No. 75.-1843, August 10: Letter from Mr. Everett (United States Minister at London) to Lord Aberdeen (British Foreign Secretary). 46 GROSVENOR PLACE, August 10, 1843. The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America, has the honour to transmit to the earl of Aberdeen, her Majesty's principal Secretary of State for foreign affairs, the accompanying papers relating to the seizure on the 10th of May last, on the coast of Nova Scotia, by an officer of the provincial customs, of the American fishing schooner Washington, of Newburyport, in the State of Massachusetts, for an alleged infraction of the stipulations of the convention of the 20th of October, 1818, between the United States and Great Britain. It appears from the deposition of William Bragg, a seaman on board the Washington, that at the time of her seizure she was not within ten miles of the coast of Nova Scotia. By the first article of the convention above alluded to, the United States renounce any liberty heretofore enjoyed or claimed by their inhabitants to take, dry, or cure fish on or within three marine miles of any of the coast of her Majesty's dominions in America, for which express provision is not made in the said article. This renunciation is the only limitation existing on the right of fishing upon the coasts of her Majesty's dominions in America, secured to the people of the United States by the third article of the treaty of 1783. The right, therefore, of fishing on any part of the coast of Nova Scotia, at a greater distance than three miles, is so plain that it would be difficult to conceive on what ground it could be drawn in question had not attempts been already made by the provincial authorities of her Majesty's colonies, to interfere with its exercise. These attempts have formed the subject of repeated complaints on the part of the government of the United States, as will appear from several notes addressed by the predecessor of the undersigned to Lord Palmerston. 131 From the construction attempted to be placed, on former occasions, upon the first article of the treaty of 1818, by the colonial authorities, the undersigned supposes that the "Washington" was seized because she was found fishing in the Bay of Fundy, and on the ground that the lines within which American vessels are forbidden to fish, are to run from headland to headland, and not to follow the shore. It is plain, however, that neither the words nor the spirit of the convention admits of any such construction; nor, it is believed, was it set up by the provincial authorities for several years after the negotiation of that instrument. A glance at the map will show Lord Aberdeen that there is, perhaps, no part of the great extent of the sea coasts of her Majesty's possessions in America, in which the right of an American vessel to fish can be subject to less doubt than that in which the "Washington" was seized. For a full statement of the nature of the complaints which have, from time to time, been made by the government of the United States against the proceedings of the colonial authorities of Great Britain, the undersigned invites the attention of Lord Aberdeen to a note of Mr. Stevenson, addressed to Lord Palmerston on the 27th March, 1841. The receipt of this note was acknowledged by Lord Palmerston on the 2d of April, and Mr. Stevenson was informed that the subject was referred by his lordship to the Secretary of State for the colonial department. On the 28th of the same month Mr. Stevenson was further informed by Lord Palmerston, that he had received a letter from the colonial department, acquainting his lordship that Mr. Stevenson's communication would be forwarded to Lord Falkland with instructions to inquire into the allegations contained therein, and to furnish a detailed report upon the subject. The undersigned does not find on the files of this legation any further communication from Lord Palmerston in reply to Mr. Stevenson's letter of the 27th March, 1841, and he believes that letter still remains unanswered. In reference to the case of the Washington and those of a similar nature which have formerly occurred, the undersigned cannot but remark upon the impropriety of the conduct of the colonial authorities in undertaking, without directions from her Majesty's government, to set up a new construction of a treaty between the United States and England, and in proceeding to act upon it by the forcible seizure of American vessels. Such a summary procedure could only be justified by a case of extreme necessity, and where some grave and impending mischief required to be averted without delay. To proceed to the capture of vessels of a friendly power for taking a few fish within limits alleged to be forbidden, although allowed by the express terms of the treaty, must be regarded as a very objectionable stretch of provincial authority. The case is obviously one for the consideration of the two governments, and in which no disturbance of a right exercised without question for fifty years from the treaty of 1783, ought to be attempted by any subordinate authority. Even her Majesty's government, the undersigned is convinced, would not proceed in