to Nova Scotia, and might in fairness be granted, other members of the board, among whom is the Attorney General, entertain a strong opinion to the contrary.— When however I perceive that Mr. Everett, in his note of the 25th May 1844, addressed to Lord Aberdeen admits that (in estimating the distance of three miles from the shore within which American fishermen are not permitted to approach) it is "the intent of the treaty, as it is in itself reasonable to have regard to the general line of the coast and to consider its bays creeks and harbours, that is the indentations so accounted, as included within that line," which I take to be an acquiescence in the opinion of Messrs Dodson and Wilde, that the distance within which American fishermen must not approach is three miles from a line drawn from headland to headland, taking the general configuration of the coast; I cannot but conceive that a geat portion of what I have contended for, (in my despatch No 75, date May 8th 1841, addressed to Lord John Russell) on the part of the province, is conceded, and it is therefore my unreserved opinion, provided always that this interpretation of Mr. Everett's phraseology be correct, that that which is now asked by the Americans may be granted, without evil consequences, if due care be taken that no further pretensions can hereafter be founded on the concession. The difficulties to be apprehended in future, if the arguments of the American minister are yielded to on the present occasion, are embodied in a paper which I enclose drawn up by the Attorney General, to which I beg very earnestly that your Lordship and Lord Aberdeen will direct your particular attention. I regret much that the course which I view as unobjectionable, in this matter will not be so regarded by the provincial Legislature, and I feel very sensibly that while the Americans seek for every adventage to be obtained by exercising the rights of fishery on the coasts of Nova Scotia, the produce of the labour of the provincial fisherman is excluded from the markets of the United States by prohibitive duties. This consideration induces me to submit to your Lordship whether an opportunity of strongly urging on the Government of the United States the immediate diminution of these duties is not afforded by the present negotiation. I have the honour to be, my Lord, your Lordship's most obedient, humble servant, The Right Honble The LORD STANLEY 137 &c &c &c FALKLAND: No. 81.-1844, September 17: Memorandum by the Attorney Memorandum on the Seizure of the American schooner Washington for fishing in the Bay of Fundy and on the Questions raised in the American Minister's Note of 25th May 1844 vindicating the Right of American Subjects to fish in that Bay. His Excellency the American minister considers the Bay of Fundy as not included in the term "bays" in the treaty entered into at London on the 20th October 1818, because of its size and situation,of its containing other bays and harbours within it, and because if excluded from it American vessels could not use for shelter &c. those other bays, and harbours. Had the treaty of 1818 used only the word "coasts" it is presumed it would under general international law have excluded approach within three miles of any line to be drawn from the headlands of the coast;-not the outer points of each harbour and inlet-but the extremities of the coast in its main features and general configuration. The treaty was however, specific, and excluded bays creeks and harbours by name, probably to prevent dispute as the treaty of 1783 had used these words in conjunction with the word "coasts" in defining the privilege then granted. Under the word "coasts" and still more emphatically under the term "bays" it is conceived the American fishermen are excluded from the Bay of Fundy. The American minister has failed to advert to the fact that the Bay of Fundy after entering Her Majesty's possessions, is encircled and enclosed therein and terminates in the heart of the country. If the term coasts in international law embraces a large expanse of water stretching into and forming one with the Atlantic ocean, and which every passing ship may find occasion to use as part of the highway of nations and defined only by an imaginary line drawn from two far separated promontories or headlands, it is not a little difficult to exclude from its import an inlet of water, tho' considerable in size, confined and situated as the Bay of Fundy is. If, however the term "coasts" did not operate to exclude the American fishermen from the Bay of Fundy, the word "bays" used in the treaty it is conceived must, if any language can do so short of an identical designation by name. For there is not only nothing in the size or situation of these waters to exclude them from the distinctive term "bay," but no other general term could be used with equal, or with any propriety.