hitherto been exercised under the Reciprocity Treaty. It does not, therefore, call for much observation. It is only requisite to say that although the privilege of drying and curing fish on the Magdalen Islands is not expressly given to American fishermen, Her Majesty's Government have no desire at present to exclude them from it, nor to impose any narrow construction on the word "unsettled." A bay containing a few isolated houses is not to be considered as "settled for the purpose of this clause of the Convention. " On the other hand, naval officers should be aware that Americans. who exercise their right of fishing in Colonial waters in common with subjects of Her Majesty, are also bound, in common with those subjects, to obey the law of the country, including such Colonial laws as have been passed to insure the peaceable and profitable enjoyment of the fisheries by all persons entitled thereto. The enforcement of the Colonial laws must be left, as far as the exercise of rights on shore is concerned, to the Colonial authorities, by whom Her Majesty's Government desire they shall be enforced with great forebearance, especially during the present season. In all cases they must be enforced with much forbearance and consideration, and they must not be enforced at all by Imperial officers if they appear calculated to place the Americans at a disadvantage in comparison with British fishermen in the waters which, by the Treaty of 1818, are opened to vessels of the United States. On the contrary, their unequal operation should, in this case, be reported to their Lordships, a copy of the report being at the same time sent to the Governor of the Colony. II. Fuller explanation is necessary respecting that part of the Convention by which the United States renounce the right of fishing, except within the permitted limits "on or within three miles of any of the coasts, bays, creeks, or harbours" of British North America, and are forbidden to enter such bays or harbours, except for certain defined purposes. The Act of Parliament (59 Geo. III, cap. 38), already mentioned, subjects to forfeiture any foreign vessel which is found ery of the Vessel seized, "to the officer of the Colonial Revenue next to the place where seized," prosecute under this Act. C. When prosecuting as above directed, avail yourself of the procedure authorised by the 103rd Clause of the Merchant Shipping Act. An extract of a letter from the Under Secretary of State for the Colonies descriptive of the mode in which the combination of these two Acts is rendered effective for the purposes of prosecution is given herewith. See Extract from Colonial Office letter of 23rd June, 1866. D. This will enable you to send the vessel for adjudication to any Admiralty Court, and consequently to that situated in the Port most convenient to you, i. e. a Vessel seized in Nova Scotian waters could be sent to Charlotte Town, Prince Edward Island for condemnation, and so of all the other Provinces respectively. E. You may prosecute under the Colonial Acts when it will not be inconvenient to you, to adhere strictly to the Clause directing the delivery of the Vessel seized to the Revenue Officer next to the place where seized, but in no other case. fishing, or having fished, or preparing to fish, within the prohibited limits, and authorizes the enforcement of this forfeiture by the like means and in the same Courts as may be resorted to under any Act of Parliament in the case of any offence against the laws relating to Customs, or the laws of trade and navigation. The statutory mode of enforcing the law against Customs' offences committed in the Colonies will be found in the Act 16 and 17 Vict., cap. 107, and particularly in the 2nd, 183rd, 186th, and 223rd clauses. But as it would probably be held under this Act that a vessel could only be seized safely by a naval officer "duly employed for the prevention of smuggling" (section 233), it will be probably more convenient for naval officers to take advantage of the procedure authorized by the 103rd clause of the Merchant Shipping Act, which is a law relating to "trade and navigation." Under that clause (of which a copy is annexed) any commissioned officer on full pay in the military or naval service of Her Majesty may seize any ship subject to forfeiture, and bring her for adjudication before any Court having Admiralty jurisdiction in Her Majesty's dominions. It will probably be advisable, as a general rule, that officers of the navy should proceed against vessels engaged in unlawful fishing under the Act of Geo. III and the Merchant Shipping Act, which extends to all the closed waters of British North America, and do not require the officer's authority to be fortified by any Colonial commission or appointment. But more extended powers are conferred by the above-mentioned local Acts of Nova Scotia, @ 17 and 18 Vict.. c. 104, s. 103. F. You will observe that the Colonial Acts prescribe the delivery of Vessels which are seized "to the Officers of the Colonial Revenue next to the place where seized," and further prescribe the Court in which the forfeiture shall be prosecuted. In all cases in which delay would ensue from delivering the Vessel over as above directed, you are to send the Vessel direct to the Port where the Court exists, in which the Vessel seized is to be prosecuted, and there to deliver her over to the Revenue Officers. New Brunswick, and Prince Edward Island, on persons commissioned by the Lieutenant-Governors of these Colonies, and any officer who is permanently charged with the protection of the fisheries in the waters of any of these Colonies may find it useful to obtain such a commission. It will invest him with special authority in the waters of the Colony to which it relates, to bring into port any foreign vessel which continues within these waters for twenty-four hours after notice to quit them, and, in case she shall have been engaged in fishing, to prosecute her to condemnation. It will also enable him to prosecute the forfeiture of the vessel, if it shall be found to have prohibited goods on board. But this power it would be undesirable to exercise, as Her Majesty's Government do not at present desire officers of the navy to concern themselves with the prevention of smuggling. These being the powers