No. 333. Sir L. S. Sackville West to Mr. Bayard. WASHINGTON, January 28, 1887. (Received January 29.) SIR: With reference to your notes* of the 19th and 20th of October last, I have the honor to transmit to you herewith copy of a dispatch from the governor-general of Canada to Her Majesty's secretary of state for the colonies relative to the cases of the American fishing vessels Pearl Nelson and Everett Steele, which I am instructed by Her Majesty's principal secretary of state for foreign affairs to communicate to the United States Government. I have, etc., [Inclosure.] L. S. SACKVILLE WEST. The Marquis of Lansdowne to Mr. Stanhope. GOVERNMENT HOUSE, December 20, 1886. SIR: I had the honor of receiving your dispatch of the 22d of November in regard to the case of the Everett Steele and Pearl Nelson, recently detained at Shelburne and Arichat, Nova Scotia, for non-compliance with the customs regulations of the Dominion. The circumstances under which the conduct of these vessels attracted the attention of the customs authorities were set out in the privy council orders of the 18th of November, certified copies of which were forwarded to you under cover of my dispatches of the 29th November. The information contained in these documents was obtained in order to comply with the request for a report on these two cases which you had addressed to me by telegram on a previous date. I have now carefully examined the fuller statements made by Mr. Bayard, both as to the facts and as to the considerations by which the conduct of the local officials should in his opinion have been governed. You will I think find, on reference to the privy council orders already before you, that the arguments advanced by Mr. Bayard have been sufficiently met by the observations of my minister of marine and fisheries, whose reports are embodied in those orders. It is not disputed that the Everett Steele was in Shelburne Harbor on the 25th March and sailed thence without reporting. In consequence of this omission on the master's part his vessel was, on her return to Shelburne, in September, detained by the collector. The master having explained that his presence in the harbor had been occasioned by stress of weather, and that his failure to report was inadvertent, and this explanation having been telegraphed to the minister of marine at Ottawa, the vessel was at once allowed to proceed to sea; her release took place at noon on the day following that of her detention. In the case of the Pearl Nelson it is not denied that nine of her crew were landed in Arichat Harbor at a late hour in the evening of her arrival and before the master had reported to the custom-house. It is obvious that if men were to be allowed to go on shore, under such circumstances, without notification to the authorities, great facilities would be offered for landing contraband goods, and there can be no question that the master, by permitting his men to land, was guilty of a violation of sections 25 and 180 of the customs act. There seems to be reason to doubt his statement that he was driven into Arichat by stress of weather; but, be this as it may, the fact of his having entered the harbor for a lawful purpose would not carry with it a right to evade the law to which all vessels frequenting Canadian ports are amenable. In this case, as in that of the Everett Steele, already referred to, the statement of the master that his offense was due to inadvertence was accepted, and the fine imposed at once remitted. I observe that in his dispatch relating to the first of these cases Mr. Bayard insists with much earnestness upon the fact that certain "prerogatives" of access to the territorial waters of the Dominion were specially reserved under the convention of 1818 to the fishermen of the United States, and that a vessel entering a Canadian harbor for any purpose coming within the terms of Article 1 of that convention has as *Printed pp. 419, 421, Foreign Relations, 1886. much right to be in that harbor as she would have to be upon the high seas, and he proceeds to institute a comparison between the detention of the Everett Steele and the wrongful seizure of a vessel on the high seas upon the suspicion of being engaged in the slave trade. Mr. Bayard further calls attention to the special consideration to which, from the circumstances of their profession, the fishermen of the United States are, in his opinion, entitled, and he dwells upon the extent of injury which would result to them if they were debarred from the exercise of any of the rights assured to them by treaty or convention. I observe that in Sir Julian Pauncefote's letter inclosed in your dispatch it is stated that the secretary of state for foreign affairs wishes to urge upon the Dominion Government the great importance of issuing stringent instructions to its officials not to interfere with any of the privileges expressly reserved to United States fishermen under Article 1 of the convention of 1818. I trust that the