be no interference with the work of repairing the vessel were repeated to him, Mr. Allen, and the United States consular agent at Shelburne, both verbally and in writing, declared that the owner would not go on with the repairs and Mr. Allen used the expression that he would "throw her upon the customs." His refusal continued until the final relinquishment of all control by the collector. After that the repairs had to be done at a most unfavorable season for them and for continuing the navigation of the ship.

Some injury is alleged to have been done to the outfit or apparel of the vessel, but as to this it seems at present that the customs officer is able to show that no injury whatever was done to the property belonging to the vessel or the vessel itself while she was under the care of the watchman. These matters, however, are rather for tho authority or tribunal which may have to decide on the amount of compensation to be awarded if the principle be established that the owner of the vessel is entitled to compensation.

It is a preliminary point of some importance that neither Mr. Allen nor any other person connected with the vessel has made any application by petition of right to the Dominion Government, notwithstanding his assertions and those of the honorable Mr. Bayard to the contrary. If such a petition were presented it is not probable that a fiat would be refused. At the same time it must be stated that the Canadian law upon this subject is the same as that of England, and that it is not probable that a petition of right would be an available remedy for a tort such as the owner of the Bridgewater claims was committed with regard to that vessel. It by no means follows, however, from that circumstance that the owner is without redress in the courts of Canada. On the contrary, while the Crown (in right of Canada) is not liable for a wrong any more than the Crown is liable in the courts of Great Britain, any officer who commits a wrong against one of his fellow subjects, or against a foreigner, is liable to answer for that wrong in the coarts of justice in the ordinary way.

If the Bridgewater was properly liable to customs duty and properly seized, there can be no claim against the Dominion Government or against its officers. If she was improperly seized or improperly detained, the officer who seized and detained her is liable to compensate those whom he has injured by such illegal proceeding. On these points Mr. Allen has no doubt been well advised.

The United States consular agent at Shelburne, who is likewise understood to be his solicitor, is a member of the bar, thoroughly practiced in the law, and of the highest character and attainments. It appears from the documents which have been before the government that Mr. Allen was early advised that a petition of right would not be an available remedy and he therefore commenced an action for damages in the supreme court of Nova Scotia, against the collector of customs, for all the injuries caused by and resulting from the seizure.

The late Secretary of State of the United States has been incorrectly informed as to what has taken place with regard to this suit for damages. Being, of course, familiar with the rule, which has been invariably followed in his own Department, as appears by the diplomatic intercourse of that Department with other countries, that a claim can not be entertained as a matter of diplomatic negotiation if it may be the subject of redress in the courts of justice, he intimates "no recovery can be had in any court against any officer of the Crown," and that "it was finally ascertained that redress through the Canadian law courts or from the Canadian Government was not to be had."

He professes to base these statements on the official opinion of the minister of justice of Canada, conveyed, it is said, by the minister of customs, on the 24th of May, 1888.

There can be doubt that the honorable Mr. Bayard was informed by Mr. J. H. Allen to that effect. It appears by Mr. Allen's letter to Mr. Bayard, dated 19th January, 1889, that Mr. Allen made the statement that when the owner was in Ottawa he “made an application to the minister of customs for his permission to take the necessary steps (without which, so he was advised, no progress could be made), to the end that the cause could be tried in the Exchequer court, in which event the Government itself would be the actual defendant; but the application met with prompt and unequivocal_refusal."

The minister of customs has nothing to do with any such proceeding, and in this case his permission was not asked, nor was any refusal given by any person. Mr. Allen further states in that letter to Mr. Bayard that an action was commenced in Nova Scotia against the seizing officer, but that it was abandoned, as the Canadian authorities are well aware, on May 26, 1888, on receipt of the official letter of that date, stating that the claimant could not recover, etc.

The value of these statements will be presently seen, but it can not be regarded as otherwise than remarkable that Mr. Allen, regardless of the advice of his own counsel, should have abandoned his suit against the seizing officer on the mere opinion alleged to have been given by the minister of justice that he could not succeed.

