere between our coast and the United States three-mile limit. Minister Foster's "opinion," and an "undoubted right" are, it will be conceded, two very different matters. But this was not enough for the minister.

He must take back water still further. In his next answer he gives up altogether the undoubted right to make captures of poachers on the high seas, and merely affirms that the French and Argonaut are liable to seizure anywhere in British waters. If we captured them on the high seas, instead of our having an undoubted right to do it, it is a question of international law whether a United States warship would not be justified in retaking them. by which we presume that the minister would have it inferred that he is not certain upon the matter. If we have an undoubted right to take those vessels on the high seas, then it is no longer a matter of the minister's personal opinion, nor i; it a disputed question of international law. If the vessels are only liable to seizure anywhere in British waters in th future then it is plain that we have no undoubted right to seize them on the high seas.

In fact, the learned minister knows nothing at all about the matter. He was only talking at random and in consequence got badly muddled. We take pleasure in enlightening him. Cases of seizure on extraterritorial water; have taken place before and it has been decided that no nation has an "undoubted right" to do it. In an American case, Rose rs. Hinely, where a vessel after trading with rebels at St. Domingo, was seized more than ten leagues from the coast by a French privateer, and taken to a Spanish port and sold, and was afterwards condemned by a French tribunal at St. Domingo under municipal law, the court held that any seizure for breach of a municipal regulation beyond the limits of the territorial jurisdiction was not warranted by the law of nations, and invalid. And Dana says in a note to Wheaton's international law that the principle is settled that municipal seizures cannot be It is also made for any purpose beyond territorial waters. settled that the limit of these waters is, in the absence of treaty, the marine league or the cannon shot." So that if Minister Foster has given instructions to the cruisers to pursue poachers right up to the American limit and capture

them on the high seas he is very likely to get Canada into trouble. His ignorance is unpardonable.

EXHIBIT 4.

Affidavit of James G. Tarr.

IN RE CLAIM OF JAMES G. TARR AND BENJAMIN N. TARR, COPARTNERS UNDER THE NAME OF JAMES G. TARR & BRO., on ACCOUNT OF SCHOONER Argonaut.

I, the undersigned, James G. Tarr, of Gloucester, in the County of Essex and Commonwealth of Massachusetts, being duly sworn, on oath depose and say as follows:

In 1887 the firm of James G. Tarr & Brother, consisting of myself and my brother, David Tarr, formerly of said Gloucester, now deceased, were owners of Schooner Argonaut, an American fishing schooner duly documented according to the laws of the United States of America at the port of Gloucester, Mass., and duly licensed for the fisheries for one year from April 4, 1887. Subsequent to July 24, 1887, Benjamin N. Tarr, of Rockport, became a member of said co-partnership and the said David Tarr died. After the death of David Tarr, by assignments duly made by the administrator of his estate, all the right, title, and interest of the said David Tarr or of his estate in the property of said co-partnership or on account of the same, including the claim for damages on account of said Schooner Argonaut as hereinafter set forth, was duly assigned to said co-partnership. Later said business was carried on under the same firm name, James G. Tarr & Brother, by the said James G. Tarr and Benjamin N. Tarr, of Rockport, in said County of Essex, they being co-partners, and they are now the owners of the said claim. By conflagration in the year 1909, which destroyed the office, storehouses and plant of James G. Tarr & Brother at Rocky Neck, in said Gloucester, all the books of the said concern, its records, evidences of title, and other documents have been entirely destroyed.