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THOMPSON. —queen's PJRINTEII [lALlFAX, N H. i J! /^ 2 , FISHERIES. 1. The schooner Nabby was seized by Her Majesty's ship Saracen, John Gore, Master and Commander, and prosecuted in the Admiralty Court before Judge Uniacke, on the 24th August, 1818, anterior to the Convention, under an order from the Right Honorable the Lords of the Admiralty, to the Commander-in- Chief of the North American Squadron. 2. The Convention passed on the 20th October, 1818. The following Imjierial Act, 9 Geo. III. Chap. 38, passed on the lAth June, 1819 ; An Act to enable His Majesty to make Regulations with respect to the taking and curing Fish on certain parts of the Coasts of Newfoundland, Labrador, and His Majesty's other Possessions in North America, according to a Convention made between His Majesty and the United States of America. Convention dated 20th October, 1818. " Whereas a Convention between His Majesty and the Unitecl States of America was made and signed at London, on the Twen- tieth day of October, One thousand eight hundred and eighteen ; and by the first article of the said Convention, reciting that differ- ences had arisen respecting the liberty claimed by the United States for the Inhabitants thereof to take, dry, and cure Fish in certain coasts, bays, harbours, and creeks of His Britannic Majesty's Dominions in America, it is agreed that the Inhabitants of the said United States shall have for ever, in common with the subjects of His 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 coasts 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 Jolly^ I hmmmtaamssmmsm ')\i tilt; i^outilel'll r-O'iNt of Lnhntdnr. to niul iliroiiiih iln; K>traits ol PicUaisU', and tlit'iicc iiurtlnviudly iiideliiiitcly almiL,' tlic coast, without prejudico however to any oi' the exclusive l•i,^his of th(f Jli((ls(His Jjtn/ Company: audit Avas also hy tlie said Article ol" the said Convention a^i^-rccd. tliat ihv A/at ri''(n/ l''''n y to the Legislature of Nova Scotia- I have the honor to be, &c. (Signed) GLENELG. Lieut. General, Sir Colin Campbell, &c. &c. &c. 27th March, 1840. — The Legislature of Nova Scotia passed an Address to His Majesty, requesting Government to adopt and frame similar regulations for the Fishery for New Brunswick, Prince Edward Island, Canada and Newfoundland; and calling attention to the use of the Strait of Canso by American fishing vessels seeking the Gulf of Saint Lawrence in violation of the Treaty. In 1841, the House of Assembly adopted a Report and annexed observations of Captain Alexander Milne, of His Majesty's ship "it iji '^i .): ; 12 (Jrocodile. uu the Fislioric^ of Newfoundlantl, !in. 1849, Appendix No. 72, a Report to the same eft'oct. 1850, Appendix No. 77, Ditto. 1851, in the Keport of this yeai" the House I'ecommend the pro- hibition of American vessels passing throngli the Strait of (Janso, and report as follows : "The Committee a})pointed to consider the ([uestion of the Navi- gation by Foreign Vessels of the Gut of CansO; bog hnive to report as follows : " The question submitted to your Committee involves the consi- deration, first, of tlie rii^lit of the Leiiiislatui'e of this Province to impose restrictions or obstructions upon Foreign Vessels wishing the use of that passage ; and secondly, the policy of imposing any and what restrictions or o])structions. Your Committee, in the consideration of the first point, are aided materially by the action of a Committee of this House in the year 1842, Avho prepared a series of questions, Avhich were submitted by Lord Falkland to the Colonial Secretary, and ])y him to the Law Officers of the Crown in England, upon the general subject of the rights of Fishery as reserved to this country l)y the Treaty Avitli the United States in the year 1818, and also respecting the Navigation of the Gut of Canso. As the consideration of your Committee has been solely directed to the latter point, it is unnecessary to advert to the issues raised upon the other points. The investigation is therefore con- fined to the fourth question sulmiitted, that is to say : Have ves- sels of the United States of America, fitted out for the Fishery, a right to pass through the Gut or Strait of Canso, Avhich they can- not do without coming Avithin the prescribed limits, or to anchor there, or to fish there : and is casting l)ait to lure fish in the track of the vessels fishing within the meaning of the Convention / "This question, with the others, Avas suggested by the considera- tion of a