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esty's Ministers, to withhold any concessions either on the ground of favour or of right until the points in question shall have received a full judicial investigation and decision.
In seeking the preservation of every right in favour of the colony and its trade and fisheries in a matter of so deep interest as that under consideration which the treaty of 1818, will legally sustain, the province is well warranted by the policy pursued by the American Government in protecting their own fisheries by the imposition of prohibitory duties which exclude the produce of the British fisheries from the extensive markets of the United States and give to the fisherman of that country an advantage more than commensurate with the benefits which the Nova Scotia fishermen derive from all the advantages they enjoy.
The mischiefs attendant on the interference of the Americans with the fisheries in the Bay of Fundy are so great and the fisheries are of so large importance and value to the inhabitants of that part of the province as to demand for the subject the fullest investigation, and lead to the hope that Her Majesty's Government will not yield to the claims of the American Minister until the case in all its bearings shall be fully exhibited and substantiated on the part of the people of these provinces, so deeply interested in its results.-The schools of fish enter the Bay of Fundy for the purpose of passing into the basin and river of Annapolis the basin of Mines and Colchester Bay and Chignecto Bay and other inlets at the head of the Bay of Fundy and the various rivers that fall into these basins and inlets. There the inhabitants follow the shore fishery and take herring alewives mackerel salmon and shad sometimes in quantities sufficient for considerable exportation but always, when the fisheries are not injured by foreign intrusion, to an extent most beneficial and necessary for their own consumption; and under regulations calculated to prevent the fish from being driven from their natural resort to the rivers.
The American fishermen on the contrary intercept and destroy or disperse the schools on their approach to the shores by means of seines of great size-sometimes hardly less than a mile in length managed between two vessels, or by means of gigging, as it is called, which is conducted by trailing lines with a multitude of hooks attache thro' the schools of fish by which many are captured but more are mangled and mutilated.
The consequence has been that the fish having been driven from their resort to the shores and inlets the fisheries have at times been nearly destroyed, and the foreign fisherman forced for want of success to discontinue his visits to the Bay. The effect has been seen in the revival of the fishery until again checked by the return of the former causes: and the diminished quantities now caught compared with what it is known the people were many years ago in the habit of taking, may be traced to the abiding effects of these causes.—
Besides this consideration it is worthy of continual remembrance in treating of this subject that the licensed introduction of the American fishermen into the Bay of Fundy is equivalent to his unlicensed but active and extensive intrusion on the coasts and in the basins and mouths of the rivers to take bait and fish; The one is the inevitable and the very injurious concomitant of the other. When the American fishermen shall be at liberty to enter the Bay of Fundy to fish, there will exist no means within the reach of the Provincial Government
or the people to watch and guard against his further intrusion and the concession sought by the American Minister may be considered practically as nearly equivalent to placing the whole fishery at the control of the American fishermen.
Last season notwithstanding the example made in the case of the Washington, vessels from the American lines ventured so far as 140 to enter the basin of Mines and with long seines swept the mouths of the rivers, and immediately completed their fares from the schools of fish that were entering.
The facts connected with the fisheries in the Bay of Fundy practically show that it is indeed well entitled, to be treated as a bay within the objects of the Treaty.—
The question then is, whether the claims of the foreign fisherman shall be permitted to prevail over the rights of Her Majesty's subjects as regards the fish passing thro a bay surrounded by Her Majesty's territory on their way to their accustomed and natural places of resort within that territory where they form a considerable element in the means of subsistence provided by Providence for its inhabitants.
On a subject of so much moment and viewed with so lively an interest by the people of this province Her Majesty's Government is humbly but most urgently besought to withhold the concession required by the American Minister. If the construction his Excellency has attempted to put on the Treaty shall be judicially decided to be correct it will be the duty of the colonies to submit.-If otherwise it is hoped a boon will not be conferred on foreigners to which they have no title and which they can only enjoy, as the people of this country believe, at the expense and to the deep and lasting injury of Her Majesty's loyal subjects.