explanations which I have already been able to give in regard to the cases of these vessels will have satisfied you that the facts disclosed do not show any necessity for the issuing of instructions other than those already circulated to the local officials intrusted with the execution of the customs as fishery law. There is certainly no desire on the part of my Government (nor, I believe, does the conduct of the local officials justify the assumption that such a desire exists) to curtail in any respect the privileges enjoyed by United States fishermen in Canadian waters. It can not on the other hand be contended that because these privileges exist, and are admitted by the Government of the Dominion, those who enjoy them are to be allowed immunity from the regulations to which all vessels resorting to Canadian waters are without exception subjected under the customs act of 1883 and the different statutes relating to the fisheries of the Dominion. In both of the cases under consideration their was a clear and undoubted violation of the law, and the local officials would have been culpable if they had omitted to notice it. That there was no animus on their part or on that of the Canadian Government is, I think, clearly proved by the promptitude with which the circumstances were investigated and the readiness shown to overlook the offense, and to remit the penalty incurred, as soon as proof was forthcoming that the offense had been unintentionally committed. In support of this view I would draw your attention to the letter (see inclosure to my dispatch of 29th November) of Mr. Phelan, the consulgeneral of the United States at Halifax, who has expressed his own satisfaction at the action of the authorities in the case of the Pearl Nelson and who also refers to a communication received by him from the Department of State, in which it is stated that the conduct of the assistant commissioner of customs in dealing with two other cases of a somewhat similar complexion "shows a proper spirit." I have, etc., LANSDOWNE. No. 334. Sir L. S. Sackville West to Mr. Bayard. WASHINGTON, April 4, 1887. (Received April 6.) SIR With reference to my note of the 28th of January last, I have the honor to inclose to you herewith copy of an approved report of a committee of the privy council of Canada, embodying a report of the minister of marine and fisheries on the cases of the United States fishing vessels Pearl Nelson and Everett Steele. I have, etc., [Inclosure.] L. S. SACKVILLE WEST. Certified copy of a report of a committee of the honorable the privy council for Canada, approved by his excellency the governor-general in council, on the 15th January, 1887. The committee of the privy council have had under consideration a dispatch dated November 22, 1886, from the secretary of state for the colonies, inclosing letters from Mr. Secretary Bayard, bearing date 19th October, and referring to the cases of the schooners Pearl Nelson and Everett Steele. The minister of marine and fisheries, to whom the dispatch and inclosures were referred, reports that in reply to a telegram from the secretary of state for the colonies, an order in council, passed on the 18th November last, containing a full statement of facts regarding the detention of the above-named vessels, was transmitted to Mr. Stanhope; it will not therefore be necessary to repeat this statement in the present report. The minister observes in the first place that the two fishing schooners Everett Steele and Pearl Nelson were not detained for any alleged contravention of the treaty of 1818 or the fishery laws of Canada, but so lely for the violation of the customs law. By this law all vessels of whatever character are required to report to the collector of customs immediately upon entering port, and are not to break bulk or land crew or cargo before this is done. The minister states that the captain of the Everett Steele had on a previous voyage entered the port of Shelburne on the 25th March, 1886, and after remaining for eight hours had put to sea again without reporting to the customs. For this previous offense he was, upon entering Shelburne Harbor on the 10th September last, detained and the facts were reported to the minister of customs at Ottawa. With these facts was coupled the captain's statement that on the occasion of the previous offense he had been misled by the deputy harbor-master, from whom he understood that he would not be obliged to report unless he remained in harbor for twenty-four hours. The minister accepted the statement in excuse and the Everett Steele was allowed to proceed on her voyage. The customs laws had been violated; the captain of the Everett Steele admitted the violation, and for this the usual penalty could have been legally enforced. It was, however, not enforced, and no detention of the vessel occurred beyond the time necessary to report the facts to headquarters and obtained the decision of the minister. The minister submits that he can not discern