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No. 87.-1845, April 23: Letter from Mr. Everett to Mr. Buchanan (United States Secretary of State).

[No. 305.]

LONDON, April 23, 1845. SIR: With my despatch, No. 278, of 25th March, I transmitted the note of Lord Aberdeen, of the 10th of March, communicating the important information that this government had come to the determination to concede to American fishermen the right of pursuing their occupation within the Bay of Fundy. It was left somewhat uncertain by Lord Aberdeen's note whether this concession was intended to be confined to the Bay of Fundy, or to extend to other portions of the coast of the Anglo-American possessions, to which the principles contended for by the government of the United States, equally apply, and particularly to the waters on the northeastern shores of Cape Breton, where the "Argus" was captured. In my notes of the 25th ultimo and 2d instant, on the subject of the "Washington" and the "Argus," I was careful to point out to Lord Aberdeen that all the reasons for admitting the right of Americans to fish in the Bay of Fundy, apply to those waters, and with superior force, inasmuch as they are less landlocked than the Bay of Fundy, and to express the hope that the concession was meant to extend to them, which there was some reason to think, from the mode in which Lord Aberdeen expressed himself, was the case.

I received last evening, the answer of his lordship, informing me that my two notes had been referred to the colonial office, and that a final reply could not be returned till he should be made acquainted with the result of that reference, and that, in the meantime, the concession must be understood to be limited to the Bay of Fundy.

The merits of the question are so clear that I cannot but anticipate that the decision of the colonial office will be in favour of the liberal construction of the convention. In the meantime I beg leave to suggest, that in any public notice which may be given that the Bay of Fundy is henceforth open to American fishermen, it should be carefully stated that the extension of the same privilege to the other great bays on the coasts of the Anglo-American dependencies, is a matter of negotiation between the two governments.

I am, sir, with great respect, your obedient servant,

JAMES BUCHANAN, Esq.

Secretary of State.

EDWARD EVERETT.

No. 88.-1845, May 19: Despatch from the Right Hon. Lord Stanley to the Right Hon. Viscount Falkland.

VISCOUNT Falkland.

No 225

DOWNING ST, 19th May/45.

MY LORD, H. M. Govt having frequently had before them the complaints of the Minister of the U. States in this country on account of the capture of vessels belonging to fishermen of the U. States by the provincial cruisers of N. Scotia & N. Brunswick for alleged

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infractions of the Convention of the 20th Oct 1818 between G. Britain & the U. States, I have to acquaint your Lordship that, after mature deliberation, H. M. Govt deem it advisable for the interests of both countries to relax the strict rule of exclusion exercised by G. Britain over the fishing vessels of the U. States entering the bays of the sea on the B. N. American coasts. H. M. Govt therefore henceforward propose to regard as bays, in the sense of the treaty, only those inlets of the sea which measure from headland to headland at their entrance the double of the distance of 3 miles, within which it will still be prohibited to the fishing vessels of the United States to approach the coast for the purpose of fishing. I transmit to your Lordship herewith the copy of a letter, together with its enclosures, which I have received from the Foreign Office upon this subject, from which you will learn the general views entertained by H. M. Govt as to the expediency of extending to the whole of the coasts of the British possessions in N. America, the same liberality with respect to U. States fishing boats as H. M. Govt have recently thought fit to apply to the Bay of Fundy; and I have to request that your Lordship would inform me whether you have any objections to offer, on provincial or other grounds, to the proposed relaxation of the construction of the Treaty of 1818 between this country and the U. States.

I have &c

STANLEY.

No. 89.-1845, June 16: Report from Attorney-General of Nova
Scotia to the Lieutenant-Governor enclosed in No. 91, Appendix,
p. 150.
HALIFAX 16th June 1845

MY LORD Agreeably to your Excellency's desire, I have the honour to report such suggestions as appear to arise from the despatch of the Right Hon Secretary of State for the Colonies, dated the 19th May last No. 225 and the correspondence accompanying it of the United States minister at London and Her Majesty's Government on the subject of the fisheries on the coasts of Her Majesty's North American provinces.

