Mr. Fish to Sir E. Thornton.

(Copy.)

DEPARTMENT OF STATE,

WASHINGTON, May 8th, 1871.

SIR, AS several articles of the Treaty which has been signed this day, relating to the admission of citizens of the United States to fish within the Territorial Waters of Her Britannic Majesty on the coasts of Canada, Prince Edward Island, and Newfoundland, cannot come into full operation until the legislation contemplated in that instrument shall have taken place, and as it seems to be in accordance with the interests of both Governments in furtherance of the objects and spirit of the Treaty, that the citizens of the United States should have the enjoyment of that liberty during the present season, I am directed by the President to express to you his hope that Her Majesty's Government will be prepared in the event of the ratification of the Treaty, to make on their own behalf, and to urge the Governments of the Dominion of Canada, of Prince Edward Island and of Newfoundland, to make for the season referred to within their respective jurisdictions such relaxations and regulations as it may respectively be in their power to adopt, with a view to the admission of American fishermen to the liberty which it is proposed to secure to them by the Treaty. The Government of the United States would be prepared at the same time to admit British subjects to the right of fishing in the Waters of the United States specified in the Treaty; but as the admission into the United States, free of duty, of any articles which are by law subject to duty cannot be allowed without the sanction of Congress, the President will, in case the above suggestion meets with the views of the British Government, recommend and urge upon Congress, at their next Session, that any duties which may have been collected en and after the first day of July next, on fish oil and fish (except fish of the Inland Lakes and of the Rivers falling into the same, and except fish preserved in oil) the produce of the fisheries of the Dominion of Canada and of Prince Edward Island, shall be returned and refunded to the parties paying the same, if a similar arrangement is made with respect to the admission into the British Possessions of fish oil and fish (with the like exception) being the produce of the Fisheries of the United States.

SIR, I have the honor to acknowledge the receipt of your note of yesterday's date. and to inform you in reply that I have been authorized by Earl Granville to state that in the event of the ratification of the Treaty signed yesterday, Her Majesty's Government will be prepared to recommend to the Governments of the Dominion of Canada, of Prince Edward Island, and of Newfoundland, that the provisional arrangement proposed in your noto above mentioned with regard to the right of fishing by United States citizens on the coasts of those British possessions, and by British subjects in the waters of the United States, described in Article XIX of the Treaty, shall take effect during the coming season, on the understanding that the ultimate decision of this question must rest with the above mentioned Colonial Governments, who would be asked to grant the immediate and certain right of fishing within the territorial waters of those colonies, whilst the return of the import duties on fish from the 1st of July next, promised by the United States, is prospective and contingent on the action of Congress.

The Honorable Hamilton Fish,

I have, &c.,

EDWARD THORNTON,

(Copy-Canada-No. 445.)

The Secretary of State for the Colonies to the Governor General.

DOWNING STREET,

20th June, 1871.

MY LORD,-In accordance with the strong wish expressed by the Dominion Government, that a representation should be made to the United States with reference to the losses inflicted on Canada by the Fenian raids; Her Majesty's Government instructed the British High Commissioners to bring the claims arising out of those raids before the Joint High Commission.

Your Lordship will observe from the Protocols of Conferences, copies of which were transmitted to you in my despatch No. 444 of the 17th inst., that the American Commissioners declined to entertain the proposal made by the Commissioners to include these claims in the Treaty.

Her Majesty's Government were well aware of the serious difficulties in the way of settling this question, and they could not, therefore, feel surprised at this result. At the same time, it was with much regret that they acquiesced in the omission of these claims from the general settlement of outstanding questions between Great Britain and the United States.

But it seemed to them evident that the British Commissioners were right in thinking that there was no reasonable probability that by further pressing the point an agreement would be come to upon it with the American Commissioners, and when the choice lay between the settlement of all the other differences between the two countries on terms which Her Majesty's Government believed to be honorable to both, and beneficial alike to Canada and to the rest of the Empire, and the frustration of all hope of bringing the negotiations to a satisfactory issue, they could not hesitate as to the course which it was their duty to take.

The Governor General to the Secretary of State for the Colonies.

CACOUNA,
August 15th, 1871.

MY LORD,With reference to Your Lordships despatch No. 444, of the 17th June, which I duly referred to the Privy Council of the Dominion; I have the honor to transmit herewith the report of a Committee of that body, containing their views on the subject of the Treaty of Washington, in so far as it affects the interests of Canada. I have, &c.,

The Right Honorable,

The Earl of Kimberley,

&c., &c., &c.

(Signed)

LISGAR.