Such a proceeding would have been remarkable if it had occurred, but the state

ment that it did occur and that the Canadian authorities are aware of it, is untrue. The minister of customs on the 24th of May, 1888, wrote a letter to Mr. Allen stating that he was in receipt, that day, of the opinion of the minister of justice as to the claim for damages, and that the minister of justice was of opinion that the claimant could not "recover against any officer of the Crown for damages sustained in consequence of the seizure." The opinion of the minister of justice, referred to in this connection, was conveyed in a letter, dated 22d May, 1888, from the deputy minister of justice, in which, irrespective altogether of the merits of the seizure, it was stated, according to the information then in the possession of the Department of Justice, that the action against the seizing officer had not been brought within three months of the time when the action had accrued, as required by section 47 of the customs act, and in which was stated the opinion that the claimant could not recover; that opinion being based solely on the information then in the possession of the Department. It was also stated in the letter of the deputy minister of justice that the propriety of insisting on this limitation was a question of policy to be decided by the minister of customs.

Mr. Allen being then in Ottawa, was informed by the deputy minister of justice of the reason on which the opinion was based, and he in reply informed the deputy of the minister of justice that the action against Collector Attwood had been commenced within the time limited by law, and on the 25th of May, 1888, the deputy minister of justice informed the minister of customs by letter that Mr. Allen had corrected the statement on which the opinion of the 23d May had been formed. Mr. Allen had then received and had shown to the deputy minister of justice a telegram from his own solicitor stating that the date on which the action had been brought was within the requirements of the law, and assuring him that the case could be tried in September, 1888. This was at the time when Mr. Allen asserts that the suit was discontinued and that the Canadian Government well knew of its discontinuance.

So far from it being true, therefore, that Mr. Allen was in any way induced by the answer of the minister of customs to discontinue his suit, he understood before leaving Ottawa that the opinion communicated to him had been formulated on an erroneons statement of dates and had therefore been withdrawn, and he had been advised by his own solicitor that the action was entered in due time and that it could be tried if he pleased in September of that year.

It is untrue that he discontinued the suit against the collector or that any intimation that he had done so or intended to do so was made to the Canadian Government. It is also a misrepresentation to state that he finally ascertained that redress through the Canadian law courts was not to be had. The suit has never been discontinued. It is still pending in the supreme court of Nova Scotia, and can be tried whenever the plaintiff cares to carry it on to trial.

At present the proceedings have been stayed until security for costs shall be given according to the law of the province in regard to suits by persons living out of the jurisdiction.

The Canadian Government therefore are of opinion that the owner of the Bridgewater is not now in a position to assert any claim against the Government of Canada, but must proceed with the suit for redress which has been begun against the seizing officer and which is still pending, notwithstanding the statements to the contrary contained in the letter of Mr. Allen to Mr. Bayard, and in the letter of Mr. Bayard to Mr. Phelps, which have been previously referred to. It has been already stated that in such an action the legality of the seizure could be tested and damages awarded in full compensation for any illegal act which the officer may have committed. For reasons which it is not now necessary to enter upon, any judgment which would be finally recovered against the seizing officer would be sure of being responded to, and it is by no means certain, even if the statutory limitation were to apply as to the date when the action was brought, or if it should stand as a bar to the recovery by the plaintiff on the merits of the case, that such an objection would be insisted on. It probably would not be insisted on, although there is probably no sufficient reason why such a statute should not be made available, and the rule has always prevailed in the United States, even in cases in which the Government of that country was immediately concerned, to insist on a statutory limitation even against foreign claimants as a complete bar to redress.

It will be time enough, however, to consider the question as to insistence on the limitation when it appears that that limitation is a bar to the decision of the claim of the owner of the Bridgewater on its merits. At the present moment that does not appear to be the case, and the documents made public show that Mr. Allen was not so advised. The suit pending in the supreme court of Nova Scotia having been some time ago stayed until security for costs should be given, according to the practice of the court, it is now in a position to be dismissed for want of prosecution, but the agent of the department of justice in Nova Scotia has been instructed not to ask for such dismissal until a reasonable time has elapsed after the transmission of this report for security to be given and for the case to be proceeded with.

The Government.of Canada are further of opinion that if Mr. Allen does not, after the United States authorities have been informed of their opinion and of the position of the suit at law, proceed with his action, application should be made to dismiss the suit, and no further application to the Government should be entertained; for the relinquishment of the suit, under all the circumstances, could only be regarded as a deliberate abandonment of the proper and legitimate mode of redress.

