[Inclosure in No. 156.] Mr. Hoppin to the Marquis of Salisbury. LEGATION OF THE UNITED STATES, MY LORD: I have the honor to acquaint you that I received from the honorable the Secretary of State, last evening, a further telegram in relation to the delay of Her Majesty's Government in answering our claims for damages on account of the proceedings at Fortune Bay. Your lordship will be good enough to remember that on the 7th instant, in the absence of your lordship, I had a conversation with Sir Julian Pauncefote at the foreign office on this subject, and gave him a copy of the cable dispatch I had received from Mr. Evarts the day before. Afterwards, on the 12th instant, I received from Si Julian a note in relation to this matter, a copy of which I sent to Mr. Evarts on the 14th, having already telegraphed the substance of it to him on the 13th instant. During our conversation on the 7th of February, when I pressed Sir Julian Pauncefote for an approximate statement of the time within which we might expect your lordship's reply to our claims, he intimated that it would certainly be given within a month from that date, and I so informed Mr. Evarts in a dispatch of the 10th of Feb ruary. In the cable message which I have now received, Mr. Evarts states that he learns with "increased chagrin," from my dispatch to him last mentioned, "of even a possible further delay of one month," and he instructs me to "urge its avoidance if possible." I lose no time, therefore, in bringing this subject again to your lordship's attention, and in expressing the disquiet which Mr. Evarts feels that an answer to these claims which were brought to the notice of Her Majesty's Government so long ago as the 13th of August last may possibly be still further delayed. SIR Referring to my dispatch, No. 150, of the 14th ultimo, in relation to the delay of the British Government to reply to your note on the subject of the Fortune Bay claims, I have now the honor to inclose a copy of a note of Lord Salisbury, in which it is stated that the report of the law officers of the Crown upon the case has now been received. I have, &c., W. J. HOPPIN. [Inclosure in No. 163.] The Marquis of Salisbury to Mr. Hoppin. FOREIGN OFFICE, March 2, 1880. SIR: I have the honor to acknowledge the receipt of your communication of the 27th ultimo, informing me that you had on the evening of the preceding day received a further telegram from Mr. Evarts in relation to the delay of Her Majesty's Government in replying to the claim put forward by the United States Government in connection with the occurrences at Fortune Bay in January, 1878, and I have to state to you with reference thereto that the report of the law officers of the Crown upon the case has now been received, and that therefore the reply of Her Majesty's Government will be sent with the least possible delay, having regard to the question under consideration. I have, &c., SALISBURY. No. 170.] No. 375. Mr. Hoppin to Mr. Evarts. LEGATION OF THE UNITED STATES, London, April 6, 1880. (Received April 19.) SIR: I have the honor to inclose herewith the copy of a communication which I received from Lord Salisbury yesterday, in reply to Mr. Welsh's notes of the 13th of August last, in relation to the damages sustained by certain citizens of the United States, owners of twentytwo fishing vessels, in Fortune Bay, Newfoundland, in the month of January, 1878. It will be observed that the British Government have returned an unfavorable answer to our claims. I sent you an abstract of Lord Salisbury's letter by cable last evening. I have, &c., W. J. HOPPIN. [Inclosure 1 in No. 170.] The Marquis of Salisbury to Mr. Hoppin. FOREIGN OFFICE, April 3, 1880. SIR: In the note which I had the honor to address to you on the 12th of February, I explained the reason why a certain time has unavoidably elapsed before Her Majesty's Government were in a position to reply to Mr. Welsh's notes of the 13th of August last, in which he preferred, on the part of your government, a claim for $105,305.02 as compensation to some United States fishermen, on account of losses stated to have been sustained by them through certain occurrences which took place at Fortune Bay, Newfoundland, on the 6th of January, 1878. The delay which has arisen has been occasioned by the necessity of instituting a very careful inquiry into the circumstances of the case, to which, in all its bearings, Her Majesty's Government were anxious to give the fullest consideration, before coming to a decision. Her Maj esty's Government having now completed that inquiry, so far as lies within their power, I beg leave to request you to be so so good as to communicate to your government the following observations on the case. In considering whether compensation can properly be demanded and paid in this case, regard must be had to the facts as established, and to the intent and effect of the articles of the Treaty of Washington, and the convention of 1818, which are applicable to those facts. The facts, so far as they are known to Her Majesty's Government, are disclosed by the affidavits contained in the inclosed printed papers, which, for convenience of refer ence, have been numbered in consecutive order. Nos. 1 and 2 were received by Her Majesty's Government from his excellency the governor of Newfoundland. Nos. 3 to 10, inclusive, were attached to the report made by Captain Sulivan, of Her