March 2, 1911


It is never in the city where the newspaper is published. -is the worst. The salaries of these men have not hitherto been subject to garnishment because it has been considered ' contrary to public policyJ to allow this to be done. In some mysterious way that no one can find out, the business of the country will suffer, according to this theory, if these dead beats



aro made to pay their debts by having: their salaries garnisheed. This is simply a theory borrowed from some older lands where the civil servants were the sons, cousins or some other connection of the parties in power and were by this means protected from having to pay their honest debts, when confiding tradesmen trusted them and relied upon their promises. 'Contrary to public policy ' forsooth! What a hoary fiction that is! As if the pub-lrc good would not be better served by making these men pay their debts like every honest citizen and live up to their contracts. To emphasize the need for this legislation it -would be well if every retail merchants association in the country were to send down a deputation to Ottawa to urge the passing of the Bill. We in Kingston here will, it is true, not be affected by the Bill, because here our civil servants pay their legitimate debts, but for the principle of the thing we should all contend, namely, that in the eye of the law and in respect to their debts, civil servants are and should be like other individuals. Other cities_ are not so happy in this respect as in Kingston. The Peterborough ' Examiner * of December 12, says: Mr. Beauparlant, M.P., for St. Hyacinthe, has introduced into parliament a Bill which should pass into law. Heretofore civil servants at Ottawa have enjoyed a remarkable exemption. Their salaries were not attachable for debt. They might run bills for groceries, dry goods, and what not, and they were uncolleetable by process of law. Under the proposed law the civil servants are tc be legislated into the ranks of ordinary honesty, and respectability. The old law of exemption for responsibility for debts incurred was a premium on dishonesty. There are civil servants by the thousands in Ottawa and it stands to reason that practical freedom from paying honest debt must have exer cised a bad effect upon merchants and business. In the ordinary course of things collection of debts is difficult enough; and this difficulty adds to the difficulty, of business men making ends meet. Pew realize bow much the payment of even a small obligation exercices a cumulative effect; a sum like, say, ten dollars, goes the rounds, so to speak, and can possibly, in a hundred cases, help to make up an amount necessary to meet an obligation, and effect a balance with the bank. Pay-as-you-go is a splendid lubricant for the wheels of business, and pay promptly when you don't pay down, is the next best thing. I beg to quote from a letter which I have received, the following: A. M. Beauparlant, Esq., M.P., Ottawa. Dear Sir,-Let me congratulate you in connection with the Bill which you are introducing and which provides for the garnishment of the salaries of Dominion civil servants and does away with a remnant of the oppressive privileges of feudal times. * The salary of the poor workingman may he seized, while hands must he kept off the salaries of these wealthy gentlemen who earn Mr. BEAUPAELANT. as much as $1,000 or $2,000 per annum, and avoid paying their just debts. That was a dark spot and an anomaly, an anachronism in this democratic era of ours. I have found in my protracted career, that this exemption was practically a safeguard for prodigality and dishonesty. You are doing a meritorious act and the country should he grateful to you for so doing. I enclose a letter of approval from Sir Wilfrid Laurier, to whom I had submitted the matter. Please accept, together with the compliments of the season, the assurance of the high esteem in which I hold you. (Signed): G. Z. MAYEAND, Notary. I submit, Mr. Speaker, that the expressions of opinion I have read to the House are opportune to this discussion, and that something ought to be done to remedy the evil now existing. It is needless to remind the House that it is only just and honest that every one should pay his debts; it is also needless to say that most of the Dominion officials are faithful to their obligations and do not need any law or legal rule to compel them to pay their debts, the moral rule being sufficient. However, a certain number of these officials refuse to pay their just debts, although in a position to do so, and some of them even go so far as to insult their creditors when they are asked for what they honestly owe. Why the salary of a workingman who earns $30 or $40 a month should be liable to garnishee and the salary of the Dominion public official who earns from $100 to $500 a month is not so liable, is a discrimination which ought not be suffered to longer exist. Either an end should be put to the system of attaching small salaries or the same attachment should be allowed on high salaries. We are all aware that the operation of the law allowing or prohibiting the seizure of the salaries of those not in the Dominion service is within the sphere of the provincial legislature, but, the allowing or disallowing of the attachment of the salaries of employees of this government is within the purview of this parliament, and I trust that in the near future this parliament will put an end to the present system of exemption. Why should any class of men be granted such a privilege; why above all should the high salaries-and generally speaking the salaries of the Dominion public servants, may be considered comparatively high salaries- why should the high salaries be exempt from seizure while the low salaries of other wage earners are not. I expect to be told in reply that the system I advocate would create disturbance and inconvenience in the different departments by compelling some chief officials to go to the courts from time to time to make the required statement as to the amount due to the official in default, but the same inconvenience is now experienced by banking institutions, by municipal and provincial institutions, by railways, and by all kinds of industries, and the people prefer to suffer this inconvenience so that by complying with the requirements of the law, they may ensure that the principles of honesty shall prevail. Should not the Dominion government which is the chief institution in this country give to all others an example of fairness and honesty by compelling their officials to keep faith with their creditors. There is a department of justice specially created for the purpose of causing the principles of honesty to prevail in the whole community-and allow me to state en passant, Mr. Speaker, that the Department of Justice could not have at its head a more able, or a more devoted man than the present minister-and in conjunction with the departments of the attorneys general of the different provinces their mission is to make honesty and justice prevail by safeguarding the rights and properties, as well as the lives and liberties of the citizens. Why should not the several departments of this government be ready to sacrifice their convenience to some extent if need be, in order that principles of honesty and justice should prevail among their employees. The new system would have some inconveniences, we shall, perhaps, be told, but there is a reply, I trust, to every objection. The new system would be fair to the creditors, and would be desirable for the public officials themselves. It would be an advantage for the good ones, whom the present system does not help'as they deserve, and also for the others, who, precisely because they rely upon this privilege, are led to incur obligations beyond their means. I expect to be told, also, that government employees, on account of the deference due to authority, ought to be free from the rules applied to other citizens. Sir, I am a Liberal, and I believe in equality and in the responsibilities resulting from equality, rather than in privilege. When public officers are expected to be true to their promises and faithful to their obligations in business matters, this is the best guarantee that they will be true also to the government which employs and pays them. I believe that the community are not made for the government, or for the chief officers of state, but that the government and the chief officers of state are made for the community. with all due consequences of that fact. I may be looked upon as not being up to date in saying that I still believe in the possibility of one condition and one rule' of conduct for all men living in the same country, but I feel some pride in the hope that I may be of some use in that respect to the community in which I live. If the government cannot do something this year in the direction that I have proposed, and if I am still here next year, I will bring the same measure down again, because I think it is fair to all, and above all because it is honest.


