House Documents, Otherwise Publ. as Executive Documents

"If the Americans had been allowed to secure all the herrings in the bay for themselves, which they could have done that day, they would have filled all their vessels, and the neighboring fishermen would have lost all chance on the following week day." (Deposition of James Searwell.)

"The Americans, by hauling herring that day, when the Englishmen could not, were robbing them of their lawful and just chance of securing their share in them; and, further, had they secured all they had barred, they would, I believe, have filled every vessel of theirs in the bay." (Deposition of John Cluett.)

See also the affidavits of the American captains.

7. That in consequence of this violence all the vessels abandoned the fishing grounds; some without cargoes, some with very small cargoes purchased from the natives, and that their voyages were a loss to their owners.

8. That the seining was conducted at a distance from any land or fishing privilege in the occupation of any British subject. (See affidavits Willard G. Rode, Charles Dagle, and Michael B. Murray.)

9. That none of the vessels of the United States made any further attempts to fish, but three or four which were delayed in the neighborhood purchased small supplies of herring. (See British depositions of John Saunders and Silas Fudge, wherein it is stated that the American vessels only remained a few days, and that after January 6 no fish came into the harbor.) All the American affidavits show that the United States vessels were afraid to use their seines after this, and that they left almost immediately, most of them coming home in ballast.

10. That this violenco has had such an effect on this special fishing industry that in the present winter of 1878-79 it has been almost entirely abandoned, and last winter's fleet of twenty-six (26) has been reduced to eight (8), and none of these have gone provided with seines, but they will all be compelled to purchase their fish of the Inhabitants of Newfoundland. (See statement of the collector of the port of Gloucester.)

In support of these facts we append hereto

1. A list of the vessels whose owners we represent.

2. The affidavits of the masters and erews of the same vessels.

3. Sworn statements of the owners as to the actual expenses of each vessel upon the interrupted voyage, the average profit of their previous voyages, and the loss of cargoes consequent upon their forcible expulsion in this case.

4. Statements of the collector of the port of Gloucester, giving the number of vessels engaged in the Newfoundland herring-fishery in the winters of 1877-'78 and 1878-79.

In the dispatch of Lord Salisbury, dated August 23, 1878, the British Government assert that "the United States fishermen on this occasion had committed three distinct breaches of the law," as stated in the report of Captain Sullivan, viz:

"1. That the Americans were using seines for catching herring on the 6th of January, 1878, in direct violation of Title XXVII, chapter 102, section 1, of the consolidated statutes of Newfoundland, viz: 'No person shall haul or take herring by or in a seine or other such contrivance on or near any part of the coast of this colony or of its dependencies, or in any of the bays, harbors, or other places therein, at any time between the 20th day of October and the 25th day of April.'

"2. That the American captains were setting and putting out seines and hauling and taking herring on Sunday, the 6th of January, in direct violation of section 4, chapter 7, of the act passed 26th April, 1876, entitled 'An act to amend the law relating to the coast fisheries,' viz: No person shall between the hours of twelve o'clock on Saturday night and twelve o'clock on Sunday night haul or take any herring, caplin, or squid with net, seines, bunts, or any such contrivance for the purpose of such hauling or taking.'

"3. That they were barring fish in direct violation of the continuance of the same act, Title XXVII, chapter 102, section 1, of the consolidated statutes of Newfoundland, 'or at any time use a seine or other contrivance for the catching or taking of herrings, except by way of shooting and forthwith hauling the same.""

Leaving to your own consideration the general question whether or not colonial legislatures can enact any laws or local regulations which will in any way control or limit the United States fisherman while pursuing his avocation under the treaty of Washington, we desire to call your attention to the full text of the laws alleged to be infringed (copies of which, as well as of an amendment passed April, 1877, are herewith inclosed).

Title XXXVII, chap. 102, of the consolidated acts of Newfoundland, provides"SECTION 1. That no person shall take herring on the coast of Newfoundland by a seine or other such contrivance at any time between the 20th day of October and the 12th day of April in any year, or at any time use a seine except by way of shooting and forthwith hauling the same.

SEC. 2. That no person shall, any time between the 20th day of December and the

1st day of April, in any year, catch or take herring with seines of less than 23 inches mesh, &c.

"SEC. 4. No person shall, between the 20th day of April and the 20th day of Octo ber, in any year, haul, catch, or take herring or other bait for exportation within one mile, measured by the shore or across the water, of any settlement situated between Cape Chapeau Rouge and Point Enragée, near Cape Ray."

Section 28 provides that

"Nothing in this chapter shall affect the rights and privileges granted by treaty to the subjects of any state or power in amity with Her Majesty."

The twenty-eighth section of this act is not referred to by Captain Sulivan in his report, and seems to have escaped the notice of Lord Salisbury. The enforcement of this act would deprive us of all the privileges which the British Government valued so highly, and for which the United States has paid the immense sum of five million five hundred thousand dollars, one million of which is understood to be allowed to Newfoundland.