legally exercisable by officers of Her Majesty's navy, it follows to consider within what limits and under what conditions they should be exercised. Her Majesty's Government are clearly of opinion, that by the Convention of 1818, the United States have renounced the right of fishing, not only within three miles of the Colonial Shores, but within three miles of a line drawn across the mouth of any British bay or creek. But the question what is a British bay or creek is one that has been the occasion of difficulty in former times. It is, therefore, at present the wish of Her Majesty's Government neither to concede, nor, for the present, to enforce, any rights in this respect which are in their nature open to any serious question. Even before the conclusion of the Reciprocity Treaty, You are to give every vessel warning only on one separate occasion of finding her in the act of fishing within the prohibited limits, after which, should you find the same Vessel committing a trespass for the second time, and are satisfied that the neglect of your warning is wilful and persevering, you are to seize her and send her into Port for condemnation. (See also Art. 7 of the Instructions) In all such cases, you are to be careful that the Vessel seized is within three miles of the land, her position being determined by bearings taken in such a mode as will admit of their accuracy be ing sworn to in Court by three competent witnesses; and you are to have the same amount of evidence of the commission of the offence, whether that be of having fished, of fishing, or of preparing to fish, observing as regards this last offence, the evidence must be very conclusive to ensure condemnation. In the event of making a seizure, you are, when practicable, to tow the Vessel into Port, being careful in all cases to remove her Crew with the exception of the Master, observing that when in tow her Colours are not to be hoisted. Should you not take the Vessel into Port yourself, her Crew are to be landed at the nearest Port where there is an American Consul. H. By "substantial invasion of British rights," you are to understand such proceedings as are detrimental to the British fishermen in the prosecution of their cailing. Any case of this description is to be reported to me, in order to its being dealt with as I may direct, and the same course is to be pursued in regard to the Her Majesty's Government had consented to forego the exercise of its strict right to exclude American fishermen from the Bay of Fundy; and they are of opinion that, during the present season that right should not be exercised in the body of the Bay of Fundy, and that American fishermen should not be interfered with either by notice or otherwise, unless they are found within three miles of the shore or within three miles of a line drawn across the mouth of a bay or creek which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839. American vessels found within these limits should be warned that by engaging or preparing to engage in fishing they will be liable to forfeiture, and should receive the notice to depart which is contemplated by the laws of Nova Scotia, New Brunswick, and Prince Edward Island, if within the waters of one of these Colonies under circumstances of suspicion. But they should not be carried into port except after wilful and persevering neglect of the warnings which they may have received; and in case it should become necessary to proceed to forfeiture, cases should, if possible, be selected for that extreme step in which the offence of fishing has been committed within three miles of land. Her Majesty's Government do not desire that the prohibition to enter British Bays should be generally insisted on, except when there is reason to apprehend some substantial invasion of British rights. And in particular, they do not desire American vessels to be prevented from navigating the Gut of Canso (from which Her Majesty's Government are advised they may be lawfully excluded), unless it shall appear Navigation of the Gut of Canso, should you observe it to be injurious to the Colonial fishermen, or otherwise detrimental to British interests. that this permission is used to the injury of Colonial fishermen, or for other improper objects. I have it in command to make this communication to your Lordships as conveying the decision of Her Majesty's Government on this subject. I have &c., (Signed) EDWARD CARDWELL. No. 146.-1870, May 16: Circular relating to Canadian In-shore Fisheries issued by Mr. Geo. S. Boutwell, United States Secretary of the Treasury. TREASURY DEPARTMENT, Washington, May 16, 1870. SIR, In compliance with the request of the Secretary of State, you are hereby authorized and directed to inform all masters of fishing vessels, at the time of clearance from your port, that the author 236 ities of the Dominion of Canada have terminated the system of granting fishing licenses to foreign vessels, under which they have heretofore been permitted to fish within the maritime jurisdiction of the said Dominion, that is to say, within three marine miles of the shores thereof; and that all fishermen of the United States are prohibited from the use of such in-shore fisheries, except so far as stipulated in the first Article of the Treaty of October 20, 1818, between the United States and Great Britain, in virtue of which the fishermen of the United States have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbours, and creeks, from Mount Joly, which was, when the Treaty was signed, on the southern coast of Labrador, to and through the straits of Belle Isle, and thence northwardly, indefinitely along the coast, without prejudice, however, to any exclusive rights of the Hudson's Bay Company; and have also liberty for ever to dry and cure fish in any of the unsettled bays, harbours and creeks of the southern part of the coast of Newfoundland, above described, and of the coast of Labrador, unless the same, or any portion thereof, be settled, in which case it is not lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground; and also, are admitted to enter any other bays or harbours for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever, subject to such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges reserved to them as above expressed. |