No. 271.
Mr. Fish to Mr. Wm. A. Bart.
Sir: Several seizures of American fishing vessels are reported by the consular officers within your consulate general, and by the parties interested. Some of the vessels thus seized upon the charge of violating [Page 432] the laws of the Dominion of Canada, or the other British North American provinces, have been taken into port for adjudication by the tribunals to which that function is assigned by the laws of the respective provinces. It is to be presumed that those tribunals will decide the cases respectively with intelligence and impartiality. 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 in the present stage of affairs. It is for those tribunals to construe the statutes under which they act. If the construction they may adopt shall appear to be in contravention of our treaties with Great Britain, or to be (which cannot be anticipated) plainly erroneous in a case admitting no reasonable doubt, it will then become the duty of the Government—a duty it will not be slow to discharge—to avail itself of all necessary means for obtaining redress. The present embarrassment is, that while we have reports of several seizures upon grounds as stated by the interested parties, which seem to be in contravention of international law and special treaties relating to the fisheries, these alleged causes of seizure are regarded as pretensions of over-zealous officers of the British navy and the colonial vessels, which will, as we hope and are bound in courtesy to expect, be repudiated by the courts before which our vessels are to be brought for adjudication. It is the desire of this Government, nevertheless, that our consular officers should watch the course of proceeding in these cases, and give prompt and authentic information of any decision which may be made in them. In particular if the charge against any American fishing vessel is only that she has been preparing to fish, without actual fishing in the prohibited limits, it is to be made known to the counsel of the owners of the vessel that this Government is not disposed to regard such mere preparation as an infraction of the obligations of our citizens engaged in the outfit and employment of fishing vessels, and it is desirous of having the point distinctly presented and adjudicated, if possible, without being complicated with other questions, so that if adversely decided, a case presenting that single issue may be made for appeal to the British tribunal of last resort. It is understood that the instructions of the imperial government of Great Britain do not authorize the capture of an American vessel found fishing within three miles of the coasts from which they are prohibited, or of a line drawn across the mouths of bays whose mouths do not exceed six geographical miles in width. In any case of condemnation it is desirable to have it appear with precision as well whether the vessel condemned was fishing within the prohibited distance, as whether the actual capture was made within that distance or beyond it, so as to be upon the high seas, in the sense which this Government is disposed to attach to these words, for the purpose of questions arising out of the operations of our fishing vessels on the northeastern coast.
In short, without incurring any expense in the employment of counsel till further instructed, it is expected that our consular officers in the districts where trials may take place of American vessels for supposed violations of the laws of the British imperial or colonial governments will lend their countenance and aid to the parties interested, and give prompt information of any decisions which may be made. They will request, in courteous terms, of the proper officer of any court making a decison, a certified copy of the opinion which may be written in the cause, paying the proper fee therefor, which will be allowed in their quarterly accounts, and forward it with the least possible delay.
This Department has expected such information from the spontaneous activity of our consular officers, and attributes the absence of it to the [Page 433] provincial courts being now in vacation. If this is the fact, I shall be glad to be informed of the dates at which the respective courts, having jurisdiction in the premises, may be expected to convene for the dispatch of business.
You will call the attention of all the consuls in your jurisdiction to the contents of this instruction, who are located at points where vessels will be likely to be taken in for adjudication.