LIB

Gustave Benjamin Boyer

Liberal

Mr. GUSTAVE BOYER (Vaudreuil).

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   SALARIES OF CIVIL SERVANTS.
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LIB

Joseph Pierre Turcotte

Liberal

Mr. J. P. TURCOTTE (Quebec county).

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   SALARIES OF CIVIL SERVANTS.
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LIB

Louis-Philippe Brodeur (Minister of the Naval Service; Minister of Marine and Fisheries)

Liberal

Hon. L. P. BRODEUR (Minister of Marine and Fisheries).

(Translation). I did not intend speaking on this question, but after listening to certain remarks made by the hon. member for Vaudreuil (Mr. Boyer), concerning the manner in which some contracts are carried out, I deem it my duty to say a word.

A few years since, as hon. gentlemen will remember, the House discussed again and again the desirability ot changing the practice then followed in regard to boarding the men working for the Department of Marine. That question came up several times, and finally the unanimous opinion of the House seemed to favour "the idea of the department granting a contract to some employee who would undertake to board the men and all the passengers sojourning on the vessels. The outcome was altogether satisfactory. We concluded with the stewards on the various vessels an arrangement whereby we paid them an amount of 50 cents per head per day for the men composing the crew, and 60 cents for the officers. The result has been most satisfactory. I received the other day a report showing that last year a saving of several thousand dollars had been affected in this way.

The hon. member for Vaudreuil has given to understand that in one particular instance the steward had not paid for the supplies received from various points. I am very sorry to hear so. I only wish the hon. member were in his seat just now, and I regret he has been obliged to leave the House, temporarily. However, he will read what I said in 'Hansard.' Had he been here, I would have asked him to give me the name of that man, and if he is still in our employ, I will surely see to it that

these suppliers are paid, otherwise he will not be kept on.

As regards the Bill introduced by the hon. member for St. Hyacinthe (Mr. Beau-parlant), I agree with him. I know, and it has been stated to me on several occasions, that civil servants as a rule are in favour of such a measure. When I say that civil servants are in favour of such a measure I mean those who have no reason to fear the putting in force of such an enactment. I know that in the province of Ontario, in Ottawa, for instance, the same difficulties are not met with as in the province of Quebec, as here, the law provides a means whereby a creditor may to a certain extent, and in an indirect manner, lay hands on the salary of the government employee.

As regards the province of Quebec, it is a different matter. We have a law providing that salaries of local government employees may be garnisheed not wholly, but in part, as stated a moment ago by the hon. member for Quebec county (Mr. Tur-cotte). It is much to be desired that such a measure should be voted by this parliament in respect to Dominion government employees so as to oblige them to pav their just debts.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   SALARIES OF CIVIL SERVANTS.
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LIB

Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)

Liberal

Sir ALLEN AYLESWORTH (Minister of Justice).

