QUESTION SEVEN. 127 



Lord Kimberley's view I had had no explanation from him on that 

 point, and of course I entirely concurred with his opinion that the 

 British Government were the interpreters of the British view of 

 Imperial treaties. 



On the same day (29th May, 1886) Mr. Bayard wrote to protest 

 against the Canadian statute of 1886. He described Canada's action 

 as " arbitrary, unlawful, unwarranted, and unfriendly," and as " flag- 

 rantly violative of the reciprocal commercial privileges to which citi- 

 zens of the United States are lawfully entitled under statutes of 

 Great Britain, and the well-defined and publicly proclaimed author- 

 ity of both countries, besides being in respect of the existing conven- 

 tions between the two countries, an assumption of jurisdiction entirely 

 unwarranted and which is wholly denied by the United States." 

 (App., p. 311.) 



On the 2nd June (1886) Mr. Phelps, in a letter to Lord Rosebery, 

 discussed the treaty of 1818 at length. He said (App., p. 312) : 



Recurring, then, to the only real question in the case, whether 

 the vessel is to be forfeited for purchasing bait of an inhabitant of 

 Nova Scotia to be used in lawful fishing, it may be readily admitted 

 that, if the language of the treaty of 1818 is to be interpreted 

 literally, rather than according to its spirit and plain intent, a vessel 

 engaged in fishing would be prohibited from entering a Canadian 

 port " for any purpose whatever," except to obtain wood or water, to 

 repair damages, or to seek shelter. Whether it would be liable to the 

 extreme penalty of confiscation for a breach of this prohibition, in a 

 trifling and harmless instance, might be quite another question. 



Such a literal construction is best refuted by considering its pre- 

 posterous consequences. If a vessel enters a port to post a letter, or 

 send a telegram, or buy a newspaper, to obtain a physician in case of 

 illness, or a surgeon in case of accident, to land or bring off a passen- 

 ger, or even to lend assistance to the inhabitants in fire, flood, or 

 pestilence, it would, upon this construction, be held to violate the 

 treaty stipulations maintained between two enlightened, mari- 

 141 time, and most friendly nations, whose ports are freely open 

 to each other in all other places and under all other circum- 

 stances. If a vessel is not engaged in fishing, she may enter all ports. 

 But if employed in fishing, not denied to be lawful, she is excluded, 

 though on the most innocent errand. She may buy water, but not 

 food or medicine; wood, but not coal. She may repair rigging, but 

 not purchase a new rope, though the inhabitants are desirous to sell 

 it. If she even entered the port (having no other business) to report 

 herself to the custom-house, as the vessel in question is now seized for 

 not doing, she would be equally within the interdiction of the treaty. 

 If it be said these are extreme instances of violation of the treaty, 

 not likely to be insisted on, I reply that no one of them is more ex- 

 treme than the one relied upon in this case. 



It will be observed that this argument did not take into considera- 

 tion the fact that in 1818 United States vessels had not the right to 

 enter British ports or territory. 



