PERIOD PROM 1871 TO 1906. 871 



(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 

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

 two questions can only be satisfactorily disposed of by a judicial in- 

 quiry. Far from claiming that the United States Government would 

 be bound by the construction which British tribunals might place on 

 the treaty, I stated in my note of the 1st September that if that deci- 

 sion should be adverse to the views of your Government, it would 

 not preclude further discussion between the two Governments 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 to which 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 conven- 

 tion of 1818. 



In a dispatch 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 Government 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 contravention of our treaties with 

 Great Britain, or to be (which can not be anticipated) plainly 

 erroneous in a case admitting of no reasonable doubt, it will then be- 

 come the duty of the Government a duty which it will not be slow 

 to discharge 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 

 authorizing 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 view, 

 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 which my predecessor communicated to you 

 a copy. 



