782 CORRESPONDENCE, ETC. 



" Her Majesty's Government do not doubt that your ministers will 

 agree with them as to the propriety of these instructions, and will 

 give corresponding instructions to the vessels employed by them." 



These instructions were again officially stated by the British min- 

 ister at Washington to the Secretary of State of the United States 

 in a letter dated June 11, 1870. 



Again, in February, 1871, Lord Kimberly, colonial secretary, wrote 

 to the governor-general of Canada as follows : 



" The exclusion of American fishermen from resorting to Canadian 

 ports, except for the purpose of shelter, and of repairing damages 

 therein, purchasing wood, and of obtaining water, might be war- 

 ranted by the letter of the treaty of 1818, and by the terms of the 

 imperial act 59 George III, chap. 38, but Her Majesty's Government 

 feel bound to state that it seems to them an extreme measure, incon- 

 sistent with the general policy of the Empire, and they are disposed 

 to concede this point to the United States Government under such 

 restrictions as may be necessary to prevent smuggling, and to guard 

 against any substantial invasion of the exclusive rights of fishing 

 which may be reserved to British subjects." 



And in a subsequent letter from the same source to the governor- 

 general, the following language is used: 



" I think it right, however, to add that the responsibility of de- 

 termining what is the true construction of a treaty made by Her 

 Majesty with any foreign power must remain with Her Majesty's 

 Government, and that the degree to which this country would make 

 itself a party to the strict enforcement of the treaty rights may de- 

 pend not only on the literal construction of the treaty, but on the 

 moderation and reasonableness with which these rights are asserted." 



I am not aware that any modification of these instructions or any 

 different rule from that therein contained has ever been adopted or 

 sanctioned by Her Majesty's Government. 



Judicial authority upon this question is to the same effect. That 

 the purchase of bait by American fishermen in the provincial ports 

 has been a common practice is well known. But in no case, so far as 

 I can ascertain, has a seizure of an American vessel ever been en- 

 forced on the ground of the purchase of bait, or of any other sup- 

 plies. On the hearing before the Halifax Fisheries Commission in 

 1877 this question was discussed, and no case could be produced of any 

 such condemnation. Vessels shown to have been condemned were in 

 all cases adjudged guilty, either of fishing, or preparing to fish, within 

 the prohibited limit. And in the case of the White Fawn, tried in 

 the admiralty court of New Brunswick before Judge Hazen in 1870, 

 I understand it to have been distinctly held that the purchase of bait, 

 unless proved to have been in preparation for illegal fishing, was not 

 a violation of the treaty, nor of any existing law, and afforded no 

 ground for proceedings against the vessel. 



But even were it possible to justify on the part of the Canadian 

 authorities the adoption of a construction of the treaty entirely dif- 

 ferent from that which has always heretofore prevailed, and to de- 

 clare those acts criminal which have hitherto been regarded as inno- 

 cent, upon obvious grounds of reason and justice, and upon common 

 principles of comity to the United States Government, previous notice 

 should have been given to it or to the American fishermen of the new 

 and stringent instructions it was intended to enforce. 