Halifax Nova Scotia 17th. Septr. 1844
J. W. JOHNSTON
No. 82.-1844, October 9: Letter from Mr. Everett to the Earl of Aberdeen.
GROSVENOR PLACE, October 9, 1844.
The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America, has the honor to transmit to the Earl of Aberdeen, Her Majesty's principal Secretary of State for foreign affairs, the accompanying papers relating to the capture of an American fishing vessel the "Argus," by a government cutter from Halifax, the "Sylph," on the 6th of July last.
In addition to the seizure of the vessel, her late commander, as Lord Aberdeen will perceive from his deposition, complains of harsh treatment on the part of the captors.
The grounds assigned for the capture of this vessel are not stated. with great distinctness. They appear to be connected partly by the construction set up by Her Majesty's provincial authorities in America, that the line within which vessels of the United States are forbidden to fish, is to be drawn from headland to headland, and not to
follow the indentations of the coast, and partly with the regulations established by those authorities, in consequence of the annexation of Cape Breton to Nova Scotia.
With respect to the former point, the undersigned deems it unnecessary, on this occasion, to add anything to the observations contained in his note to Lord Aberdeen. of the 25th of May, on the subject of limitations of the right secured to American fishing vessels by the treaty of 1783 and the convention of 1818, in reply to the note of his lordship of the 15th of April on the same subject. As far as the capture of the Argus was made under the authority of the Act annexing Cape Breton to Nova Scotia, the undersigned would observe that he is under the impression that the question of the legality of that measure is still pending before the judicial committee of her Majesty's privy council. It would be very doubtful whether rights secured to American vessels under public compacts could, under any circumstances, be impaired by acts of subsequent domestic legislation; but to proceed to capture American vessels, in virtue of such acts, while their legality is drawn in question by the home Government, seems to be a measure as unjust as it is harsh.
Without enlarging on these views of the subject, the undersigned would invite the attention of the Earl of Aberdeen to the severity and injustice which in other respects characterise the laws and regulations adopted by her Majesty's provincial authorities against the fishing vessels of the United States. Some of the provisions of the provincial law, in reference to the seizures which it authorizes of American vessels, were pronounced, in a note of Mr. Stevenson to Viscount Palmerston of the 27th of March, 1841, to be "violations of well-established principles of the common law of England, and of the principles of the just laws of well civilized nations;" and this strong language was used by Mr. Stevenson under the express instructions of his government.
A demand of security to defend the suit from persons so little able to furnish it as the captains of small fishing schooners, and so heavy that, in the language of the Consul at Halifax, “it is generally better to let the suit go by default," must be regarded as a provision of this description. Others still more oppressive are pointed out in Mr. Stevenson's note above referred to, in reference to which the undersigned finds himself obliged to repeat the remark made in his note to Lord Aberdeen of the 10th of August, 1843, that he believes it still remains unanswered.
It is stated by the captain of the "Argus" that the commander of the Nova Scotia schooner by which he was captured said that he was within three miles of the line beyond which, on 141 their construction of the treaty, we were a lawful prize, and
that he seized us to settle the question."
The undersigned again feels it his duty, on behalf of his government, formally to protest against an act of this description. American vessels of trifling size, and pursuing a branch of industry of the most harmless description which, however beneficial to themselves, occasions no detriment to others, instead of being turned off the debatable fishing ground-a remedy fully adequate to the alleged evil-are proceeded against as if engaged in the most undoubtful infractions of municipal law or the law of nations; captured and sent into port, their crews deprived of their clothing and personal
effects, and the vessels subjected to a mode of procedure in the courts which amounts in many cases to confiscation; and this is done to settle the construction of a treaty.
A course so violent and unnecessarily harsh would be regarded by any government as a just cause of complaint against any other with whom it might differ in the construction of a national compact. But when it is considered that these are the acts of a provincial government, with whom that of the United States has and can have no intercourse, and that they continue and are repeated while the United States and Great Britain, the only parties to the treaty the purport of whose provisions is called in question, are amicably discussing the matter, with every wish, on both sides, to bring it to a reasonable settlement, Lord Aberdeen will perceive that it becomes a subject of complaint of the most serious kind.