in this transaction any attempt to interfere with the privileges of United States fishing vessels in Canadian waters or any sufficient case for the protest of Mr. Bayard. The minister states that in the case of the Pearl Nelson no question was raised as to her being a fishing vessel or her enjoyment of any privileges guarantied by the treaty of 1818. Her captain was charged with a violation of the customs law, and of that alone, by having, on the day before reporting to the collector of customs at Arichat, landed ten of his crew. This he admitted upon oath. When the facts were reported to the minister of customs he ordered that the vessel might proceed upon depositing $200, pending a fuller examination. This was done, and the fuller examination resulted in establishing the violation of the law and in finding that the penalty was legally enforceable. The minister, however, in consideration of the alleged ignorance of the captain as to what constituted an infraction of the law, ordered the deposit to be refunded. In this case there was a clear violation of Canadian law; there was no lengthened detention of the vessel; the deposit was ultimately remitted, and the United States consul-general at Halifax expressed himself by letter to the minister as highly pleased at the result. The minister observes that in this case he is at a loss to discover any well-founded grievance or any attempted denial of or interference with any privileges guarantied to United States fishermen by the treaty of 1818. The minister further observes that the whole argument and protest of Mr. Bayard appears to proceed upon the assumption that these two vessels were subjected to unwarrantable interference in that they were called upon to submit to the requirements of Canadian customs law, and that this interference was prompted by a desire to curtail or deny the privileges of resort to Canadian harbors for the purposes allowed by the treaty of 1818. It is needless to say that this assumption is entirely incorrect. Canada has a very large extent of sea-coast with numberless ports, into which foreign vessels are constantly entering for purposes of trade. It becomes necessary in the interests of legitimate commerce that stringent regulations should be made by compulsory conformity to which illicit traffic should be prevented. These customis regulations all vessels of all countries are obliged to obey, and these they do obey, without in any way considering it a hardship. United States fishing vessels come directly from a foreign and not distant country, and it is not in the interests of legitimate Canadian commerce that they should be allowed access to our ports without the same strict supervision as is exercised over all other foreign vessels, otherwise there would be no guaranty against illicit traffic of large dimensions to the injury of honest trade and the serious diminution of the Canadian revenue. United States fishing vessels are cheerfully accorded the right to enter Canadian ports for the purpose of obtaining shelter, repairs, and procuring wood and water; but in exercising this right they are not, and can not be, independent of the customs laws. They have the right to enter for the purposes set forth, but there is only one legal way in which to enter, and that is by conformity to the customs regulations. When Mr. Bayard asserts that Captain Forbes had as much right to be in Shelburne Harbor seeking shelter and water as he would have had on the high seas carrying on under shelter of the flag of the United States legitimate commerce," he is undoubtedly right, but when he declares, as he does in reality, that to compel Captain Forbes, in Shelburne Harbor, to conform to Canadian customs regulations, or to punish him for their violation, is a more unwarrantable stretch of power than "that of seizure on the high seas of a ship unjustly suspected of being a slaver," he makes a statement which carries with it its own refutation.' Customs regulations are made by each country for the protection of its own trade and commerce, and are enforced entirely within its own territorial jurisdiction, while the seizure of a vessel upon the high seas, except under extraordinary and abnornal circumstances, is an unjustifiable interference with the free right of navigation common to all nations. As to Mr. Bayard's observation that by treatment such as that experienced by the Everett Steele, the door of shelter is shut to American fishermen as a class," the minister expresses his belief that Mr. Bayard can not have considered the scope of such an assertion or the inferences which might reasonably be drawn from it. If a United States fishing vessel enters a Canadian port for shelter, repairs, or for wood and water, her captain need have no difficulty in reporting her as having entered for one of those purposes, and the Everett Steele would have suffered no detention had her captain, on the 25th March, simply reported his vessel to the collector. As it was, the