Majesty's ship Sirins, who was instructed to make an inquiry into the case. These were commu nicated to Mr. Welsh with my note of the 7th of November, 1878. Nos. 11 to 16, inclusive, are the affidavits of United States fishermen printed in the New York Herald of the 28th of January, 1878, and were received from Her Majesty's minister at Washington. They have not been received officially from the Government of the United States, but Her Majesty's Government see no reason to doubt their authenticity. Nos 17 to 22 were annexed to Mr. Welsh's note of the 13th of August last. A careful examination of the above evidence shows that on the day in question a large number of the crews of the United States fishing vessels came on shore and from the beach barred the herrings, the ends of their seines being secured to the shore. That the fishermen of the locality remonstrated against these proceedings, and, upon their remonstrance proving unavailing, removed the nets by force. Such being the facts, the following two questions arise: 1. Have United States fishermen the right to use the strand for purposes of actual fishing? 2. Have they the right to take herrings with a seine at the season of the year in question, or to use a seine at any season of the year for the purpose of barring herrings on the coast of Newfoundland ? The answers to the above questions depend on the interpretation of the treaties. With regard to the first question, namely, the right to the strand fishery, I would observe that article 1 of the convention between Great Britain and the United States of the 20th of October, 1818, secured to citizens of the United States the right in common with British subjects to take fish of every kind on certain specified portions of the coast of Ne wfoundland, and to use the shore for the purposes of purchasing wood and obtaining water, and for no other purpose whatever. Articles XVIII and XXXII of the Treaty of Washington superadded to the abovementioned privile ges the right for United States fishermen to take fish of every kind (with certain exceptions not relevant to the present case) on all portions of the coast of that island, and permission to land for the purpose of drying their nets and curing their fish, "provided, that in so doing they do not interfere with the rights of private property or with British fishermen in the peaceable use of any part of the said coast in their occupancy for the same purpose." Thus, whilst absolute freedom in the matter of fishing in territorial waters is granted, the right to use the shore for four specified purposes alone is mentioned in the treaty articles from which United States fishermen derive their privileges, namely, to purchase wood, to obtain water, to dry nets, and cure fish. The citizens of the United States are thus by clear implication absolutely precluded from the use of the shore in the direct act of catching fish. This view was maintained in the strongest manner before the Halifax Commission by the United States agent, who, with reference to the proper interpretation to be placed on the treaty stipulations, used the following language: "No rights to do anything upon the land are conferred upon the citizens of the United States under this treaty, with the single exception of the right to dry nets and cure fish on the shores of the Magdalen Islands, if we did not possess that before. No right to land for the purpose of seining from the shore; no right to the strand fishery' as it has been called; no right to do anything except water-borne on our vessels, to go within the limits which had been previously forbidden." "So far as the herring trade goes, we could not, if we were disposed to, carry it on successfully under the provisions of the treaty, for this herring trade is ubstantially a seining from the shore, a strand fishing, as it is called, and we have no right anywhere conferred by this treaty to go ashore and seine herring any more than we have to establish fish-traps." Her Majesty's Government, therefore, cannot anticipate that any difference of opinion will be found to exist between the two governments on this point. The incident now under discussion occurred on that part of the shore of Fortune Bay which is called Tickle Beach, Long Harbour. On this beach is situated the fishing settlement of Mark Bolt, a British fisherman, who in his evidence, taken upon oath, deposed as follows: The ground I occupy was granted me for life by government, and for which I have to pay a fee. There are two families on the beach; there were three in winter. Our living is dependent on our fishing off this settlement. If these large American seines are allowed to be hauled, it forces me away from the place." John Saunders, another British fisherman of Tickle Beach, deposed that the United States fishermen hauled their seine on the beach immediately in front of his property. The United States fishermen, therefore, on the occasion in question, not only exceeded the limits of their treaty privileges by fishing from the shore, but they "interfered with the rights of private property and with British fishermen in the peaceable use of that part of the coast in their occupancy for the same purpose," contrary to the express provisions of Articles XVIII and XXXII of the Treaty of Washington. Further, they used seines for the purpose of in-barring herring, and this leads me to the consideration of the