PUBLIC RECORD OFFICE
Reference :-
C.O.885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
We have also the honour to acknowledge the receipt of a further letter from Sir Julian Pauncefote, dated the 21st June last, stating that with reference to the letters of the 5th and 14th June, he was to transmit to us a letter from the Colonial Office, inclosing a copy of a report by the Canadian Minister of Justice upon Mr. Bayard's notes of the 10th and 20th May last, relative to the North American fisheries question.
That a copy of the latter note was inclosed.
That we should observe that that report dealt only with the question of the con- struction to be placed upon the words of the Convention of 1818, taken in connexion with the subsequent amendments in the Navigation Act, and that Sir Julian Pauncefote was to request, in the first instance, that we would furnish your Lordship with any suggestions we might have to make as to the nature of the reply which should be made by Her Majesty's Government to Mr. Bayard upon that point, leaving for further consideration the other question as to whether the seizure of the D. J. Adams” was legally justified under the existing legislation (whether Imperial or Colonial) passed to enforce the observance of Article I. of the Convention of 1818, or was warranted under any other laws relating to the Customs or otherwise.
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That Sir J. Pauncefote was to add that the Canadian Government had been pressed for a report on the latter point.
We have also the honour to acknowledge the receipt of a further memorandum of Sir Julian Pauncefote, bearing date the 28th June, inclosing two further letters from the Colonial Office on the subject of the North American fisheries.
We are also honoured with further letter from Sir Julian Pauncefote, dated the 5th ultimo, stating that, with reference to his former letters he was to transmit to us two letters from the Colonial Office on the subject of the North American fisheries, and requesting that, in taking those papers into consideration in connexion with those upon the same subject already before us, we would furnish any suggestions we might have to offer as to the reply which should he made to the communications received from Mr. Bayard and Mr. Phelps, dated respectively the 20th May and 2nd June last. and transmitted to us in Sir J. Pauncefote's letters of the 5th and 14th June last.
That the principal points raised in those communications were:-
1. The strict interpretation of the Convention of 1818.
2. Whether that Convention can in anywise be held to be modified by subsequent legislation as regarded commercial facilities granted reciprocally in United States and Canadian ports.
3. As to the sufficiency of existing Imperial or Colonial Acts to carry out the stipu- lations of the Convention, and as to the penalties which could be legally enforced there- under against United States fishing-vessels, especially in the particular cases to which attention was called in the correspondence.
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That the first point was dealt with in Mr. Bayard's note of the 20th May and Mr. Phelps' note of the 2nd June.
That the second point was dealt with in Mr. Bayard's note of the 20th May.
And that the third point was dealt with in Mr. Phelps' note of the 2nd June, and turned on the construction of the Imperial Act 59 Geo. III. cap. 38, and on the Canadian Acts referred to in Lord Lansdowne's despatch transmitting the new Canadian Bill reserved, which formed an inclosure to Sir Julian Pauncefote's letter of the 29th June.
That on that point Sir Julian Pauncefote was to call our attention to the conflicting decisions of the Canadian Admiralty Courts in the cases of the "White Fawn" and the "J. H. Nickerson" (Appendix P.), Halifax Commission proceedings.
In obedience to your Lordship's commands, we have the honour to
Report
1. That we are of opinion that, according to the strict interpretation of the Con- vention of 1818, Article I., American fishermen are prohibited from entering the British bays and harbours therein mentioned for any purpose other than that of repairing damages, of purchasing wood, or of obtaining water; and that therefore the entry of an American fishing-vessel for the purpose of buying bait (although for the purpose of being used in the deep-sea fisheries) was a breach of the Convention.
2. We do not think that the Convention of 1818 can in anywise be held to have been modified by the subsequent legislation as regards commercial facilities granted reciprocally in United States and Canadian ports referred to in Mr Bayard's despatch of the 10th May 1886..
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Indeed, we regard his arguments as directed more to the spirit in which the Conven- tion should be administered under existing circumstances than to its construction, and to point to the expediency of a revision of its provisions.
3. The only Statutes which appear to relate to the question are the Imperial Statute of 1819 and the Dominion Statute of 1868, which seem to be correctly quoted by Mr. Phelps.
By each of these Statutes a vessel is liable to forfeiture" if found fishing or preparing to fish, or to have been fishing," in British waters; but not for purchasing bait or any other infraction of the Convention.
The real question, as it seems to us, is-What is the proper construction of the words "preparing to fish," and whether the purchase of bait is a preparing to fish within the meaning of these Statutes.
We are of opinion that the words quoted do not include making preparations in British waters to fish outside, but mean only making preparations for illegal fishing in British waters.
We think that the purchase of bait may be evidence of such preparation for illegal fishing, but taken by itself is only slight evidence, particularly if (as is stated) bait is now used exclusively, or almost exclusively, in the deep-sea fisheries. We think that the judgment of Judge Hazen, in the case of the substantially correct construction of the Statute, although his illustrations of what White Fawn," proceeded on a would be "preparing to fish
Your Lordship's reference includes the question of the sufficiency of present legisla-
are not, in our opinion, exhaustive. tion to carry out the stipulations of the Convention.
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The Imperial Act imposes a fine of 2001. on persons refusing to conform with regulations or otherwise offending against the Act, and the Colonial Act imposes a penalty of 400 dollars on a master refusing to answer certain questions.
It is a question of policy what measures should be taken by municipal legislation in order to enforce the observance of the stipulations of the Convention, but we venture to suggest, for your Lordship's consideration, that such an offence as purchasing bait (if not by way of preparation for illegal fishing) would be adequately dealt with by a fine.
The Right Hon. the Earl of Iddesleigh,
&c.
&c.
&c.
We have, &c.,
(Signed)
C. RUSSELL. HORACE DAVEY.
J. PARKER DEANE.
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