By sections 1 and 2 we are prohibited from securing herring in any way from October to April, and limited as to the manner and method of fishing at all other times of the year. The American fishing vessel, being employed in the mackerel fishery in the summer and in the herring fishery in the winter, uses the same seines for both, and cannot and should not be compelled to comply with local regulations as to the size, shape, and manner of using these seines, whether they are or are not just and proper when applied to the native fishermen living near the fishing grounds. But it appears, from Captain Sulivan's report and from the British depositions that these laws were unknown as well as unenforced in Fortune Bay.

There is another section of this act which does not concern the present case, but which, if enforced, would almost totally deprive the United States cod-fishing vessels of their rights under the treaty of 1871. The right to obtain fresh bait on the coast of Newfoundland for use on the Grand Banks during the summer months was claimed by the British Government to be of immense value to our fishermen, and was so considered by the arbitrators in making their award. But section 4 prohibits the taking of bait for exportation during the summer months for a long distance along the southern coast of the island, comprising the whole of Placentia Bay, the nearest and most favorite resort of our fishermen from the Grand Banks after bait. It is true this law has not as yet been enforced, but there is no guaranty that it may not be at any time. During the past session the Newfoundland legislature have had under consideration a law prohibiting the sale of bait to the American fishermen, and placing a heavy duty on all ice sold to them for the purpose of preserving bait.

The section IV, act of April 26, 1876, quoted by Lord Salisbury and Captain Sulivan, is as follows:

"No person shall between the hours of twelve o'clock on Saturday night and twelve o'clock on Sunday night haul or take any herring, caplin, or squid, with nets, seines, bunts, or any such contrivance, or set or put out any such net, seine, bunt, or contrivance for the purpose of such hauling or taking."

This law only prohibits the taking of certain kinds of fish on Sunday, viz, herring, caplin, or squid, and does not apply to cod or halibut, which the British evidence before the Halifax Commission endeavored to show were taken almost entirely within a short distance from the shore. By the amendment of 1877, this act was extended so as to apply to the taking of all fish for bait.

We deem it unnecessary to add to this statement any discussion as to the principles involved in Lord Salisbury's dispatches. The only fact to which we would further ask your attention is, that the very use of the fisheries for which we now contend was admitted to be ours under the treaty by the British Government before the Halifax Commission, and made the basis of the award of that tribunal.

The language of the treaty is as follows:

"It is agreed by the high contracting parties that in addition to the liberties secured to the United States fishermen by the convention between the United States and Great Britain, signed at London on 20th day of October, 1818, of taking, curing, and drying fish on certain coasts of the British North American colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Art. XXXIII of this treaty, to take fish of every kind except shell-fish on the sea-coast and shores, and in the bays, harbors, and creeks of the provinces of Quebec," &c.

It must be borne in mind that "liberty in common" has been valued by the Halifax Commission at $5,500,000, and the price of its enjoyment has been paid. That award and that payment were made upon the representation of the British Government that the treaty gave certain privileges to the United States fishermen, the exercise of which inflicted upon the original proprietor a certain amount of loss and damage which in justice to their interests required such compensation. This exercise, therefore, as stated in the British case, as evidenced in the British testimony, as maintained in the British argument, for which the British Government demanded and received compen.

sation, is the British construction of the extent of "the liberty in common" guaranteed by the treaty.

The British case states the argument as to the Newfoundland fisheries in the following language:

It is asserted on the part of Her Majesty's Government that the actual use which may be made of this privilege at the present moment is not so much in question as the actual value of it to those who may, if they will, use it. It is possible, and even probable, that the United States fishermen may at any moment avail themselves of the privilege of fishing in Newfoundland inshore waters to a much larger extent than they do at present; but even if they should not do so, it would not relieve them from the obligation of making the just payment for a right which they have acquired subject to the condition of making that payment. The case may be not inaptly illustrated by the somewhat analogous one of a tenancy of shooting or fishing privileges; it is not because the tenant fails to exercise the rights which he has acquired by virtue of his lease that the proprietor should be debarred from the recovery of his rent.

"There is a marked contrast, to the advantage of the United States citizens, between the privilege of access to fisheries the most valuable and productive in the world and the barren right accorded to the inhabitants of Newfoundland of fishing in the exhausted and preoccupied waters of the United States north of the 39th parallel of north latitude, in which there is no field for lucrative operations, even if British subjects desired to resort to them; and there are strong grounds for believing that year by year, as United States fishermen resort in greater numbers to the coasts of Newfoundland for the purpose of procuring bait and supplies, they will become more intimately acquainted with the resources of the inshore fisheries and their unlimited capacity for extension and development. As a matter of fact, United States vessels have, since the Washington treaty came into operation, been successfully engaged in these fisheries; and it is but reasonable to anticipate that, as the advantages to be derived from them become more widely known, larger numbers of United States fishermen will engage in them.