second question, namely, whether United States fishermen have the right to take herring with a seine at the season of the year in question, or to use a seine at any season of the year for the purpose of barring herring on the coast of Newfoundland. The in-barring of herring is a practice most injurious, and, if continued, calculated in time to destroy the fishery, consequently it has been prohibited by statute since 1862. In my note to Mr. Welsh, of the 7th of November, 1878, I stated "that British sovereignty, as regards these waters, is limited in its scope by the engagements of the Treaty of Washington, which cannot be modified or affected by any municipal legislation," and Her Majesty's Government fully admit that United States fishermen have the right of participation on the Newfoundland inshore fisheries, in common with British subjects, as specified in Article XVIII of that treaty. But it cannot be claimed, consistently with this right of participation in common with the British fishermen, that the United States fishermen have any other, and still less that they have greater, rights than the British fisherman had at the date of the treaty. If, then, at the date of the signature of the Treaty of Washington, certain restraints were, by the municipal law, imposed upon the British fishermen, the United States fish ermen were, by the express terms of the treaty, equally subjected to those restraints, and the obligation to observe in common with the British the then existing local lass and regulations, which is implied by the words “in common," attached to the United States citizens as soon as they claimed the benefit of the treaty. That such was the view entertained by the Government of the United States during the existence of the reciprocity treaty, under which United States fishermen enjoyed precisely the same rights of fishing as they do now under the Treaty of Washington, is proved conclusively by the circular issued on the 28th of March, 1856, to the collector of customs at Boston, which so thoroughly expressed the views of Her Majesty's Government on this point that I quote it here in extenso. Mr. Marcy to Mr. Peaslee, [circular}. "DEPARTMENT OF STATE, Washington, March 28, 1856. "SIR: It is understood that there are certain acts of the British North American colonial legislatures, and also, perhaps, executive regulations, intended to prevent the wanton destruction of the fish which frequent the coasts of the colonies, and injuries to the fishing thereon. It is deemed reasonable and desirable that both the United States and British fishermen should pay a like respect to such laws and regulations which are designed to preserve and increase the productiveness of the fisheries of those coasts. Such being the object of these laws and regulations, the observance of them is enforced upon the citizens of the United States in the like manner as they are observed by British subjects. By granting the mutual use of the inshore fisheries, neither party has yielded its right to civic jurisdiction over a marine league along its coasts. "Its laws are as obligatory upon the citizens or subjects of the other as upon its own. The laws of the British Provinces, not in conflict with the provisions of the Reciprocity Treaty, would be as binding upon the citizens of the United States within that jurisdiction as upon British subjects. Should they be so framed or executed as to make any discrimination in favor of British fishermen, or to impair the rights secured to American fishermen by that treaty, those injuriously affected by them will appeal to this government for redress. In presenting complaints of this kind, should there be cause for doing so, they are requested to furnish the Department of State with a copy of the law or regulation which is alleged injuriously to affect their rights or to make an unfair discrimination between the fishermen of the respective countries, or with a statement of any sup posed grievance in the execution of such law or regulation, in order that the matter may be arranged by the two governments. You will make this direction known to the masters of such fishing vessels as belong to your port, in such manner as you may deem most advisable. "COLLECTOR OF THE CUSTOMS, Boston." "W. L. MARCY. I have the honor to inclose a copy of an act passed by the colonial legislature at Newfoundland, on the 27th March, 1862, for the protection of the herring an salmon fisheries on the coast, and a copy of cap. 102 of the consolidated statutes of Newfoundland, passed in 1872. The first section of the act of 1862 prohibited the taking of herring with a seine between the 20th day of October and the 12th day of April, and further prohibited the use of seines at any time for the purpose of barring herring. These regulations, which were in force at the date of the Treaty of Washi ington, were not abolished, but confirmed by the subsequent statutes, and are binding under the treaty upon the citizens of the United States in common with British subjects. The United States fishermen, therefore, in landing for the purpose of fishing at Tickle Beach, in using a seine at a prohibited time, and in barring herring with seines from the shore exceeded their treaty privileges, and were engaged in unlawfi acts. Her Majesty's Government have no wish to insist on any illiberal construction of the language of the treaty, and would not consider