604 APPENDIX TO BRITISH CASE. 



(2) Was her seizure for such acts warranted by any existing laws? 



(3) If so, are those laws in derogation of the Treaty rights of the 

 United States? 



It is evident that the first two questions must be the subject of in- 

 quiry before the third can be profitably discussed, and that those 

 two questions can only be satisfactorily disposed of by a judicial 

 inquiry. Far from claiming that the United States Government 

 would be bound by the construction which the British Tribunals 

 might place on the Treaty, I stated in my note of the 1st September 

 that if that decision should be adverse to the views of your Govern- 

 ment it would not preclude further discussion between the two Gov- 

 ernments and the adjustment of the question by diplomatic action. 



I may further remark that the very proposition advanced in my 

 note of the 1st of September last, and te w r hich exception is taken in 

 your reply, has on a previous occasion been distinctly asserted by 

 the Government of the United States under precisely similar circum- 

 stances, that is to say, in 1870, in relation to the seizure of American 

 fishing vessels in Canadian waters for alleged violation of the Con- 

 vention of 1818. 



In a despatch of the 29th of October, 1870. to Mr. W. A. Dart, 

 United States Consul-General at Montreal (which is printed at page 

 431 of the volume for that year of the Foreign Relations of the 

 United States, and which formed part of the correspondence referred 

 to by Mr. Bayard in his note to Sir L. West of the 20th of May last), 

 Mr. Fish expressed himself as follows: 



It is the duty of the owners of the vessels to defend their interests before the 

 Courts at their own expense, and without special assistance from the Govern- 

 ment at this stage of affairs. It is for those Tribunals to construe the Statutes 

 under which they act. If the construction they adopt shall appear to be in con- 

 travention of our Treaties with Great Britain, or to be (which cannot be antici- 

 pated) plainly erroneous in a case admitting of no reasonable doubt, it will then 

 become the duty of the Government a duty which it will not be slow to dis- 

 charge to avail itself of all necessary means for obtaining redress. 



Her Majesty's Government, therefore, still adhere to their view 

 that any diplomatic discussion as to the legality of the seizure of the 

 David J. Adams would be premature until the case has been judicially 

 decided. 



It is further stated in your note that " the absence of any Statute 

 authorising proceedings or providing a penalty against American 

 fishing vessels for purchasing bait or supplies in a Canadian port to 

 be used in lawful fishing " affords " the most satisfactory evidence 

 that up to the time of the present controversy no such construction 

 has been given to the Treaty by the British or by the Colonial Parlia- 

 ment as is now sought to be maintained." 



Her Majesty's Government are quite unable to accede to this vLew. 

 and I must express my regret that no reply has yet been received 

 from your Government to the arguments on this and all the other 

 points in controversy which are contained in the able and elaborate 

 Report (as you courteously describe it) of the Canadian Minister 

 of Marine and Fisheries, of w r hich my predecessor communicated to 

 you a copy. 



In that Report reference is made to the argument of Mr. Bayard, 

 drawn from the fact that the proposal of the British negotiators of 

 the Convention of 1818, to the effect that American fishing vessels 