We are indebted to my hon. friend from St. Hyacinthe (Mr. Beaupar-lant) for the great attention he has given this matter' and I personally feel certainly under obligation to him for having seen fit to address the Chair in the English tongue, although, judging by the facility he has displayed in that language, that is no trouble to him. At the outset I wish to say that, in my ideas on this subject, I am not actuated by any feeling of sympathy for the civil servant who does not pay his debts. To pay his debts is a man's first duty, if indeed he toe not acting contrary to his duty in incurring debts, But none the less, I must say that I look upon a proposition to change the law regarding the garnishment of the salaries of civil servants as one of very dcaibtful expediency indeed. The question is simply one of expediency, and the condition of the law -which now prevents the seizure of the salary of civil servants is one which exists, not out of any consideration for these employees, but simply and wholly out of consideration for the public interests. It is entirely from that point of view that I question the desirability of making the change advocated by my hon. friend. I have seen it stated in legal works, as the reason for this rule of law, that the King cannot be brought into court against his own will, and, of course, we all recognize that it is the prerogative of the King to be sued only with his own assent upon the advice of his attorney general. That prero-

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   SALARIES OF CIVIL SERVANTS.
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CON

Arthur Meighen

Conservative (1867-1942)

Mr. ARTHUR MEIGHEN (Portage la Prairie).

Not having had any notice that the subject introduced by the hon. member for St. Hyacinthe (Mr. Beauparlant) was to be discussed this afternoon, I come before the House without any preparation for the present debate. Nor would I have risen had not the Minister of Justice (Sir Allen Aylesworth) in his treatment of the case, in my judgment, departed from those principles of common sense which usually distinguish him in the application of legal formulas to the practical affairs of life. I listened very carefully to the defence of the present system which the Minister of Justice brought forward, and I must say that I fail to recognize any objection offered by him to the change which would not apply with equal force to many if not all the classes of cases in which salaries are gar-nishable at the present time. The Minister of Justice states that the present rule is based on the doctrine laid down by Baron Parke, that the salary of the civil servant is in the nature of a gratuity and that it is made for the purpose of enabling that servant to render to the public the greatest possible service in the capacity in which

he acts, and to prevent him from being harassed by creditors or others to the detriment of the public service. To that statement of the doctrine, I have no exception to take. That doubtless is correct. But wherein does it apply? Does not the same doctrine, in so far as it affects this argument, apply to the servant of the railway companies, the servant of the provincial government-both of whose salaries are garnishable at the present time. The salary paid to any one may very well be put on the same basis as that laid down by Baron Parke as a matter of legal doctrine. But the whole question before the House is: What is the interest of common honesty and of equal rights among not only civil servants but all servants throughout the country. It may be that the civil servant is in a better position to offer free and unhampered service to the public if he is hedged about by the wall-the artificial wall-which now protects him from the ordinary process of garnishment. But I cannot see why the public as a corporate body has any higher rights than the ordinary citizen in this regard. It seems to me that the public as a body politic is in the same position as the Canadian Pacific railway, or any other company, or any private employer. Why should it be otherwise? Is not the Canadian Pacific Railway Company entitled to the very best possible service from the employees whom it pays? They are entitled to that just in the same sense as is the government of Canada. Is not a farmer on the plains entitled to the best possible service which the body and brain of his hired servant is able to give him? Certainly he is. The same rule applies throughout our commercial life. Why should we single out the government and say that, because it is stronger or represents more people that it is, in any higher or loftier sense, entitled to the unhampered efforts of its servants than any other employers in the community? I see no distinction so far as the interests of the country are concerned.

And why is the civil servant entitled to protection? The minister says he has no sympathy with the civil servant who runs into debt. That, doubtless, is just as true of the civil servant as of any other servant. But the minister says also: I have no

sympathy with the creditor who allows the civil servant to run into his debt. The minister also said-let me do him ample justice-the creditor who permits the civil servant to run an account knows the position of that civil servant, knows his income, and consequently is warned beforehand, and incurs the credit at his own 'eril. That is equally true throughout the whole Tange of our commercial life. It is true of the employees of the great companies; it is true of the labouring man.

But what is the difference? These men do not incur the debt all with one creditor; if they did there would be some force in the argument of the Minister of Justice. But they go from one man to another; they concurrently run bills here and there, the Same as other classes of servants all over the country. There are the same exceptions in the matter of frugality in the civil service as anywhere else. _

How is one creditor to know that he is the only one, and even if he permits the civil servant to incur only a modest expenditure, he knows not, but what that man at some other store, or with some other creditor is doing the same thing as with him. Consequently there is absolutely no distinction, the creditor is no more on his guard in this case than in any other and he is liable to be innocently mulcted. The law has never denied to the creditor in any other case where he permits a man to live beyond his means, the right of recourse, that man has all the weapons for the collection of his debts he would have had, if he had acted paternally with reference to that debtor and told him he was not .to be permitted to buy what he could not pay for. He has all the redress possible in that case, and why should he be denied it in this? It seems to me that when the minister comes thoroughly to consider all the aspects of the case, he will not permit his mind to be warped by legal doctrines which are after all, only a relic of days gone by, and which are being one by one overruled at this time in behalf of the broader principles of common sense and equal Tights. The minister referred to the civil servant in another aspect. He said it was quite true that in so far as garnishment is concerned, we protect him, we say that his salary is not to be garnisheed. We also say he is not to be allowed to assign it. In both of these regards, I say he should have the same rights and should be restricted by the same methods as any other servant. In our .provinces certain rights to assign not only of civil servants, but of all servants, have been very seriously restricted. That has been done in what was believed to be the public interest, but no distinction was drawn between the civil servant and any other servant, the restriction applying to all, and was intended to guard the improvident and particularly those who who have wives and families, from 'anticipation of their means. The minister said we should protect the civil servant in the matter of garnishment, excuse in other regards he is restricted, he is not permitted to strike. A moment's reflection will surely convince the very clear mind of the Minister of Justice, that that is not a strong argument. Surely the right of striking is not a right which the civil servant can complain of being deprived of. It seems to me noth-Mr. MEIGHEN.