it necessary to make any formal complaint on the subject of a casual infringement of the letter of its stipulations which did not involve any substantial detriment to British interests and to the fishery in general. An excess on the part of the United States fishermen of the precise limits of the rights secured to them might proceed as much from ignorance as from wilfulness: but the present claim for compensation is based on losses resulting from a collisiot which was the direct consequence of such excess, and Her Majesty's Government fee. bound to point to the fact that the United States fishermen were the first and real cause of the mischief by overstepping the limits of the privileges secured to them, in a manner gravely prejudicial to the rights of other fishermen. For the reasons above stated, Her Majesty's Government are of opinion that, under the circumstances of the case as at present within their knowledge, the claim advanced by the United States fishermen for compensation on account of the losses stated to have been sustained by them on the occasion in question is one which should not be entertained. Mr. Evarts will not require to be assured that Her Majesty's Government, while unable to admit the contention of the United States Government on the present occasion, are fully sensible of the evils arising from any difference of opinion between the two governments in regard to the fishery rights of their respective subjects. They have always admitted the incompetence of the colonial or the imperial legislature to limit by subsequent legislation the advantages secured by treaty to the subjects of another power. If it should be the opinion of the Government of the United States that any act of the colonial legislature subsequent in date to the Treaty of Washington has trenched upon the rights enjoyed by the citizens of the United States in virtue of that instrument, Her Majesty's Government will consider any communication addressed to them in that view, with a cordial and anxious desire to remove all just grounds of complaint. I have, &c., SALISBURY. Appendix A.-Collected affidavits of American fishermen submitted to the British Government. Appendix B.-Statutes of Newfoundland applicable to the fisheries. APPENDIX A. (1.) Deposition of Alfred Noel. NEWFOUNDLAND, CENTRAL DISTRICT, ST. JOHN'S, to wit: THE examination of Alfred Noel, of St. John's aforesaid, master mariner, taken upon oath, and who saith: I am master of the schooner Nautilus of this port, and on the 19th day of December last I was at Long Harbour, in Fortune Bay, in the Nautilus, which was anchored off Woody Island. I had a crew of seven men, and I was there engaged in the herring fishery. There were several American schooners; seven of them were lying off Woody Island, and two French vessels. This island forms the harbour within half-a-mile of the narrows of Long Harbour; and other American schooners and Newfoundland fishing craft were inside Woody Island, which is the inside part of Long Harbour. All the craft there, English and American, were hauling herring in seines and nets, and the Americans were purchasing herring from the English. Everything went off quietly, and the greatest harmony prevailed until Sunday, the 6th day of January, when about half-past 2 o'clock in the afternoon five seines, belonging to the American schooners, were put into the water by their crews at the beach on the north-east side of Long Harbour. I know two of the captains by name, Dago and Jacobs, belonging to Gloucester, United States, but do not know the names of their schooners. The whole five seines were barred full of herring, when the English crews of the crafts belonging to Fortune Bay ordered them to take their seines up or they would take them up for them; and the Fortune Bay men, finding they would not do as they were requested, then hauled up two of the American seines, but without any damage or injury, and two were at the same time taken up by the Americans; and at the same time a seine belonging to Captain Dago was taken up by the Fortune Bay men, the herring thrown out, and the seine was torn up and destroyed. Before this occurrence on the said Sunday, one of the American schooners had a seine barred with herring on the beach at Long Harbour for seven days, and it was not at any time meddled with by the Fortune Bay men or any one. Some of the Fortune Bay men had nets out in the water on that Sunday, and the same had been there during the week, but none of the Newfoundland fishermen attempted to haul herring on Sunday at any time while I was at Long Harbour. The Americans' practice had been until lately to purchase herring from the Newfoundland fishermen in Fortune Bay, but this year and last year the Americans have brought their own seines to haul herring for themselves. The American seines are 30 fathoms deep and 200 fathoms long, whilst those used by our fishermen are 12 to 13 fathoms deep and 120 fathoms long. These American seines are used for barring herring in deep water, such as the Fortune Bay Harbors, viz, Long Harbour, Bay del Nord, and Rencontre. Our fishermen never bar herring, and herring have never been barred in Fortune Bay, to my knowledge, until the Americans brought the large seines I have alluded to into Fortune Bay and used them there to the disadvantage of our fishermen. This mode of barring herring in such harbours as I have mentioned |