— The alterations in the stipulations of the two treaties, reasoned upon by the American minister, had it is believed not the limited cause or end which his Excellency has suggested-namely, to avoid disputes which had arisen under the former treaty as to what should be esteemed unsettled portions of Her Majesty's North American provinces. The treaty of '83 gives permission to fish on the coasts of Nova Scotia without reference to their settlement or non settlement. The distinction regarding the settlement of the country applied only to the privilege of curing fish on the shores, and any disputes arising from this cause would have been prevented by withdrawing this latter privilege alone; but the treaty of 1818 went further and withdrew the privilege of fishing also, about which no such dispute existed or could arise. The occasion and object of the treaty in this particular therefore was much more extensive than his Excellency has supposed. We must believe it was designed to give to the inhabitants of these British North American provinces the exclusive right to take the fish which entered their waters over which the British Crown could exercise control; Hence the restriction within three marine miles, the limit of British authority. This obiect would be better advanced by including the Bay of Fundy within the prohibition than most of the bays besides, about which no dispute is now raised.- The Bay of Fundy being completely interterritorial, and receiving the fresh water from a large portion of both provinces was an obvious appendage of the territory surrounding it; and would naturally be deemed the inheritance of its inhabitants while it furnished the congenial resort for the most valuable sorts of fish: whereas such bays as open into the ocean in a more broad and expansive manner would afford less appearance of exclusive property and be of less value as fishing ground. As a large portion of the reasoning in his Excellency's note is drawn from the assertion that a succession of bays indent the shores of the Bay of Fundy, it may, in passing, be not inexpedient to observe that, as the mode in which the distance across the Bay of Fundy is spoken of is calculated to convey an exaggerated notion of its general width, so the description of the configuration of its shores is not appropriate. So far from those shores being indented by a succession of bays, there are exceedingly few indentations approaching to this character, or having the attributes of a harbour between the Gut of Annapolis on the Nova Scotia side, and St. John Harbour on the New Brunswick shore, and the termination of the bay in the channel and basin of Mines on one side and in Chignecto Bay on the other. His Excellency argues largely on the assumption that "the vessels of the United States have a general right to approach all the bay's in Her Majesty's colonial dominions within any distance not less than three miles," and thence concludes that the Bay of Fundy is 138 not a bay from which they are excluded by the treaty, because such exclusion would prevent their approaching within three miles of the bays within its limits. This argument if correct would prove a great deal, because it applies equally to other bays and harbours: For instance, Bedford Basin lying above the harbour of Halifax is unquestionably a bay or harbour within the terms of the treaty.-The American fishermen it is said has a right to approach all our bays within three miles, and the treaty puts bays and harbours on the same footing-therefore it would follow he has a right to approach within three miles of Bedford Basin and consequently to fish within Chebucto Head and the mouth of Halifax Harbour, keeping, as he may, more than three miles distant from any shore or from the basin. This argument however it is believed inverts the case. The American fisherman is excluded by the formal agreement of his own Government from fishing within three miles of any of the coasts, bays &c. of Her Majesty's dominions in America not excepted in the treaty; and he has no such privilege affirmatively granted as the argument assumes. The sole question seems very evidently to be whether the Bay of Fundy be within the meaning of the treaty and there appears no reason for assuming that the determination of it can be affected by the fact that it contains interior bays or harbours. The concluding argument of the American minister and one which he declares puts the matter beyond doubt, is that as the American fisherman has the privilege reserved of seeking shelter &c: in the bays and harbours from which he is excluded for the purposes of fishing: and the Bay of Fundy not affording the accommodations designated in the treaty, it follows, that this bay is not one from which he is excluded-in other words, that the American fisherman may fish in any bay which does not afford him shelter from storms, and accommodation for repairing damage, and procuring wood and water. This argument seems inconsistent with the ordinary and acknowledged rules of construction; The portion of the treaty under consideration was not made for the purpose of granting the privilege of shelter &c. to American fishermen; Its primary object was to exclude them from fishing in certain parts of Her Majesty's North American dominions; The proviso guards against this exclusion being extended to another and different object.-the privilege of shelter &c; and was intended to protect this privilege just as far as the clause of exclusion might have been liable to affect it, but not to limit the subject matter itself of the exclusion. The construction seems simply to be that in distress the fisherman may use any of the bays in Her Majesty's possessions according to his necessity, and their capacity of relief. This argument also appears to prove too much.