570 APPENDIX TO BRITISH CASE. 



inercial privileges accorded to national vessels in the harbors, ports, or waters 

 of such foreign country, the President, on receiving satisfactory information 

 of the continuance of such discriminations against any vessels of the United 

 States, is hereby authorised to issue his proclamation, excluding, on and after 

 such time as he may indicate, from the exercise of such commercial privileges 

 in the ports of the United States as are denied to American vessels in the ports 

 of such foreign country, all vessels of such foreign country of a similar charac- 

 ter to the vessels of the United States thus discriminated against and suspend- 

 ing such concessions previously granted to the vessels of such country, and 

 on and after the date named in such proclamation for it to take effect, if the 

 master, officer or agent of any vessel of such foreign country excluded by said 

 proclamation from the exercise of any commercial privileges shall do any act 

 prohibited by said proclamation, in the ports, harbors, or waters of the United 

 States for or on account of such vessel, such vessel, and its rigging, tackle, 

 furniture and boats, and all the goods on board shall be liable to seizure and 

 to forfeiture to the United States, and any person opposing any officer in the 

 United States in the enforcement of this Act, or aiding and abetting any other 

 person in such opposition, shall forfeit eight hundred dollars, and shall be 

 guilty of a misdemeanour, and, upon conviction, shall be liable to imprisonment 

 for a term not exceeding two years. Sec : 17 of Act No. 85 of Congress, 1886. 



This enactment has all the features of hostility which Mr. Phelps 

 has stigmatised as " unprecedented in the history of legislation under 

 the Treaty." 



ENFORCEMENT OF THE ACTS WITHOUT NOTICE. 



Mr. Phelps insisted upon what he regards as " obvious grounds of 

 reason and justice," and " upon common principles of comity," that 

 previous notice should have been given of the " new stringent restric- 

 tions " it was intended to enforce. 



It has already been shown that no new restrictions have been at- 

 tempted. The case of the " David J. Adams " is proceeding under 

 the Statutes which have been enforced during the whole time when 

 the Treaty had operation. 



It is true that for a short time prior to the Treaty of Washington, 

 and when expectations existed of such a Treaty being arrived at, the 

 instructions of 1870, which are cited by Mr. Phelps, were issued by 

 the Imperial authorities. It is likewise true that under these instruc- 

 tions the rights of Her Majesty's subjects in Canada were not insisted 

 on, in their entirety. These instructions were obviously applicable 

 to the particular time at which and the particular circumstances 

 under which they were issued by Her Majesty's Government. 



But it is obviously unfair to invoke them now, under wholly differ- 

 ent circumstances, as establishing a " practical construction " of the 

 Treaty, or as affording any ground for claiming that the indulgence 

 which they extended should be perpetual. 



The fishery clauses of the Treaty of Washington were annulled by 

 a notice from the Government of the United States, and, as has 

 already been urged, it would seem to have been the duty of that Gov- 

 ernment, rather than of the Government of Canada, to have warned 

 its own people of the consequences which must ensue. This was done 

 in 1870 by the circulars from the Treasury Department at Washing- 

 ton, and might well have been done at this time. 



Mr. Phelps has been pleased to stigmatise " the action of the Cana- 

 dian authority in seizing and still detaining the ' David J. Adams ' 

 as not only unfriendly and discourteous, but altogether unwarrant- 

 able." 