ing but the use of words to say that the civil servant suffers anything by the provision of our law, which forbids him to strike. The civil servant now has in his possession all the weapons that would be of any use to him in securing .an advance of his salary, and the weapon of striking would be absolutely worthless to him. I think the civil servant is better equipped in this way than the ordinary employee. I say, let the civil servant of Canada suffer garnishment if he goes behind in the same way as any other man, and then we shall have advanced at least one step further in the progress of democracy in Canada.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   SALARIES OF CIVIL SERVANTS.
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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

I wish rto heartily endorse the sentiment just expressed by my hon. friend from Portage, who has, to my mind, covered the whole range of this question, and I congratulate my hon. friend from St. Hyacinthe (Mr. Beaupariant) for bringing this matter up. The Minister of Justice has argued in his usually careful and lucid manner, but I fear the Minister of Justice is arguing from the standpoint of a lawyer, who wants to maintain his case on account of the precedents. There is no doubt of the force of the arguments in the decision of Baron Parke quoted, but that does not make it irrevocable. I cannot understand why a civil 'Servant should not be placed in exactly the same position as any other labourer, or servant or employee. He is as well paid, if not better paid than other men doing similar work for outside employers. He may be under one disadvantage, in that- he is a member of a class and has not the chance for advances in salary that he would have in a big corporation or employment in the ordinary business of the country. I do not believe to any great extent in the doctrine of the right of the creditor .to garnishee the wages of any man. I believe it is against the best interests of the civil servant himself to know that he is subject to this exemption. It may be that he and his family are anxious to shine in social circles, . and his security from having his salary attached, I believe, may cause him to run into excesses that he would not otherwise indulge in, and this may have placed'many of these people in the unfortunate position in which they find themselves. I believe this should be changed, and that if you put the civil servant exactly on a parity with every other labouring man or man working for a salary in the different provinces, and made him entirely subject to the jurisdiction of the provincial authorities with reference to garnishment, it would be to his advantage.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   SALARIES OF CIVIL SERVANTS.
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HAGUE ARBITRATION, ATLANTIC FISHERIES.

CON

Clarence Jameson

Conservative (1867-1942)

Mr. C. JAMESON (Digby).

A few days ago, a resolution standing in my name, call-

ing for the bringing down of certain correspondence which led up to the settlement of the North Atlantic Fisheries case for reference to the Hague Tribunal, was passed. I do not think it should have been necessary for a member to ask for the bringing down of this correspondence, because, it seems to me, the subject matter of that case was of sufficient importance for the government to have laid before the House all the information in their possession. So far the only information which they have brought down, printed and distributed is contained in a book issued a few days ago containing the award and some fishery regulations recently based on the award.

The Hague Award, when published on September 7, 1910, was hailed with a great deal of satisfaction by the government of Great Britain and the government of Canada, and was considered of sufficient importance to be made the subject of a reference in the speeches from the Throne at the opening of parliament in Canada, the opening of parliament in England and the opening of the legislature in the province of Nova Scotia. It was also considered of so much importance that the hon. Minister of Justice (Sir Allen Ayles-worth) has made sundry journeys up and down the country for the purpose of enlarging upon its virtues and expatiating upon its merits. One important feature in connection with this award, however, is that it does not apply to the Bay of Fundy, probably the largest bay in the western hemisphere and certainly, from the standpoint of the fisheries, the most important. Although the award makes a very important declaration respecting international law with regard to bays, the Canadian fishermen find themselves debarred from the benefit of that declaration with respect to the Bay of Fundy.

I may be permitted, Sir, to trace very briefly the history, leading up to the submission of this question by Great Britain and the United States to the international court of arbitration at The Hague. In 1908 an arbitration convention ot treaty was entered into between Great Britain and the United States of America. That was signed at Washington on April 4, 1908, and ratified on the 4th of June in the same year. The first article of the convention provided that differences which might arise relating to the interpretation of treaties existing between the two contracting parties, and which it had not been possible to settle by diplomacy, should be referred to the permanent court of arbitration at The Hague. The second article provided that in the case of a reference to The Hague a special agreement defining clearly the matter in dispute and the scope of the powers of the arbitrators should be entered into and the same rrticle goes on to state:

That His Majesty s government reserving the right before concluding a special agreement ill any matter affecting the interests of a selfgoverning dominion of the British Empire to obtain the concurrence therein of the government of that dominion.

And it also provides that no such special agreement shall be binding until confirmed by an exchange of notes between the two contracting parties. The third article merely relates to the ratification of the treaty, and the fourth and last article provides that this convention is concluded for a period of five years, in other words, until June 4, 1913.