such a case to violent measures of suppression, without some understanding with the government of the United States, or, in the failure of an attempt to come to an understanding, without due notice given of the course intended. to be pursued. upon The undersigned need not urge upon Lord Aberdeen the desirableness of an authoritative intervention on the part of her Majesty's government to put an end to the proceedings complained of. The President of the United States entertains a confident expectation of an early and equitable adjustment of the difficulties which have been now for so long time under the consideration of her Majesty's government. This expectation is the result of the President's reliance the sense of justice of her Majesty's government, and of the fact, that, from the year 1818, the date of the convention, until some years after the attempts of the provincial authorities to restrict the rights of American vessels by colonial legislation, a practical construction was given to the first article of the convention, in accordance with the obvious purport of its terms and settling its meaning as understood by the United States. The undersigned avails himself of this opportunity to tender to Lord Aberdeen the assurance of his distinguished consideration. EDWARD EVERETT. No. 76.-1843, October 17: Despatch from the Right Hon. Viscount Falkland to the Right Hon. Lord Stanley. No. 185. GOVERNMENT HOUSE HALIFAX. MY LORD, I have had the honour to receive your Lordship's Despatch, No. 132, enclosing the copy of a letter from Mr. Addington, covering the copy of a note from Mr. Everett, the American Minister in London, complaining of the seizure, in the month of May last, by an officer of the Provincial Custom House in Nova Scotia, of an American fishing schooner the "Washington" for an alleged infraction of the stipulations of the Convention of the 20th. of October 1818 between Great Britain and the United States, and desiring that I would make a full report of the circumstances attending the transaction. In obedience to your Lordship's commands, I herewith transmit a report of the Attorney General of Nova Scotia, (see paper 132 No. 1) explaining the grounds on which the above vessel was captured, and setting forth the reasons which induced me, in accordance with the advice of the Provincial Crown Officers, not to interfere to prevent her condemnation. I likewise forward (see paper No. 2) a copy of a Despatch, numbered 75, dated May 8. 1841, and addressed by me to Lord John Russell, on the occasion of the letter sent by Mr. Stevenson to Lord Polmerston on the 27th March 1841, (to which letter Mr. Everett alludes in his communication to your Lordship dated 10th August 1843) the perusal of which will apprise you of the footing on which matters stood with regard to American fishermen tresspassers on these coasts, up to that period, since which no reference has been made to the subject by either the British, or, in as far as I am aware, the American Government:-The House of Assembly of Nova Scotia however, anxious to set at rest by means of a legal determination a question likely to engender unpleasant feelings between Her Majesty's subjects of this province and their neighbours of the United States, have never ceased from their endeavours to obtain a judicial decision as to the interpretation to be given to the terms of the Convention of 1818: but unwilling to proceed with precipitation in a case in which some of the most important interests of this colony are involved, and in which therefore it was natural to suppose the judgments of the local authorities might be in some degree biased, the house requested that I would obtain; through your Lordship's predecessor the opinion of the Crown Officers of England as to the several points on which the Provincial Legislature and the citizens of the United States are at issue.-I, in consequence, begged, in my Despatch No. 69, dated 28th April 1841, that Lord John Russell would allow a case stated, and therewith forwarded, to be submitted to the Attorney and Solicitor General, which being done, your Lordship in your Despatch, No. 86, dated 28 November 1842, inclosed an opinion signed 'J. Dodson' and, Thomas Wilde,' directly confirmatory of the interpretation put on the words of the treaty by the Assembly; and on the capture of the Washington, the captor having an interest in the result, and being resolved to stand all the consequences of his acts, as he believed himself supported by the opinion above referred to, I, after consulting the Provincial Crown Officers decided on allowing 6 the law to take its course in the hope that the question might be adjudicated on and finally determined. It is worthy of remark that the American Government, or even any American citizen, can settle the point in dispute at any time, by appealing to the Courts of Law; but the trespassers on our fishing grounds prefer invoking the protection of their ambassador, and charging the provincial authorities with impropriety of conduct, which impropriety, if any exists, is, in the present instance at least, solely attributable to the reliance of those authorities on the opinion of the English Crown Officers.