The delay which has occurred in bringing the suit to trial in face of the advice of Mr. Allen's own counsel that it might have been tried in September, 1888, is incapable of explanation on any other ground than that Mr. Allen was aware that he had incurred the expense and the loss consequent on the ship's delay by his own act only, and was unwilling to have the facts investigated, but preferred to make his claim the subject of diplomatic correspondence, in the hopes that he might thereby avoid an investigation of the facts on which his claim ought to depend.

No. 68.]

Mr. Wharton to Mr. Lincoln.

DEPARTMENT OF STATE,

Washington, August 26, 1889.

SIR: Referring to Mr. Bayard's instruction, No. 1089, to Mr. White, concerning the demand of this Government for certain reciprocal privileges for American vessels in Canadian ports, I now inclose herewith for your information a copy of a dispatch from our consul-general at Halifax, relative to a memorandum of the customs department of the Government of the Dominion of Canada, requiring a certificate from the shipping commissioner that captains of foreign vessels have complied with the provisions of section 32, chapter 74, of the Revised Statutes of Canada, 1886; and, also, calling attention to the discrimination in pilot dues made in the port of Halifax.

I also inclose for your information a copy of the letter from the Treasury Department, which is referred to in Mr. Bayard's instruction, No. 1089; and, also, of a communication from the same Department relative to the questions raised by Mr. Phelan's dispatch, No. 310. Copies will be sent you of any further correspondence which may be had with the Treasury Department.

In view of the fact that Her Majesty's Government has not answered the complaints contained in Mr. Bayard's instruction No. 1089, and of the new complaint as to pilot dues brought to notice by Mr. Phelan's dispatch, No. 310, you are instructed to press the subject upon the attention of Her Britannic Majesty's Government, with a view to having the matter properly adjusted between Her Majesty's Government and the Government of the United States.

I am, etc.,

WILLIAM F. WHARTON.

[Inclosure 1 in No. 68.]

Mr. Bayard to Mr. Fairchild.

DEPARTMENT OF STATE, Washington, February 15, 1889.

SIR: I have the honor to inclose herewith a copy of a dispatch, No. 173, of the 22d ultimo, from the United States consul at St. John, New Brunswick, in relation to the shipment of seamen on American vessels in that port.

As you are aware, the laws in the United States provide that all seamen shipped on board of American vessels in foreign ports shall sign articles before the United States consular officers there. This provision is enforced by appropriate penalties.

By the Canadian "Seamen's act" of 1886, the requirement that the shipment of crews of vessels in Canadian ports shall be before a Canadian shipping master is extended to foreign vessels, but there is a saving clause in favor of vessels belonging to countries between which and Great Britain there is a treaty exempting vessels of those countries from the operation of the law in question.

Whether under this clause or no, it is believed that it has not been the practice in Canadian ports generally, and certainly not in some of them, to require American vessels to ship seamen before Canadian shipping masters.

The Department was, however, recently informed that the consul at St. John had in some instances authenticated articles entered into and signed by masters and seamen of American vessels before the Canadian shipping master at that port, and that he had not required the seamen to be brought to the consulate to sign articles in the form and under the restrictions prescribed by our law. Thereupon the Department directed him to discontinue such practice, and to observe strictly the requirements of the United States Statutes.

Being so instructed, the consul, on a recent occasion, shipped seamen on an American vessel at his consulate, and when objection was made by the Canadian shipping master, informed him that in the future he should be obliged to ship seamen on Âmerican vessels himself, and to abstain from authenticating the Canadian articles.

This announcement called forth the letter from the shipping master to the consul of the 21st ultimo, herewith inclosed, in which the shipping master informs the consul that if hereafter seamen required for American vessels are not shipped in the former's office, he shall be obliged to take legal steps to enforce compliance with the Canadian act.

The Department contemplates bringing the subject to the attention of her Britannic Majesty's Government as being a matter of much importance affecting the internal discipline of vessels of the United States entering Canadian ports. But before taking this step, I should be glad to have the views of the Treasury Department on the subject, and a statement of what the law and practice are within the United States, with a view to ascertain how far, if at all, the laws of this country control or regulate the subject.

It is important that an early reply be sent to this communication.

I have, etc.,

[Inclosure 2 in No. 68.]

Mr. Fairchild to Mr. Bayard.