"A participation by fishermen of the United States in the freedom of these waters must, notwithstanding their wonderfully reproductive capacity, tell materially on the local catch, and, while affording to the United States fishermen a profitable employment, must seriously interfere with local success. The extra amount of bait also which is required for the supply of the United States demand for the bank fishery must have the effect of diminishing the supply of cod for the inshores, as it is well known that the presence of that fish is caused by the attraction offered by a large quantity of bait fishes, and as this quantity diminishes the cod will resort in fewer number to the coast. The effect of this diminution may not in all probability be apparent for some years to come, and whilst United States fishermen will have the liberty of enjoying the fisheries for several years in their present teeming and remunerative state, the effects of overfishing may, after their right to participate in them has lapsed, become seriously prejudicial to the interest of the local fishermen.

"II. The privilege of procuring bait and supplies, refitting, drying, transshipping, &c.

"Apart from the immense value to United States fishermen of participation in Newfoundland inshore fisheries must be estimated the important privilege of procuring bait for the prosecution of the bank and deep-sea fisheries, which are capable of unlimited expansion. With Newfoundland as a basis of operations, the right of procuring bait, refitting their vessels, drying and curing fish, procuring ice in abundance for the preservation of bait, liberty of transshiping their cargoes, &c., an almost continuous prosecution of the bank fishery is secured to them. By means of these advantages United States fishermen have acquired by the treaty of Washington all the requisite facilities for increasing their fishing operations to such an extent as to enable them to supply the demand for fish food in the United States markets, and largely to furnish the other fish markets of the world, and thereby exercise a competition which must inevitably prejudice Newfoundland exporters. It must be remembered, in contrast with the foregoing, that United States fishing craft before the conclusion of the treaty of Washington could only avail themselves of the coast of Newfoundland for obtaining a supply of wood and water, for shelter, and for necessary repairs in case of accident, and for no other purpose whatever; they therefore prosecuted the bank fishery under great disadvantages, notwithstanding which, owing to the failure of the United States local fisheries and the consequent necessity of providing new fishing grounds, the bank fisheries have developed into a lucrative source of employment to the fishermen of the United States. That this position is appreciated by those actively engaged in the bank fisheries is attested by the statements of competent witnesses, whose evidence will be laid before the commission."

And in reply of the British Government, refer ing to the same Newfoundland fisheries, is the following declaration :

"As regards the herring fishery on the coast of Newfoundland, it is availed of to a

considerable extent by the United States fishermen, and evidence will be adduced of large exportations by them in American vessels, particularly from Fortune Bay and the neighborhood, both to European and their own markets.

"The presence of United States fishermen upon the coast of Newfoundland, so far from being an advantage, as is assumed in the answer, operates most prejudically to Newfoundland fishermen. Bait is not thrown overboard to attract the fish, as asserted, but the United States bank fishing vessels, visiting the coast in such large numbers as they do for the purpose of obtaining bait, sweep the coast, creeks, and inlets, thereby diminishing the supply of bait for local catch, and scaring it from the grounds where it would otherwise be an attraction for cod."

In support of these views, the most abundant and complete testimony was produced by the British Government, showing the extent of the United States herring fishery, the character and construction of the seines used, the time when the vessels came and left, and the employment of the native fishermen by the United States vessels. And it follows unanswerably that upon the existence of that fishery between the months of October and April, and upon the use of just such seines as were used by the complainants in this case, and because the increasing direct fishery of the United States vessels was interfering with native methods and native profits, the British Government demanded and received compensation for the damages thus alleged to proceed from "the liberty in common to take fish of every kind" secured by the treaty. With what justice can the British Government now contend that the time and the method for which they asked and received compensation are forbidden by the terms of the very treaty under which they made the claim and received the payment?

In conclusion, and in reference to the suggestion of Lord Salisbury that the United States fishermen were bound to abstain from the use of the fishery until due representation had been made to Her Britannic Majesty's Government, we would say, without argument as to the correctness of any such assumption, that as a fact this is just what the United States fishermen did. They were engaged in the prosecution of a lawful industry, in a method which was recognized as lawful by the award of the Halifax Commission, the privilege to exercise which their government had agreed to pay for. They were forcibly stopped, not by legal authority, but by mob violence. They made no resistance; withdrew from the fishing grounds; represented the outrage to their government; have not returned to Newfoundland, and are waiting in perfect confidence that the government will vindicate their rights, and see that just compensation is made for their losses.

Respectfully,

DWIGHT FOSTER,
WM. HENRY TRESCOT,
Counsel for Claimants.

Annexes to the foregoing letter of Messrs. Foster and Trescot.