- Mr. Everett says "it is believed that no such construction as that now sought to be put on the terms of the Convention was set up by the provincial authorities for several years after the negotiation of that instrument." But his Excellency is mistaken on this point, as I have already shown, in the Despatch, No. 75, which accompanies this. Mr. Everett complains of "the harsh measure of proceeding to "the capture" of the vessels of a friendly power for taking a few fish within limits alleged to be forbidden, although allowed by the express terms of the treaty," thus assuming the point at issue, in contradiction to the judgment of Dr. Dodson, and Sir Thomas Wilde. In conclusion I deem it my duty, as the advocate of the interests of the province of Nova Scotia, to state to your Lordship in the most forcible terms that the cession of the right of fishery, to the extent claimed by the American Minister (that is to say within the headlands of the bays and harbours of Nova Scotia when those bays or harbours shall exceed three miles in depth) would, although apparently treated by his Excellency as a matter of small moment, be nearly destructive of a branch of commerce the prosperity of which is of the utmost importance to the welfare of this colony, and, that such a measure would be viewed with extreme apprehension by all classes of its inhabitants. I have the honour to be, my Lord, Your Lordship's most obedient humble servant The Lord STANLEY, FALKLAND: &c &c &c No. 77.-1844, April 15: Letter from Lord Aberdeen to Mr. Everett. FOREIGN OFFICE, April 15, 1844. The note which Mr. Everett, envoy extraordinary and minister plenipotentiary of the United States of America, addressed to the undersigned, her Majesty's principal Secretary of State for foreign affairs, on the 10th of August last, respecting the seizure of the American fishing vessel Washington by the officers of Nova Scotia, having been duly referred to the colonial office, and by that office to the governor of Nova Scotia, the undersigned has now the honor to communicate to Mr. Everett the result of those references. The complaint which Mr. Everett submits to her Majesty's government is that, contrary to the express stipulations of the convention concluded on the 20th of October, 1818, between Great Britain and the United States, an American fishing vessel was seized by 92909-S. Doc. 870, 61-3, vol 4-25 133 the British authorities for fishing in the Bay of Fundy, where Mr. Everett affirms that, by the treaty, American vessels have a right to fish, provided they are at a greater distance than three marine miles from the coast. Mr. Everett, in submitting this case, does not cite the words of the treaty, but states in general terms that, by the first article of said treaty the United States renounce any liberty heretofore enjoyed or claimed by their inhabitants to take, dry, or cure fish on or within three miles of any of the coasts of her Majesty's dominions in America. Upon reference, however, to the words of the treaty, it will be seen that American vessels have no right to fish, and indeed are expressly debarred from fishing in any bay on the coast of Nova Scotia. The words of the treaty of October, 1818, article 1, run thus: "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 abovementioned limits, [that is, Newfoundland, Labrador, and other parts separate from Nova Scotia :] pro,vided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter," &c. It is thus clearly provided that American fishermen shall not take fish within three marine miles of any bay of Nova Scotia, &c. If the treaty was intended to stipulate simply that American fishermen should not take fish within three miles of the coast of Nova Scotia, &c., there was no occasion for using the word "bay" at all. But the proviso at the end of the article shows that the word "bay" was used designedly; for it is expressly stated in that proviso, that under certain circumstances the American fisherman may enter bays, by which it is evidently meant that they may, under those circumstances, pass the sea-line which forms the entrance of the bay. The undersigned apprehends that this construction will be admitted by Mr. Everett. That the Washington was found fishing within the Bay of Fundy is, the undersigned believes, an admitted fact, and she was seized accordingly. The undersigned requests Mr. Everett to accept the assurances of his high consideration." EDWARD EVERETT, Esq. ABERDEEN. No. 78.-1844, May 25: Letter from Mr. Everett to Lord Aberdeen. GROSVENOR PLACE, May 25, 1844. The undersigned, Envoy Extraordinary and Minister Plenipotentiary of the United States of America, had the honor duly to receive the note of the 15th of April, addressed to him by the Earl of Aberdeen, her Majesty's principal Secretary of State for Foreign Affairs, in reply to the note of the undersigned of the 10th of August last, relative to the seizure of the American vessel, the Washington, for having been found fishing within the limits of the Bay of Fundy. The note of the undersigned, of the 10th of August last, although its immediate occasion was the seizure of the Washington, contained |