remonstrance from Mr. Stevenson, then United States Minister in England, dated the 27tb IMarch, 1841, addressed to Lord Palmerston. then and now Foreign Secretary, against the sei- zure of fishing vessels l^elonging to citizens of the United States for alleged breaches of the terms of the Convention of 1818, a copy of which wasforAvarded to Lord Falkland, then Lieutenant Covernor 11} :•'(' *,^i 'r I M) i ■ t of lliis J*roviiice und sul)iuiiU'> passed by the Provincial Legislature are really of the oppreaeive nature they are asserted to be by Mr. Stevenson, they were enacted in the belief that the framers of them Avero doing nothing more tlian carrying out the views of the Home Government as to the mode in which the Colonists should protect their own dearest in- terests. I enclose a copy of a Proclamation containing the Act of the 6th William IV., of which ISlv. Stevenson complains: and any alteration in its proN'isions, should such be deemed necessary, wiay be made early in the next Session of tl\c Pl-oviticial Parlia- ment. '•The opinion of the Queen's Advocate and her Majesty's Attor- ney General on the Case drawn up hy Lord Falkland, and upon the questions submitted by the Committee, was enclosed by Lord Stanley to liOi'd Falkland, accompanied by a despatch dated the 28th November, 1842. The opinion of the Law Officers of the Crown, sustained as it was by the British Government, upon the point now under discussion, is as follows : ' By the Convention of 1818, it is agreed that American citizens should have the liberty of fishing in the Gulf of St. Lawrence, and within certain defined limits, in common with British subjects, and such Convention does not contain any words negativing the right to navigate the passage or Gut of Canso, and therefore it may be conceded that such right of navigation is not taken away by that Convention, but we have attentively considered the course of navigation to the Gulf by Cape Breton, and likewise the capacity and situation of the passage of Canso, and of the British Dominions on either side, and we are of opinion that, independently of Treaty, no foreign country has the right to use or navigate the passage of Canso, and attending to the terms of the Convention relating to the liberty of Fishery to be enjoyed by American citizens. We are also of opinion that the Convention did not either expressly or by necessary implication concede any such i-iglit of using or navigating the passage in (juestion. '•The opinion of the British Government, resting upon that of the Law Officers of the Crown, is therefore clearly expressed to the head of the Government in this Province, for his direction and guidance, and that of the Legislature. The case is decided, after a full examination of the arguments on both sides. Mr. Steven- son complains of the exercise of the right asserted by the Govei-n- raent here to control the "passage of Canso." Lord Falkland ^*ubmitted his views, as well as those of the Committee in opposi- tion to those of Mr. Stevenson ; and the decision is unequivocally American tlaim. It will be observed, that Mr. Stc- §■ v'J I iigainst the If voiison vests liis (>|)|»owitioii to llie liulit clainKMl. principiilly iijwn tlu! Tact tliat tilt' Islaiul of ( a)»e IJrtJton was a distinct Colony at tlic liiiic of the (Joiivcntion in 1(S;|8: and hence ai^ues that the Province of Nova Scotin not liavin;;' thcji the sttlc riglit to the waters of tlie (»ut of (.'anso. could not now claim t<» exercise an uTdiniited control, /v^liiiitiini; that such ri;j;ht did //r>/ then exist, it is clear that if a coaimon rJ!j;ht iseiijoyed solely 1)y two parties, their union woidd j^ivc complete control : and it may he I'airly contended that Nova Scoti;, and Cape Jireton, heiniii' now under one (jovern- nient, jiossess the same jjowera united as they did hefore tlie union as respects third jKirties ; and that the eftect of the union only operates to prevent anta_L';()nislic action relatively hetween theui. The Law Oillccfs of the Ciown. however, take higher <^Tound, and insist, first, that no Foreiiin jiower has any such ri;^'ht as that con- tejided for hy ]\tr. Stevenson, unless conveyed hy Treaty: and se- condly, that no sue)) right is conferred hy the Treaty of 1818, on American citi/cns. 1 laving «uch high authority in favor of an existing control of the navigation of the passage in tjuestion, it might he considered as conclusively settleil : hut as this exclusive right is contested on the ])art of the American Government, the opinion of the late Chancellor Kent, an