T. F. BAYARD.

TREASURY DEPARTMENT, February 25, 1889. SIR: I have the honor to acknowledge the receipt of your letter, dated the 15th instant, relative to the shipment of seamen on American vessels at St. John, New Brunswick.

It appears that the United States consul at St. John, in some instances, has authenticated articles entered into and signed by masters and seamen of American vessels before the Canadian shipping master at that place, and that on discontinuing such practice he was informed by the Canadian shipping master that if hereafter seamen required for an American vessel are not shipped in the shipping master's office the latter will be obliged to take legal steps to enforce compliance with the Canadian

act.

As a reply to your request for the views of this Department upon the subject, and for a statement of what the law and practice are within the United States, I have the honor to inform you that, while under a strict construction of the terms of sections 4511 and 4512, Revised Statutes, shipments on foreign vessels in the United States before United States shipping commissioners might be enforced, the law has never received such a construction, and shipments on such vessels have invariably been exempted from its operation, and allowed to be made before the foreign consular officer in accordance with the foreign regulations, on the ground that such action was demanded by international comity. This Department does not recall any instance at present, other than that above mentioned, in which a foreign government does not reciprocate by allowing our consular officers to take action as regards shipments in accordance with the instructions embodied in the Consular Regulations.

Should it be made satisfactorily to appear to this Department that the Canadian Government is an exception to this rule, and that it approves of the action of the shipping master at St. John, in not permitting the shipment of seamen upon American vessels to be made at that port before our consular officers, I shall deem it my duty to instruct the officers of this Department, charged with the execution of the laws of the United States upon the subject, to require that all shipments of seamen

upon British vessels in American ports shall be made before United States shipping commissioners, and not before foreign consular officers, as has been the practice heretofore.

The action of your Department in instructing the United States consul at St. John to discontinue the anthentication of articles signed before the Canadian officer accords with the views of this Department, which heartily approves the intention you express of bringing the matter to the attention of the British Government, and is strongly of the opinion that the present instructions of this Government upon the subject, as set forth in the Consular Regulations, should continue to be observed, as necessary to the interests of American shipping in foreign ports.

The United States courts take notice in analogous cases of foreign law, and, in exercising jurisdiction, administer relief by comity in accordance with the flag of the vessel.

(The Olga, 32 Fed. Rep., 330. The Brantford City, 29 Fed. Rep., 372. The John Ritsan, 35 Fed. Rep.)

Respectfully, etc.,

No. 310.]

UNITED STATES CONSULATE-GENERAL,
Halifax, Nova Scotia, June 15, 1889.

SIR: I have the honor to inclose herewith a circular just distributed to the collectors of customs instructing them to refuse clearance to foreign vessels unless the captains of such vessels shall produce a certificate from the shipping commissioner that such captain has complied with section 32, chapter 74, Revised Statutes of Canada, 1886.

Only a few weeks ago an order in council was issued to inspect the two American steam-ships of the Boston, Halifax and Prince Edward Island Steam-ship Company. We could not object to this as we compel foreign steamers in our ports to produce a certificate of inspection. Nor can we object to the rule requiring a certificate from the pilot commissioners showing that the pilotage was paid, because it is general and applies to all vessels alike. The new order applies only to foreign vessels, being especially directed to American vessels. It makes the captains of the two American steamers, which call here weekly, and which never have business with the shipping master, go to his office and obtain a certificate that the section of the law quoted has been complied with before they can get a clearance.

In this connection I would invite your attention to the discrimination in pilot dues in this port. American vessels of 80 tons and over are liable to pilotage, which is practically compulsory, while Canadian vessels are exempt up to 120 tons. The regulations for our ports should be so adjusted as to mete out exact justice to Canadian vessels by treating them as our vessels are treated in Canadian ports.

I am, etc.

[Inclosure 4 in No. 68.]

Circular to Canadian collectors of customs.

M. H. PHELAN.

MEMORANDUM.

CUSTOMS DEPARTMENT, Ottawa, June 1, 1889.

COLLECTOR OF CUSTOMS, Port of

'Shipping master's certificate."

The undersigned is instructed by the minister of customs to call your attention to section 32, chapter 74, Revised Statutes of Canada, 1886, and to inform you that he is advised that the provisions of said section apply to foreign vessels, including, of course, vessels of the United States, and you should, therefore, refuse clearance in all cases until "the shipping master's certificate to the effect that all requirements