— The majority of our bays are in themselves as little adapted as the Bay of Fundy for shelter or repairing damages &c. If the argument is good at all it is applicable to those bays as well as to the Bay of Fundy: But this would lead to incongruity in the application of the treaty. For as this construction of the American minister depends on a strained meaning put upon the word "such" in the proviso, if this mode of interpretation should be pursued with a like verbal severity, bays, not affording accommodation for shelter &c. being mentioned in the proviso would not be included in the American relinquishment of claim to fish, but "coasts" not being mentioned in the proviso would be included; And thus those bays may be used for the purposes of fishing at the distance of three miles from the shores (and it is doubtful whether the argument would not over ride even this limitation) when the adjacent open sea board is protected against American fishing. His Excellency complains that exclusion from the Bay of Fundy keeps the American fishermen at such a distance from the harbours within it as prevents their use of them for shelter in time of necessity. But if the Bay of Fundy be within the relinquishments by Americans the fisherman is not privileged to pursue his occupation within it, and has nothing to fear from its "iron bound coasts" or to depend upon from its harbours. The storm finds him on other shores in the vicinity of other harbours. So far from the construction contended for by the British Colonial Authorities leading as is alleged to two entirely different limitations in reference to the right of shelter, it alone gives, as it is humbly conceived, perfect uniformity and consistency in the interpretation alike of the relinquishment and the reservation. The American Minister condemns, as his predecessor in yet stronger language did, the conduct of the colonial authorities in enforcing their construction of the treaty by the capture of an American fisherman, and places in contrast the forbearance of the United States, by which, as his Excellency says, no disposition had been evinced to an ticipate the decision of the question under negotiation between the two countries: But seeing that the American fisherman was permitted to carry into practical effect the construction of the treaty favourable to his own interest by fishing in the Bay of Fundy the colonial authorities have not been able to discover on the part of the United States that forbearance which challenges the commendation of his Excellency, nor the exercise of a reciprocity with which the province was called to be content. Before acting on their own view of the subject the Provincial Assembly obtained 'ro' Her Majesty's Government the favourable opinion of the first law officers of the Crown on the general question on a case in which the Bay of Fundy was specially stated to be one of the bays in which American subjects conducted the fishery regarding which their opinion was sought.— The treaty sanctioned rights in which the inhabitants of this colony are deeply interested; The Imperial Statute 59. Geo. 3 chap. 33. 139 and the Colonial Act 6. Wm. 4 chap. 8. specially confirmed by His late Majesty, directed the mode in which these rights were to be guarded from invasion. In seizing the Washington and bringing her to adjudication the seizing officers but sought the decision of a competent legal tribunal having jurisdiction over the cause on her liability to forfeiture. The ability and integrity of the Judge who presides in the Vice Admiralty Court at Halifax offered sufficient security for a sound and impartial judgment and an appeal to the highest appellate court in the realm afforded the means of the fullest investigation and the most authoritative determination. It has been occasion of regret that the Government of the United States in a matter of so much importance had not seen it fit to meet the question in a mode that would have insured the most perfect consideration of the argument on both sides. and the decision of a tribunal having constitutional authority to adjudicate upon and determine the questions raised. In conclusion it is humbly urged upon the consideration of Her Majesty's Government that the Bay of Fundy furnishes very valuable and productive fisheries of herring, mackerel and shad as well as cod and Her Majesty's Government cannot appreciate too highly the importance and value set by the Legislature and people of Nova Scotia upon the exclusion of American fishermen from the fisheries in the Bay of Fundy. Any concession on this pount would be viewed with feelings of deep regret and disappointment in this colony-heightened by the consideration that the arguments urged by the American minister altho' now confined to the fisheries in the Bay of Fundy are calculated to be pressed to consequences yet more extended; and little hope will be entertained, should they be allowed to be successful now, but that as occasion may offer these arguments will be renewed and directed to other attacks upon the system under which the fisheries of this province can only be protected from injury by the American fishermen.It is conceived that the American Government has little claim at present to urge their construction of the treaty as being sound and correct in law, from having failed to sanction and use the opportunity of competent legal investigation and decision, afforded by this province; and that the colony may with propriety solicit from Her Maj |