(No. 444.)

Copy of a Report of a Committee of the Privy Council, dated 28th July, 1871, submitted to His Excellency the Governor General.

The Committee of the Privy Council have had under their consideration the Earl of Kimberley's despatch to Your Excellency, dated the 17th June ult., transmitting copies. of the Treaty signed at Washington on the 8th May last, by the Joint High Commissioners, and which has since been ratified by Her Majesty, and by the United States of America; of the instructions to Her Majesty's High Commissioners, and of the No. 445. protocols of the Conferences held by the Commission; and likewise the Earl of Kimberley's despatch of the 20th June ultimo, explaining the failure of Her Majesty's Government to obtain the consideration by the United States Commissioners of the claims of Canada for the losses sustained owing to the Fenian raids of 1866 and 1870. The Committee of the Privy Council have not failed to give their anxious consideration to the important subject discussed in the Earl of Kimberley's despatches, and they feel assured that they will consult the best interests of the Empire, by stating frankly for the information of Her Majesty's Government the result of their deliberations, which they believe to be in accordance with public opinion in all parts of the Dominion. The Committee of the Privy Council readily admit that Canada is deeply interested in the maintenance of cordial relations between the Republic of the United States, and the British Empire, and they would therefore have been prepared without hesitation to recommend the Canadian Parliament to co-operate in procuring an amicable settlement of all differences likely to endanger the good understanding between the two Countries. For such an object they would not have hesitated to recommend the concession of some valuable rights, which they have always claimed to enjoy under the Treaty of 1818, and for which, as the Earl of Kimberley observes, Her Majesty's Government have always contended, both Governments having acted on the interpretation given to the Treaty in question by high legal authorities. The general dissatisfaction which the publication of the Treaty of Washington has produced in Canada, and which has been expressed with as much force in the Agricultural Districts of the West, as in the Maritime Provinces, arises chiefly from two causes.

1st. That the principal cause of difference between Canada and the United States has not been removed by the Treaty, but remains a subject for anxiety.

2nd. That a cession of territorial rights of great value has been made to the United States, not only without the previous assent of Canada, but contrary to the expressed wishes of the Canadian Government.

The Committee of the Privy Council will submit their views on both those points for the information of Her Majesty's Government, in the hope that by means of discussion, a more satisfactory understanding between the two Governments may be arrived at. The Earl of Kimberley has referred to the rules laid down in Article VI of the Treaty of Washington, as to the international duties of neutral Governments, as being of special importance to the Dominion, but the Committee of the Privy Council, judging from past experience, are much more apprehensive of misunderstanding, owing to the apparent difference of opinion between Canada and the United States, as to the relative duties of friendly States in a time of peace. It is unnecessary to enter into any lengthened discussion of the conduct of the United States during the last six or seven years, with reference to the organization of considerable numbers of the citizens of those states under the designation of Fenians. The views of the Canadian Government on this subject are in possession of Her Majesty's Government, and it appears from the proctocol of conference between the High Commissioners, that the British Commissioners presented the claims of the people of Canada, and were instructed to state that they were regarded by Her Majesty's Government as coming within the class of subjects indicated by Sir Edward Thornton, in his letter of 26th January last, as subjects for the consideration of the Joint High Commissioners. The Earl of Kimberley states that it was with much

regret that Her Majesty's Government acquiesced in the omission of these claims from the general settlement of outstanding questions between Great Britain and the United States, and the Committee of the Privy Council, while fully participating in that regret, must add that the fact that this Fenian organization is still in full vigour, and that there seems no reason to hope that the United States Government will perform its duty as a friendly neighbour any better in the future than in the past, leads them to entertain a just apprehension that the outstanding subject of difference with the United States is the one of all others which is of special importance to the Dominion. They must add that they are not aware that during the existence of this Fenian organization, which for nearly seven years has been a cause of irritation and expense to the people of Canada, Her Majesty's Government have made any vigorous effort to induce the Government of the United States to perform its duty to a neighbouring people who earnestly desire to live with them on terms of amity, and who during the civil war loyally performed all the duties of neutrals to the expressed satisfaction of the Government of the United States. On the contrary while in the opinion of the Government, and the entire people of Canada, the Government of the United States neglected, until much too late, to take the necessary measures to prevent the Fenian invasion of 1870. Her Majesty's Government hastened to acknowledge by cable telegram, the prompt action of the President, and to thank him for it. The Committee of the Privy Council will only add on this painful subject that it is one on which the greatest unanimity exists among all classes of the people throughout the Dominion, and the failure of the High Commissioners to deal with it has been one cause of the prevailing dissatisfaction with the Treaty of Washington. The Committee of the Privy Council will proceed to the consideration of the other subject of dissatisfaction in Canada, viz., the cession to the citizens of the United States of the right to the use of the inshore fisheries, in common with the people of Canada. The Earl of Kimberley after observing that the Canadian Government took the initiative in suggesting that a joint British and American Commission should be appointed with a view to settle the disputes which had arisen as to the interpretation of the Treaty of 1818, proceeds to state that "the causes of the difficulty lay deeper than any question of inter"pretation, that the discussion of such points as the correct definition of bays could not "lead to a friendly agreement with the United States," and that it was necessary there“fore to endeavour to find an equivalent which the United States might be willing to "give in return for the fishery privileges." In the foregoing opinion of the Earl of Kimberley, the Committee of the Privy Council are unable to concur, and they cannot but regret that no opportunity was afforded them of communicating to Her Majesty's Government their views on a subject of so much importance to Canada prior to the meeting of the Joint High Commission.

