560 APPENDIX TO BRITISH CASE. 



5. Mr. Phelps is informed by the Consul General at Halifax that 

 it is " conceded by the Customs authorities there that foreign fishing 

 vessels have for forty years been accustomed to go in and out of the 

 bay at pleasure, and have never been required to send ashore and re- 

 port when they had no business with the port, and made no landing, 

 and that no seizure had ever before been made, or claim against them 

 for so doing." Nothing of this kind is, or could be conceded by the 

 customs authorities there, or elsewhere in Canada. The bay referred 

 to, the Annapolis Basin, is like all the other harbours of Canada, ex- 

 cept that it is unusually well defined and land locked, and furnished 

 with customs houses. Neither there, nor anywhere else, have foreign 

 fishing vessels been accustomed to go in and out at pleasure without 

 reporting. If they had been so permitted the fishery laws could not 

 have been enforced, and there would have been no protection against 

 illicit trading while the Reciprocity Treaty of 1854 and the fishery 

 clauses of the Washington Treaty were in force, the Convention of 

 1818 being of course suspended, considerable laxity was allowed to 

 United States' fishing vessels, much greater than the terms of those 

 Treaties entitled them to, but the Consul General is greatly mistaken 

 when he supposes that at other times the Customs laws were not en- 

 forced, and that seizures of foreign fishing vessels were not made for 

 omitting to report. Abundant evidence on this point can be had. 



In 1839 Mr. Vail, the acting Secretary of State (United States) 

 reported that most of the seizures (which then were considered nu- 

 merous) were for alleged violations of the customs laws (Papers re- 

 lating to the Treaty of Washington, vol. 6, p. 283, Washington Edi- 

 tion.) From a letter of the United States' Consul at Charlottetown, 

 dated 19th August, 1870, to the United States' Consul General at 

 Montreal, it appears that it was the practice of the United States' 

 fishermen at that time to make regular entry at the port to which they 

 resorted. The Consul said " Here the fishermen enter and clear, and 

 take out permits to land their mackerel from the Collector, and as 

 their mackerel is a free article in this island, there can be no illicit 

 trade." 



In the year 1870, two United States' fishing vessels, the " H, W. 

 Lewis " and the " Granada " were seized on like charges in Canadian 

 waters. 



What Mr. Phelps styles " a Custom House regulation " is an Act of 

 the Parliament of Canada, and has for many years been in force in all 

 the provinces of the Dominion. It is one which the Government can- 

 not at all alter or repeal, and which its officers are not at liberty to 

 disregard. 



6. It is suggested, though not asserted, in the letter of Mr. Phelps, 

 that the penalty cannot reasonably be insisted on, because a new rule 

 has been suddenly adopted without notice. The rule, as before ob- 

 served, is not a new one, nor is its enforcement a novelty. As the 

 Government of the United States choose to put an end to the arrange- 

 ments under which the fishermen of that country were accustomed to 

 frequent Canadian waters with so much freedom, the obligation of 

 giving notice to those fishermen, that their rights were thereafter, by 

 the action of their own Government, to be greatly restricted, and that 

 they must not infringe the laws of Canada, was surely a duty incum- 

 bent on the Government of the United States, rather than on that 

 of Canada. This point cannot be better expressed than in the Ian- 



