DESPATCHES, REPORTS, CORRESPONDENCE, ETC. 561 



335 guage reported to have been recently used by Mr. Bayard, the 

 United States' Secretary of State, in his reply to the owners of 

 the " George Gushing," a vessel recently seized on a similar charge. 

 " You are well aware that questions are now pending between this 

 Government and that of Great Britain in relation to the justification 

 of the rights of American fishing vessels in the territorial waters of 

 British North America, 'and we shall relax no effort to arrive at a 

 satisfactory solution of the difficulty. In the meantime it is the duty 

 and manifest interest of all American citizens, entering Canadian 

 jurisdiction to ascertain and obey the laws and regulations there in 

 force. For all unlawful depredations of property or commercial 

 rights this Government will expect to procure redress and compensa- 

 tion for the innocent sufferers." 



INTERPRETATION OF THE TREATY. 



Mr. Phelps after commenting in the language already quoted from 

 his letter, on the claim for the Customs penalty, treats, as the only 

 real question in the case, the question whether the vessel is to be 

 forfeited for purchasing bait to be used in lawful fishing. In follow- 

 ing his argument on this point, it should be borne in mind, as already 

 stated, that, in so far as the fact of the bait having been intended 

 to be used in lawful fishing is material to the case, that is a fact 

 which is not admitted. It is one in respect of which the burden of 

 proof is on the owners of the vessel, and it is one on which the 

 owners have not yet obtained an adjudication by the tribunal before 

 which the case has gone. 



Mr. Phelps admits " 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, or to repair damages, or to seek shelter." 



It is claimed on the part of the Government of Canada that this is 

 not only the language of the Treaty of 1818, but " its spirit and plain 

 intent." To establish this contention, it should be sufficient to point 

 to the clear, unambiguous words of the Treaty. To those clear and 

 unambiguous words Mr. Phelps seeks to attach a hidden meaning, 

 by suggesting that certain " preposterous consequences " might ensue 

 from giving them their ordinary construction. He says that with 

 such a construction a vessel might be forfeited for entering a port 

 " to post a letter, to send a telegram, to buy a newspaper, to obtain 

 a physician in case of illness, or a surgeon in case of accident, to land 

 or bring off a passenger, or even to lend assistance to the inhabit- 

 ants, &c. 



There are probably few treaties or statutes, the literal enforcement 

 of which might not in certain circumstances produce consequences 

 worthy of being described as preposterous. 



At most this argument can only suggest that in regard to this 

 Treaty as in regard to every enactment its enforcement should not 

 be insisted on where accidental hardships or "preposterous conse- 

 quences " are likely to ensue. Equity, and a sense of natural justice, 

 would doubtless lead the Government with which the Treaty was 

 made to abstain from its rigid enforcement for inadvertent offences, 

 although the right so to enforce it might be beyond question. It is 

 92009 S. Doc. 870, 61-3, vol 4 16 