On January 27, 1909, the special agreement under which the reference regarding the North Atlantic fisheries was made, was entered into between Great Britain and the United States, and signed at Washington on the date which I have mentioned, by Mr. Bryce, the British Ambassador, on behalf of Great Britain, and Mr. Root, Secretary of State for the United States, on behalf of the United States. Question 5, of the questions which were to be submitted to The Hague Tribunal under this special agreement, reads as follows :

From where must be measured the 'three marine miles of any of the coasts, bays, creeks, or harbours' referred to in the said article.

The article referred to was article 1 of the old convention, or treaty of 1818, between Great Britain and the United States with reference to the fisheries. The feature particularly referred to in article 1 was contained in the following words:

And the United States hereby renounce forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America not included within the above-mentioned limits.

' The above mentioned limits,' were in treaty waters, and did not affect the Bay of Fundy.

Under this question 5, referred to the court of arbitration at The Hague, one would have supposed that the exclusive rights of British subjects in the Bay of Fundy were to be settled. The question as fwi 11 be seen, embraced all bays: no bays were excluded from its scope, and it would be reasonable to suppose that the question as to all bays on the Atlantic coast in His Majesty's North American possessions would be settled, with regard to fisheries.

Section 4, on page 20, of the award of the tribunal, relates to the extraordinary contention of the United States with respect to these bays. It reads:

4. It has been further contended by the United States that the renunciation applies

only to bays six miles or less in width 'inter fauces terrae,' those bays only being territorial bays, because the three mile rule is. as shown by this treaty, as principle of international law applicable to coasts and should bo strictly and systematically applied to bays.

But the tribunal did not concur in that View. It went on to state in its answer to that question what 1 shall now read:

But the tribunal is unable to agree with this contention.

(a) Because admittedly the geographical character of a bay contains conditions which ccncern the interests of the territorial sovereign to a more intimate and important extent than do those connected with the open coast. Thus conditions of national and territorial integrity, of defence, of commerce and of industry are all vitally concerned and with thr control of the bays penetrating the national coast line. This interest varies, speaking generally in proportion to the penetration inland of the bay; but as no principle of international law recognizes any specified relation between the concavity of the bay and tho requirements for control by the territorial sovereignty, this tribunal is unable to qualify by the application of any new principle its interpretation of the treaty of 1818 as excluding bays in general from the strict and systematic application of the three mile rule; nor can this tribunal take cognizance ill this connection of other principles concerning the territorial sovereignty over bays such as ten mile or twelve mile limits of exclusion based on international acts subsequent to the treaty of 1818 and relating to ccasts of a different configuration and conditions of a different character;

(b) Because the opinion of jurists and publicists quoted in the proceedings conduce to tin opinion that speaking generally the three mile rule should not be strictly and systematically applied to bays;

(c) Because the treaties referring to these coasts, antedating the treaty of 1818, made special provisions as to bays, such as the treaties of 1686 and 1713 between Great Britain and France, and especially the treaty of 1778 between the United States and France. Likewise Jay's treaty of 1791, Art. 25, distinguished bays from the space ' within cannon-shot of the coast ' in regard to the right of seizure in times of war. If the proposed treaty of 1806 and the treaty of 1818 contained no disposition to that effect, the explanation may be found in the fact that they first extended the marginal belt to five miles, and also in the circumstance that the American proposition of 1818 in that respect was not limited to 'bays,' but extended to 'chambers formed by headlands' and to 'five marine miles from a right line from one headland to another,' a proposition which in the times of the Napoleonic wars would have affected to a very large extent the operations of the British navy;

(d) Because it has not been shown by the documents and correspondence in evidence here that the application of the three mile rule to bays was present to the minds of the negotiators in 1818 and they could not reasonably have been expected either to presume it or to provide against its presumption:

(e) Because it is difficult to explain tho Mr. JAMESON.

words in Art. Ill of the treaty under interpretation ' country . . . together -with its bays, harbours and creeks ' otherwise than that all bays without distinction as to their width were, in the opinion of the negotiators, part of the territory;

(f) Because from the information before this tribunal it is evident that the three mile rule is not applied to bays strictly or systematically either by the United States or by any other power;

(g) It has been recognized by the United Slates that bays stand apart, and that in respect of them territorial jurisdiction may be exercised farther than the marginal belt in the case of Delaware bay by the report of the United States Attorney General of May 19, 1793, and the letter of Mr. Jefferson to Mr. Genet, of November 8, 1793, declares the bays of the United States generally to be, ' as being landlocked, within the body of the United States.'

Now, Sir, if this doctrine had been applied to the Bay of Fundy it would have been declared territorial waters with exclusive rights to Canadian fishermen, and this doctrine would have applied to it, but for the so called understanding by which the Bay of Fundy was shut out. I read from the report of the award of the tribunal, the last clause in answer to question 5:

It is understood that nothing in these rules refers either Jo the Bay of Fundy considered as a whole apart from its bays and creeks or as to the innocent passage through the Gut of Canso, which were excluded by the agreement made by exchange of notes between Mr. Bacon and Mr. Bryce, dated February 21, 1909, and March 4, 1909; or to Conception bay, which was provided for by the decision of the privy council in the case of the Direct United States Cable Company vs. the Anglo-American Telegraph Company, in which decision the United States have acquiesced.

