PERIOD FROM 18"71 TO 1905. 835 



The interpretation of a treaty when it becomes the subject of dis- 

 cussion between two governments is not, I respectfully insist, to be 

 settled by the judicial tribunals of either. That would be placing its 

 construction in the hands of one of the parties to it. It can only be 

 interpreted for such a purpose by the mutual consideration and agree- 

 ment which were necessary to make it. Questions between indi- 

 viduals arising upon the terms of a treaty may be for the courts to 

 which they resort to adjust. 



Questions between nations as to national rights secured by treaty 

 are of a very different character and must be solved in another way. 



The United States Government is no party to the proceedings insti- 

 tuted by the British authorities in Canada. Nor can it consent to 

 become a party. The proceedings themselves are what the United 

 States complain of as unauthorized, as well as unfriendly. It would 

 be inconsistent with the dignity of a sovereign power to become a 

 party to such proceedings, or to seek redress in any way in the courts 

 of another country for what it claims to be the violation of treaty 

 stipulations by the authorities of that country. 



Still less could it consent to be made indirectly a party to the 

 suits by being required to await the result of such defense as the indi- 

 viduals whose property is implicated may be able and may think 

 proper to set up. 



Litigation of that sort may be indefinitely prolonged. Meanwhile 

 fresh seizures of American vessels upon similar grounds are to be 

 expected, for which redress would in like manner await the decisions 

 of the local tribunals, whose jurisdiction the captors invoke and the 

 United States Government denies. 



Nor need it be again pointed out, how different may be the question 

 involved between the Governments from that which these proceed- 

 ings raise in the Canadian courts. Courts in such cases do not ad- 

 minister treaties. They administer only the statutes that are passed 

 in pursuance of treaties. If a statute contravene the provisions of 

 a treaty, British courts are nevertheless bound by the statute. And 

 if, on the other hand, there is a treaty stipulation which no statute 

 gives the means of enforcing, the court cannot enforce it. 



Although the United States Government insists that there is no 

 British or colonial act authorizing the seizures complained of, if the 

 British courts should nevertheless find such authority in any existing 

 statute, the question whether the statute itself or the construction 

 given it is warranted by the treaty would still remain. And also the 

 still higher question, whether if the strict technical reading of the 

 treaty might be thought to warrant such a result, it is one which ought 

 to be enforced between sovereign and friendly nations acting in the 

 spirit of the treaty. 



The United States Government must therefore insist that, irre- 

 spective of the future result of the Canadian legal proceedings, the 

 authority and propriety of which is the subject of dispute, and with- 

 out waiting their conclusion, it is to Her Majesty's Government it 

 must look for redress and satisfaction for the transactions in question, 

 and for such instructions to the colonial authority as will prevent 

 their repetition. 



While, as I have observed, Lord Rosebery declines to discuss the 

 question of the legality of these seizures, the able and elaborate report 

 on the subject from the Canadian minister of marine and fisheries. 