vessel was detained for no longer time than was necessary to obtain the decision of the minister of customs, and the penalty for which it was liable was not enforced. Surely Mr. Bayard does not wish to be understood as claiming for United States fishing vessels total immunity from all customs regulations, or as intimating that if they can not exercise their privileges unlawfully they will not exercise them at all. Mr. Bayard complains that the Pearl Nelson, although seeking to exercise no commercial privileges, was compelled to pay commercial fees, such as are applicable to trading vessels. In reply the minister observes that the fees spoken of are not "commercial fees;" they are harbor-master's dues, which all vessels making use of legally constituted harbors are, by law, compelled to pay, and entirely irrespective of any trading that may be done by the vessel. The minister observes that no single case has yet been brought to his notice in which any United States fishing vessel has in any way been interfered with for exercising any rights guarantied under the treaty of 1818 to enter Canadian ports for shelter, repairs, wood, or water; that the Canadian Government would not countenance or permit any such interference, and that in all cases of this class when trouble has arisen it has been due to a violation of Canadian customs law, which demands the simple legal entry of the vessel as soon as it comes into port. The committee concurring in the above report recommend that your excellency be moved to transmit a copy thereof to the right honorable the secretary of state for the colonies. All which is respectfully submitted for your excellency's approval. JOHN J. MCGEE, No. 335. Mr. Bayard to Sir L. S. Sackville West. DEPARTMENT OF STATE, SIR: I have the honor to acknowledge the receipt of your note of the 4th instant, accompanied by a copy of an approved report of a committee of a privy council of Canada in relation to the cases of the American fishing vessels Pearl Nelson and Everett Steele which were brought to your attention by my notes of October 19th and 20th last. I have, etc., T. F. BAYARD. No. 336. Sir L. S. Sackville West to Mr. Bayard. Washington, April 25, 1887. (Received April 26.) SIR: Her Majesty's Government have instructed me by cable to as certain whether under the existing law Irish emigrants sent out at the public cost and who have friends in the United States able to help and support them will be allowed to land, and I have the honor, therefore, to request you to be good enough to enable me to reply. I have, etc., No. 337. L. S. SACKVILLE WEST. Mr. Bayard to Sir L. S. Sackville West. DEPARTMENT OF STATE, SIR: I have had the honor to receive your note of the 25th ultimo, inquiring whether under existing laws "Irish emigrants sent out at the public cost," and who have "friends in the United States able to help them and support them, will be allowed to land." any By section 2 of an act of Congress, approved August 3, 1882, to regu. late immigration to the United States, it is provided that the officers charged with the duty of supervising such immigration shall examine into the condition of persons arriving in the ports of the United States, and that "if on such examination there shall be found person unable to take care of himself or herself without becoming a public charge, they (the officers) shall report the same in writing to the collector of such port, and such persons shall not be permitted to land." So far as the permission to land is concerned, the provisions of this act are clear and explicit. The officers charged with its execution are required to make an examination, and upon the result of that examination in each case depends the decision of the question whether the person seeking entrance into the United States shall be permitted to land. It is, therefore, impossible to give any general assurance that persons belonging to a particular class will not be obnoxious to the provisions of the law. The only test therein provided is the ability of the intended immigrant "to take care of himself or herself without becoming a public charge," and this test is to be applied impartially to all persons of whatever nationality. I am, however, constrained to notice that, aside from the enforcement of the act of 1882, your inquiry suggests another question which has heretofore been discussed between the Government of the United States and that of Great Britain, and upon which the views of this Government have been fully set forth. The economic and political conditions of the United States have always led the Government to favor immigration, and all persons seeking a new field of effort and coming hither with a view to the improvement of their condition by the free exercise of their faculties, have been cordially received. The same conditions have caused other kinds of immigration to be regarded as undesirable, and led to the adoption by Congress of laws to prevent the coming of paupers, contract labor |