Here suddenly we find that the whole situation had been changed and instead of the Bay of Fundy being dealt with under question 5, it was expressly excluded toy some understanding or some mysterious subsidiary agreement which was entered into. I would like to ask the minister how it was that this was done, and why it was done? At whose instance and upon whose advice was it done, and who is it that is going to take the responsibility for the exclusion of the Bay of Fundy from the operation of this award? At this particular moment, and before I proceed further, I would ask the minister to give an answer to that question.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   HAGUE ARBITRATION, ATLANTIC FISHERIES.
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LIB

Louis-Philippe Brodeur (Minister of the Naval Service; Minister of Marine and Fisheries)

Liberal

Mr. BRODEUR.

Certain correspondence of many years ago between the United States government and the imperial government dealt with the question of the Bay of Fundy, and later there was an exchange of notes on the matter between Mr. Bryce and the United States Secretary of State.

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CON

Clarence Jameson

Conservative (1867-1942)

Mr. JAMESON.

What correspondence does the minister allude to?

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   HAGUE ARBITRATION, ATLANTIC FISHERIES.
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LIB

Louis-Philippe Brodeur (Minister of the Naval Service; Minister of Marine and Fisheries)

Liberal

Mr. BRODEUR.

It is correspondence which took place in the year 1843. Had I been aware that my hon. friend would bring up this matter I would have had this correspondence here.

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CON

Clarence Jameson

Conservative (1867-1942)

Mr. JAMESON.

I gave notice last night.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   HAGUE ARBITRATION, ATLANTIC FISHERIES.
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LIB

Louis-Philippe Brodeur (Minister of the Naval Service; Minister of Marine and Fisheries)

Liberal

Mr. BRODEUR.

The hon. gentleman did not mention the Bay of Fundy especially.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   HAGUE ARBITRATION, ATLANTIC FISHERIES.
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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART (Lanark).

What we want to know is whether there has been any arrangement made with reference to the Bay of Fundy excluding it from the treaty?

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   HAGUE ARBITRATION, ATLANTIC FISHERIES.
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LIB

Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)

Liberal

Sir ALLEN AYLESWORTH.

I tried to explain when addressing the House on this subject on the 2nd December last, the position with regard to the Bay of Fundy, as fully as I was able to. When the difficulties first arose between the United States and Nova Scotia in regard to this treaty as early as 1840, or before that year, the principal subject of the difficulty seemed to be the fishing by United States fishermen in the Bay of Fundy. The legislature of Nova Scotia insisting that the Bay of Fundy was, notwithstanding its size, within the renunciation made by the United States in the treaty of 1818, addressed the imperial authorities upon that subject. The matter was referred to the law officers of the Crown in England and they supported the contention of the Attorney General of Nova Scotia and delivered their opinion that the Bay of Fundy had been renounced by the treaty of 1818. The matter continued to be one of much agitation diplomatically between the United States and Great Britain and finally it was closed in the year 1845, I think in the month of March, by a despatch from Lord Aberdeen the foreign secretary, to the United States minister at the Court of St. James, in which Lord Aberdeen stated that while maintaining the legal right of Great Britain to exclude United States fishermen from the Bay of Fundy they would relax their right so far as that bay was concerned. Ever since then the bay has been treated as open to the fishermen of the United States, and it has been so treated by both parties. When the arrangement for submitting these difficulties to arbitration at the Hague was under verbal discussion at Washington in January, 1909, Mr. Root as representing the United States said as though it were a matter of course-and I think using these very words: Of course nothing in this

submission is to affect one way or the other the position of the Bay of Fundy, or of what was termed ' Innocent Passage through the Gut of Canso.' That was made a sine qua non of the reference to the arbi-145}

tration of the Hague at all. The contention was: The question of the Bay of

Fundy has been settled between ourselves and Great Britain now more than 60 years ago, and there is no question of reopening it. It was at one time proposed that a clause to that effect should be inserted in the agreement of submission to arbitration, but it was thought better-indeed I think it was my own suggestion-that instead of putting it upon the face of the agreement to arbitrate, informal notes stating the understanding in that respect should be exchanged between Mr. Bryce and Mr. Root. Such letters were exchanged in either Fobruary or March of 1909 . They were before the tribunal, and it is the circumstance of their having been so exchanged that leads to the tribunal making the observation in the award which the hon. gentleman has read, that it is understood that nothing in the rules which they were then suggesting should be taken to refer either to the Bay of Fundy or to the Gut of Canso, which were excluded by these notes of the 21st February and the 4th of March, 1909.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   HAGUE ARBITRATION, ATLANTIC FISHERIES.
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CON

Clarence Jameson

Conservative (1867-1942)

Mr. JAMESON.

The minister has given a pTetfy lengthy answer to my question, and I may say with all deference, that it is very unfortunate that he should express this view, as also the view he expressed on the 2nd December last, upon this same subject. I do not think, in the first place, that the correspondence that took place between Lord Aberdeen and Mr. Everett in 1845 can possibly bear out the extreme construction placed upon it, and the extreme claim founded upon it by the United States.