The concession of a right to fish in the Bay of Fundy has been followed by the anticipated consequence-the demand for more extended surrenders based upon what has been already gained; and it is to be feared that the relaxations now contemplated, if carried into effect, will practically amount to an unrestrained licence to the American fishermen:-When their right to fish within the larger bays or at the mouth of the smaller inlets, shall be established, the ease with which they may run into the shores whether to fish or for obtaining bait, or drawing off the schools of fish, or for smuggling, and escape before detection under any guards which it is within the means of the province to employ, will render very difficult the attempt to prevent violations of the remaining restrictionswhile in the case of seizures, the facilities for evasion and excuse, which experience has shown to be under any circumstances, ever ready, will be much enlarged-An instance has just occurred which illustrates this apprehension and the observations to the same effect contained in the report I had the honour to make your Excellency, on the 17th September last.

An American fisherman on the 5th of this month was seized in the Bay of Fundy at anchor, inside of the lighthouse at the entrance of Digby Gut about one quarter of a mile from the shore, with nets on deck still wet and with the scales of herrings attached to the meshes and having fresh herring on board.

The excuse sworn to is that rough weather had made a harbour necessary, that the nets were wet from being recently washed but that the fish were caught while the vessel was beyond three miles from the coast.

Hence will be extended and aggravated all the mischiefs to our fisheries from the means used by the Americans in fishing, as "by jigging," drawing seines across the mouth of the river and other expedients from their practice of drawing the schools from the shore by baiting and above all from their still more pernicious practice of throwing the garbage upon the fishing grounds and along the shore.

Every facility afforded the American fishermen to hold frequent, easy and comparatively safe intercourse with the shore, extends another evil, perhaps more serious in its results the illicit traffic carried on under cover of fishing in which not only the revenue is defrauded and the fair dealer discountenanced-but the coasts are filled with noxious or useless articles in exchange for the money or fish of the settlers in the remote harbours, among which may be mentioned the poisonous rum and gin and manufactured teas of which already too much is introduced into the country; and from this intercourse when habitual and established from year to year, the moral and political sentiments of our population cannot but sustain injury.

In the argument of the American minister, his Excellency appears to assume that the question turns on the force of the word "bay" and the peculiar expression of the treaty in connexion with that word.

But although it was obviously the clear intention of its framers, to keep the American fisherman at a distance of three marine miles, from the "bays, creeks, and harbours," there does not therefore arise any just reason to exclude the word "coasts," used in the same con

nexion in the treaty, from its legitimate force and meaning147 and if it be an admitted rule of general law, that the outline

of a coast is to be defined, not by its indentations, but by a line from its principal headlands, then waters altho' not known under the designation, nor having the general form of a bay, may yet be within the exclusion designed by the treaty.

His Excellency the American minister complains of "the essential injustice" of the law of this province under which the fisheries are attempted to be guarded, and declares that it, possesses none of the qualities of the law of civilized states but its forms."

His Excellency in using this language, possibly supposed the Colonial Act attempted to give a construction to the treaty of 1818, or originated the penalty and mode of confiscation, of which he so much complains. But had his Excellency examined the Act of this province he has so strongly stigmatized, he would have discovered that as regards the limits within which foreign fishermen are restricted from fishing, the Colonial Legislature has used but the words of the treaty itself-And a comparison of the Provincial Act with an Act of the Imperial Parliament the 59th Geo. 3: cap 38-will show that as regards the description of the offence; the confiscation

of the vessel and cargo, and the mode of proceeding, the Legislature of Nova Scotia has in effect only declared, what was already and still is, the law of the realm under Imperial enactments.

Mr. Everett adverts to what he considers "the extremely objectionable character of the course pursued by the provincial authorities in presuming to decide for themselves a question under discussion between the two Governments."

But it is submitted, that if the American Government controverted the construction given to the treaty, the course which made confiscation dependent on a judicial trial and decision, was neither presumptuous nor inexpedient, nor could the necessity of security for £60 or the risk of costs in case of failure, offer any serious impediment to the defence, in a matter which the Government of the United States deems of great national importance.-If on the other hand the American fisherman could only claim the relaxation of the treaty as construed in England and Nova Scotia, as matter of favour, the presumption would rather seem to lie on the side that insisted on exercising the privilege before the boon was conferred.