When the Canadian Government took the initiative of suggesting the appointment of a Joint British and American Commission they never contemplated the surrender of their territorial rights, and they had no reason to suppose that Her Majesty's Government entertained the sentiments expressed by the Earl of Kimberly in his recent despatch. Had such sentiments been expressed to the delegate appointed by the Canadian Government to confer with His Lordship a few months before the appointment of the Commission it would at least have been in their power to have remonstrated against the cession of the inshore fisheries, and it would moreover have prevented any member of the Canadian Government, from acting as a member of the Joint High Commission unless on the clear understanding that no such cession should be embodied in the treaty without their consent. The expediency of the cession of a common right to the inshore fisheries has been defended on the ground that such a sacrifice on the part of Canada should be made in the interests of peace.

The Committee of the Privy Council, as they have already observed, would have been prepared to recommend any necessary concession for so desirable an object, but they must remind the Earl of Kimberley that the original proposition of Sir Edward Thornton, as appears by his letter of 26th January was that "a friendly and complete understanding

advantage would result from a prolonged controversy between the two Governments as to the details of the Treaty, and the manner in which the negotiation was conducted. There are, however, two or three statements in the Report which it is necessary that I should not leave unnoticed.

The Committee seem to be under the impression that the right to participate in the Colonial Inshore Fisheries has been conceded to the United States without the previous consent of Canada. On this I have to observe that provision has been made for obtaining the assent of Canada in the manner which is strictly in accordance with constitutional usage, namely by stipulating that the fishery articles shall not come into force without the previous assent of the Dominion Parliament. If the Crown were to conclude a similar Treaty as regards the Fisheries of the United Kingdom, the assent of the Imperial Parliament would be reserved in no other manner.

I must also point out that the Committee are under an entire misapprehension in supposing that the cession of the Fishery rights is to be made for "what Her Majesty's "Government have admitted to be an inadequate consideration." If you will refer to my Despatch of June 17th, you will find that it was there stated that "the reciprocal concession of free fishing with free impost of fish and fish oil together with the payment of such a sum of money as may fairly represent the excess of value of the Colonial over the American concession seems to Her Majesty's Government to be an equitable solution of the difficulty."

Lastly, I must advert to the statement that "when the Canadian Government took the initiative in suggesting the appointment of a Joint British and American Commission, they never contemplated the surrender of their territorial rights, and they had no reason to suppose that Her Majesty's Government entertained the sentiments expressed by the Earl of Kimberley in his recent despatch. Had such sentiments been expressed to the delegate, appointed by the Canadian Government to confer with His Lordship a few months before the appointment of the Commission, it would at least have been in their power to have remonstrated against the cession of the inshore fisheries, and it would moreover have prevented any member of the Canadian Government from acting as a member of the Joint High Commission, unless on the clear understanding that no such cession should be embodied in the Treaty without their consent."

It is true, no doubt, that in the conversation which I had with Mr. Campbell on the subject of the appointment of a joint British and American Commission, I did not allude to the possibility of such a Commission leading to an arrangement by which United States' fishermen should be admitted to participation in the Colonial inshore fisheries; but I could not then anticipate that an extended negotiation embracing all the questions at issue between Great Britain and the United States would arise out of the proposal to appoint a Commission upon the Fisheries; and when the Joint High Commission was appointed, it was distinctly intimated through Your Lordship to Sir John Macdonald, with reference to the Fisheries, before he accepted the office of Commissioner, that it was impossible for Her Majesty's Government to pledge themselves to a foregone conclusion on any particular point before entering into the negotiation.