I also think that the treaty of 1908 between Great Britain and the United States made special provision for a settlement of matters in dispute, or on which there was any doubt, in regard to subjects1 of this kind. The minister himself, on the 27th of January, 1909, when this case was ..being settled, says he suggested that there should be an interchange of correspondence, and in that correspondence the reservation of . the rights of both parties and the contentions of both parties were made. It seems to me, under these circumstances, that it was clearly a subject which should have been arbitrated. If there were no rights there on the part of Great Britain and Canada, what rights were being reserved? If there were rights, why should they not have been arbitrated? But, Sir, the statement which the minister has made, which has gone on record, is unfortunate, because he has taken almost the extreme view that the United States has taken, and in future negotiations it will very seriously militate against this country. I am goinv to refer to the correspondence between Lord Aberdeen and Mr. Everett. The letter, to

-which reference was made by the Minister of Justice, was dated March 10, 1845, and the clause which has particular relation to the subject matteT now under discussion, and which is to be found at page .141 of the appendix to the British case, reads as follows:

The undersigned has accordingly much pleasure in announcing to Mr. Everett, the determination to which Her Majesty s government have come to relax

Observe the word, Mr. Speaker.

relax in favour of the United States fishermen, that right which Great Britain has hitherto exercised, of excluding those fishermen from the British portion of the Bay of Fundy, and they are prepared to direct their colonial authorities to allow, henceforward, to allow the United States fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach, except in the cases specified in the treaty of 1818, within three miles of the entrance of any hay on the coast of Nova Scotia or New Brunswick.

That was the offer of Lord Aberdeen to Mr. Everett, and it was an offer which clearly contained a condition. Here is the reply of Mr. Everett, or the important part of it, which will be found on page 142 of the same volume, under date of March 25, 1845. After acknowledging the receipt of Lord Aberdeen's letter, Mr. Everett goes on to say:

While he desires, however, without reserve, to express his sense of the amicable disposition evinced by Her Majesty's government on this occasion in relaxing in favour of the United States

Again observe the word, Mr. Speaker.

-the exercise of what, after deliberate reconsideration, fortified by high legal authority, is deemed an unquestioned right of Her Majesty's government, the undersigned would he unfaithful to his duty did he omit to remark to Lord Aberdeen that no arguments have at any time been adduced to shake the [DOT]confidence of the government of the United States in their own construction of the treaty.

At this point, just let me say that the [DOT]contention which the United States were putting forward then, which they always *thereafter put forward, and which they put forward at the hearing of this case before the Hague Tribunal-the same extreme contention with respect to bays, that was made *with respect to the Bay of Fundy in this -correspondence-was made on behalf of every other bay, when the matter came to he arbitrated in 1910 at the Hague. Mr. Everett's letter continues:

While they have ever been prepared to admit, that in the letter of one expression of that instrument there is some reason for claiming a right to exclude United States fishermen from the Bay of Fundy (it being Mr. JAMESON.

difficult to deny to that arm of the sea the name of ' bay ' which long geographical usage has assigned to it), they have ever strenuously maintained that it is only on heir own construction of the entire article that its known design in reference to the regulation of the fisheries admits of being carried into effect.

The undersigned does not make this obser vation for the sake of detracting from the liberality evinced by Her Majesty's government in relaxing

The word ' relaxing ' is again used

-from what they have regarded as their right: but would be placing his own government in a false position to accept as mere favour that for which they have so long and stienuonsly contended as due to them under the convention.

Here we have the conditional offer of Lord Aberdeen to Mr. Everett, spurned by the representative of the United States, who mid in effect: You are giving us nothing; you are merely offering to us what we already have, and therefore, we will not, on our part, meet the conditions which you have imposed. They did not permanently change anything by that correspondence, and no concession was ever made after that. It was a relaxation for a time only and conditional at that. There was a finality attached to it, and that finality was brought about by certain actions on the part of the government of Canada with the assent of the British authorities.

Now, I may say that there were several reasons in addition to the reason I have just given, why this should not be considered as more than a temporary relaxation. For instance, during the hearing of the Halifax Fishery Awa-rd Argument, it was declared by Mr. Thompson, in

arguing the case on behalf of Great Britain, that it was only a relaxation, and a temporary relaxation. The United States did not contend at that time, that this relaxation of Lord Aberdeen's gave them rights in the Bay of Fundy. They were then founding their alleged rights, not upon that chiefly but rather upon the award of Mr. Bates, in connection with the arbitration with reference to the Schooner ' Washington, an American vessel, which had been seized for fishing within what was then known as the three-mile limit in the Bay of Fundy, that is outside of the Grand Manan islands. The matter was referred to a tribunal of three, Mr. Bates being the umpire, and giving a decision adverse to Great Britain, and the sum of $3,000 damages was paid. The United States claimed under that chiefly, rather than under Lord Aberdeen's letter.