As such, the undersigned is instructed again to bring it to Lord Aberdeen's notice, and to express the confident hope that such measures of redress as the urgency of the case requires will, at the instance of his lordship, be promptly resorted to.
The undersigned avails himself of this opportunity to renew to the Earl of Aberdeen the assurance of his distinguished consideration. EDWARD EVERETT.
The EARL OF ABERDEEN, &c., &c., &c.
No. 83.-1845, March 10: Letter from Lord Aberdeen to Mr. Everett. FOREIGN OFFICE, March 10, 1845.
The undersigned, her Majesty's principal Secretary of State for Foreign Affairs, duly referred to the Colonial Department the note which Mr. Everett, Envoy Extraordinary and Minister Plenipotentiary of the United States of America, did him the honor to address to him on the 25th of May last, respecting the case of the "Washington," fishing vessel, and on the general question of the right of the United States fishermen to pursue their calling in the Bay of Fundy; and having shortly since received the answer of that department, the undersigned is now enabled to make a reply to Mr. Everett's communication, which he trusts will be found satisfactory.
In acquitting himself of this duty, the undersigned will not think it necessary to enter into a lengthened argument in reply to the observations which have at different times been submitted to her Majesty's government by Mr. Stevenson and Mr. Everett, on the subject of the right of fishing in the Bay of Fundy, as claimed in behalf of the United States citizens. The undersigned will confine himself to stating that after the most deliberate reconsideration of the subject, and with every desire to do full justice to the United States, and to view the claims put forward on behalf of United States' citizens in the most favorable light, her Majesty's government are nevertheless still constrained to deny the right of United States' citizens, under the treaty of 1818, to fish in that part of the Bay of Fundy which, from its geographical position, may properly be considered as included within the British possessions.
Her Majesty's government must still maintain, and in this view they are fortified by high legal authority, that the Bay of Fundy is rightfully claimed by Great Britain as a Bay within the meaning of
the treaty of 1818. And they equally mantain the position which was laid down in the note of the undersigned, dated the 15th of April last, that, with regard to the other bays on the British American coasts, no United States' fisherman has, under that convention, the right to fish within three miles of the entrance of such bays as designated by a line drawn from headland to headland at that entrance.
But while her Majesty's government still feel themselves bound to maintain these positions as a matter of right, they are nevertheless not insensible to the advantages which would accrue to both countries from a relaxation of the exercise of that right; to the United States as conferring a material benefit on their fishing trade; and to Great Britain and the United States, conjointly and equally, by the removal of a fertile source of disagreement between them.
Her Majesty's government are also anxious, at the same time that they uphold the just claims of the British crown, to evince by every reasonable concession their desire to act liberally and amicably towards the United States.
The undersigned has accordingly much pleasure in announcing to Mr. Everett, the determination to which her Majesty's government have come to relax in favor 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 the United States fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach, except in the 142 cases specified in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New
In thus communicating to Mr. Everett the liberal intentions of her Majesty's government, the undersigned desires to call Mr. Everett's attention to the fact that the produce of the labor of the British colonial fishermen is at the present moment excluded by prohibitory duties on the part of the United States from the markets of that country; and the undersigned would submit to Mr. Everett that the moment at which the British government are making a liberal concession to United States' trade, might well be deemed favorable for a counter concession on the part of the United States to British trade, by the reduction of the duties which operate so prejudicially to the interests of the British colonial fishermen.
The undersigned has the honor to renew to Mr. Everett, the assurances of his high consideration.
No. 84.-1845, March 25: Extract from Letter from Mr. Everett to Mr. Calhoun. [No. 278.]
LONDON, March 25, 1845.
SIR: You are aware that the construction of the first article of the convention between Great Britain and the United States, of 1818, relative to the right of fishing in the waters of the Anglo-American dependencies, has long been in discussion between the two governments. Instructions on this subject were several times addressed by Mr. Forsyth to my predecessor, particularly in a despatch of the 20th
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