American jurist of the liigliest standing, in favor of the exercise of that right as given in a cha])ter of his celehrated Legal Connnentarics upon the Law of Nations, is of peculiar value and impo]'tance. That distinguished laAvycr, in the work just mentioned, ti'cating at large upon this suhject, says : '" It is difficult to draw any precise or determinate conclusion amidst the variety of opinions as to the distance to which a State may laAvfully extend its exclusive dominion over the sea adjoining its territories, and heyond those portions of the sea which are embraced by harbors, gulfs, bays and estuaries, and over which its jurisdiction unquestionably extends. All that can be reasonably asserted is, that the dominion of the Sovereign of the shore over the contiguous sea extends as far as is recjuisite for his safety and for some lawful end. A more extended dominion must rest entirely upon force and maratimc supremacy. According to the current of modern authority, the general territorial jurisdiction extends into tlie sea as far as cannon shot will reach and no farther, and this is generally calculated to be a marine league ; and the Congress of the United States have recognized this limitation by authorizing the District Courts to take cognizance of all captures made witliin a marine league of the American shores. The exe- cutive authority of this country in ITOo considered the whole of Delaware Bay to be Avithinour territorial jurisdiction, and it rested its claim upon thosse authorities which admit that gulfs, channels % 33 and arms of the sea belong to the people with whose hinds they are encompassed. It was intimated that the law of nations would justify the United States in attaching to their coasts an extent into the sea, beyond the reach of cannon-shot. Considering the great extent of the line of the American coasts, we have a right to claim for fiscal and defensive regulations a liberal extension of maritime jurisdiction ; and it would not be unreasonable, as I apprehend, to assume for domestic purposes connected with our safety and wel- fare, the control of the waters on our coast, though included within lines stretching from quite distant headlands, as, for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauck Point, and from that Point to the Capes of the Delaware, and from the South Cape of Florida to the Mississippi. It is certain that our Government would be disposed to view with some uneasiness and sensibility, in the case of war between other maritime powers, the use of the waters of our coast far beyond the reach of cannon- shot as cruising ground for belligerent purposes. In 1798, our Government thought they were entitled, in reason, to as broad a margin of protected navigation as any nation whatever, though at that time they did not positively insist beyond the distance of a marine league from the sea shores ; and in 1806 our Government thought it would not be unreasonable, considering the extent of the United States, the shoalness of their coast, and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity from belligerent warfare for the space between that limit and the American shore." From the foregoing extract, it will be observed that Chancellor Kent agrees with the principle put forth by the Law OflScers of the Crown, and which justifies the conclusion, "that no foreign power independent of treaty, has any right to navigate the passage of Canso." Having thus by the highest legal authorities of England and the United States, been borne out in the assumption that no foreign power has any such right, the next enquiry is, as to where the power of controlling the passage of Canso exists. By the act of 1820, Cape Breton was annexed to Nova Scotia, and has since that period formed part of this Province, which for nearly a cen- tury has enjoyed a representative form of government, and which, in making laws, is only controlled by the operation of Impe- rial Statutes and the veto of the Crown. The right to make laws to afiect navigation, except the registry of ships, has been enjoyed and acted upon by this Legislature. Various laws have also been enacted making regulations for setting nets, and in other respects for regulating the Fisheries in our bays and creeks. Statutes; have also been passed here and assented to in England, for collecting light duties in the Gut of Canso, and American and othnr Foreign 1! i 34 and also British and Colonial vessels have been brought within the operation of those Statutes. The right, therefore, to legislate in respect