In 1870 the Hon. Peter Mitchell, then Minister of Marine and Fisheries, placed certain restrictions upon American fishermen with regard to the fishery regulations of this country, and Lord Grenville sent a despatch

to Mr. Mitchell in which he said that ' Her Majesty's government hopes that the United States fishermen will not, for the present, be prevented from fishing except within three miles of land or in bays which are less than six miles broad at the mouth.' So that on that occasion, there was a clear illustration of the view that the Canadian authorities held that this did not operate in any way as giving a permanent Tight to the Americans in that bay and the British authorities when they used the expression ' for the present ' regarded the relaxation of the enforcement of their exclusive rights in all bays more than six miles broad at the mouth, as being a temporary relaxation only.

Again in 1886 the parliament of Canada passed an Act respecting Foreign Fishing Vessels. That Act did not meet with the approval of our friends in the United States, and consequently an interchange of correspondence took place between Mr. Phelps, then representative of the United States at the Court of St. James, and .the Marquis of Salisbury. Here is an extract from a letter, dated January 25, 1887,

from Mr. Phelps to Lord Salisbury referring to this Act of 1886, which was passed by the parliament of Canada. Mr. Phelps says:

Since the receipt of Lord Iddesleigh's note, the United States government has learned with grave regret that Her Majesty's assent has been given to an Act of the parliament of Canada, passed at its late session, intituled: ' An Act further to amend the Act respecting Fishing by Foreign Vessels/ which has been the subject of observation in the previous correspondence on the subject between the government of the United States and of Great Biitain.

Mr. Phelps goes on to state:

It has been pointed out in my note to Lord Iddesleigh above mentioned that the three-mile limit referred to in this Act is claimed bv the Canadian government to include considerable portions of the high seas, such as the Bay of Fundy, the Bay of Chaleurs and similar waters, by drawing the line from headlands to headlands. And that American fishermen have been excluded from those waters accordingly.

So that there is no foundation for the assertion that since 1845, the date of the interchange of correspondence between Lord Aberdeen and Mr. Everett, the United States had the privilege of the fisheries in the Bay of Fundy without any objection on the part of Great Britain or Canada. I say that that citation which I have made-a citation from the letter of the representative of the United States at the Court of St. James-is the strongest evidence of the fact that the British and Canadian authorities considered that the

United States had no rights in these waters, and that when Her Majesty's assent was given the Act-and the assent of the Governor General of Canada was withheld pending the sanction by the imperial authorities of that Act-it is evident that the British authorities claimed that the Bay of Fundy was British territorial waters.

Now, Sir, to return again to the arbitra- [DOT] by the Hague Tribunal.

In April, 1909, a document was brought down in the imperial parliament which contained the special agreement entered into at Washington cn the 27th January, 1909, and embodied the correspondence between Mr. Bryce and Mr. Bacon of 6th February, 1909. There is nothing, however, in this document to indicate that any arrangement had been made to exclude the Bay of Fundy from the scope of the arbitration which was to be undertaken under this agreement.

Again in September, 1909, we find that another document was printed and presented to both houses of parliament in Great Britain. This contains the special agreement entered into on the 27th January, 1909, at Washington, and also two notes interchanged between Mr. Bryce and Mr. Bacon, who had succeeded Mr. Root as Secretary of State for the United States. The first is from Mr. Bryce to Mr. Bacon:

British Embassy,

Washington, March 4, 1909.

Sir,-I have the honour to acknowledge the receipt of your note informing me that the Senate of the United States has approved the special agreement for the reference to arbitration of the questions relating to the fisheries on the North Atlantic coast and of the terms of the resolution in which that approval was given.

It is now my duty to inform you that the government of His Britannic Majesty confirms the special agreement aforesaid, and in doing so confirms also the understanding arrived at by us that question 5 of the series of questions submitted for arbitration-namely, from where must be measured the ' 3 marine miles of any of the coasts, hays, creeks, or harbours ' referred to in the said article-is submitted in its present form with the agreed understanding that no question as to the Bay of Fundy, considered as a whole, apart from its hays or creeks, or as to innocent passage through the Gut of Canso, is included in this question as one to be raised in the present arbitration, it being the intention of the parties that their respective views or contentions on either subject shall be in no wise prejudiced by anything in the present arbitration.

This understanding is that which -was embodied in notes exchanged between your predecessor and myself on the 27th January, and is that expressed in the above-mentioned resolution of the Senate of the United States.

I have, &c.,

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JAMES BRYCE.


Here now we have the most extraordinary statement that, at the same time that the agreement was entered into, there was an ' understanding ' outside of that agreement which varied it and lessened the benefits of it, so far as Great Britain and Canada in particular are concerned. Let me read the reply: Department of State, Washington, March 4, 1909. Excellency: I have the honour to acknowledge the receipt of your note of the 4th instant, in which you confirm the understanding in the matter of the special agreement submitting to arbitration the differences between the governments of the United States and Great Britain concerning the North Atlantic fisheries, as expressed in the resolution of the Senate of the 16th of February, 1909, and as previously agreed upon by the interchange of notes with my predecessor of the 27th of January, 1909. I therefore have the honour to inform you that this government considers the special agreement as in full force and effect from and after the 4th day of March, 1909. I have, &c.,


March 2, 1911