In any view of the matter as the American fisherman was never meddled with until he had voluntarily passed the controverted limit, it seems difficult to comprehend why the American minister's proposition might not stand reversed, with more propriety than it exhibits in its present form: For his Excellency's regrets might not unreasonably it would seem, have been expressed at "the extremely objectionable course pursued by American subjects in presuming to decide for themselves a question under discussion between the two Governments" by fishing upon the disputed grounds, and thereby reducing the provincial authorities to the necessity of vindicating their claim, or seeing it trampled on, before the sanction had been obtained either of legal decision or diplomatic arrangement.

When Mr. Everett says that the necessity of fostering the interests of their fishermen, rests on the highest grounds of national policy, he expresses the sentiment felt in Nova Scotia, as regards the provincial welfare in connexion with this subject:-The Americans are fortunate in seeing the principle carried into practice; for the encouragement afforded to their fishermen by the Government of the United States is not small, and its strenuous persevering and successful efforts to extend their fishing privileges on Her Majesty's coasts, but too practically evince its desire and ability to promote this element of national and individual prosperity. As far as I can learn a liberal tonnage bounty is given on their fishing craft, and a bounty per barrel on the pickled fish cured-thus guarding the fishermen against serious loss in case of the failure of his voyage-and he is, I believe, further favoured by privileges allowed on the importation of salt and other articles-while a market is secured him at home, which ensures him a profitable reward for the fruit of his labours, by a protecting duty of five shillings per quintal on dry fish, equal to fifty per cent of its value-and from two to one dollars per barrel on pickled fish, according to the different kinds, equal to at least 20 per cent of their values.

The duty on American fish imported into the colonies is much less-and the British colonial fisherman is unsustained by bounties-; but the chief drawback to his success is the want of certain and stable

markets; those on which he is chiefly dependent being very limited and fluctuating.

In the contrast therefore between the advantages of the colonial and American fishermen, the extensive home market of the latter independently of the encouragement he receives from bounties and other sources, much more than compensates, I believe for any local conveniences enjoyed by the former.

The colonists cannot understand the principle on which concession in any form should be granted to the American people, in a case avowedly touching, "the highest grounds of national policy" even although concession did not involve consequences, at [as] it unhappily does in the present case, both immediate and remote, most injurious to British colonial interests.

The strong and emphatic language of the treaty of 1818 is that "the United States renounce for ever, 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 or creeks, or harbours of His Britannic Majesty's dominions in America, not included within the above mentioned limits.-Provided however that the American fishermen, shall be admitted to enter such bays and harbours for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary, to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.-"

If this national contract does not exclude the Americans from fishing within the indentations of our coasts, and from our bays and harbours, then the people of Nova Scotia would not complain of their exercise of a right so acquired, while the treaty continued in force.

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But we believe it does exclude them-and we ask a judicial inquiry and determination before these valuable rights are relinquished. The highest law opinions in England have justified that belief.-Her Majesty's Government in theory avows and maintains it.

The compact was a reciprocal one and had the treaty in this particular been (as it was not) hard and unfavourable to the United States, there were doubtless to be found other portions of it at least equally unfriendly to British interests.

I repeat, my Lord, we cannot understand why the Americans should not be held to their bargain nor can we perceive the principle of justice or prudence which would relax its terms in favour of a foreign people whose means and advantages already preponderate so greatly; and that, without reciprocal concessions, and at the expense of Her Majesty's colonial subjects, whose prosperity is so deeply involved in the promotion and enlargement of this important element of their welfare.

If the present concessions to the United States are hoped to end and quiet the controversy between their fishermen and this province, there is too much reason to fear, the expectations will end in disappointment; and that increased and not diminished occasions of collision will be the result from the greater encouragement that will be afforded for violation of the treaty under the modified conditions. proposed to be imposed on the American fishermen, and the increased

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