of the Fisheries and in respect of the navigation of the Gut of Canso, has not only been confirmed in England, but has been acknowledged by America in the payment of light duties. The Legislature of Nova Scotia may, therefore, bo fairly said to have the right to pass enactments either to restrict or obstruct the passage of foreign vessels through the Gut of Canso. The second point, as to the policy of imposing further restric- tions upon foreign vessels passing through the Gut of Canso is yet to be considered. In the consideration of that question, the Treaty of 1818 affords the best means of arriving at a sound conclusion. The American Government, by it, relin(i[uish all right of fishery within three marine miles of the cojists, bays, creeks or harbors of this Pro- vince ; and under the construction put upon that clause in England, upon the same principle of international law as is acknowledged and insisted upon by the American Government, the American citizens, under the TreaLy, have no right, for the purpose of fish- ery, to enter any part of the Bay of Saint George, lying between the headlands formed by Cape George on the one side, and Port Hood Island on the other. American fishermen, therefore, when entering that Bay for fishing purposes, are clearly violating the terms of the Treaty. It may be said that the Gut of Cansa aftbrds a moi-e direct and easy passage to places in the Gulf of Saint Lawrence, where American fishermen would be within the terms of the Treaty, but that is m» good reason why this Legisla- ture should permit them to use that passage when their doing so i» attended with almost disastrous cousequences to our own fisher- men. Were there n^ other meanis oi' getting upon the fishing; grounds, in the produce of which they are entitled to participate^ the Americans- might then assert a right of way, from necessity^ through the Gut of Canso. When that necessity does not exist^ it would be unwise any longer to permit Americaia fishing vessels to pass through the Gut of Cans©-, for the following, among many other reasons that could be given, if necessary. In the month of October, the net and seine fishery oi* mackerell in the Bay of Saint George is most important to the people of that part of the country, and requires at the hands of the Legislature every legiti- mate protection. Up to this period, American fishermen, using the passage of the Gut of Canso, go from it into Saint George's J^ay, and not only throw out bait to lure the fish from the shores where they are usually caught by our own fishermen, but actually fish in all parts of that Bay, even within one mile of the shores. It is also a notorious fact that the American fishing vessels in that va 36 n the ate in )f the it has 3S. y said struct Dstric- is yet affords lerican three IS Tro- igland, pledged ncrican )f fish- )etwccn id Port B, when ing the Canso Gulf of thin the Legisla- ing 80 i& fisher- fisliing "ticipatOy ecessityy ,ot exist, vessels [ig many month of Bay of rt of the ry legiti- m, using George' » he shores ; actually le shores. ;ls in that Bay annually destroy the nets of the fishermen by sailing through them, and every year in that way do injury to a great extent ; and all this upon ground which they have no right to tread. Remon- strances have heretofore been made to the American Government against such conduct, but the answer has invariably been to pro- ject ourselves in that respect. Had the United States Government adopted suitable measures to prevent its citizens from trespassing as before mentioned, it would not be necessary for this Legislature to put any restrictions upon their use of the passage m question ; but as the onus has been thrown upon this Legislature, it is clearly its duty to adopt the most efficient and least expensive means of protection. If the privilege of passage is exercised through the Gut of Canso and the Bay in question, it is next to impos- sible to prevent encroachments and trespasses upon our fish- ing grounds by American citizens, as it would require an expen- sive coast-guard by night and day to effect that object, and then only partial success would result. It would be unreasonable to tax the people of this country to protect a right which should not be invaded by foreigners, and which can only be invaded and encroach- ed upon by our permitting foreigners to use a passage to which they are not entitled. Without, therefore, any desire unnecessarily to hamper American citizens in the enjoyment of that to which they are justly entitled, your Committee consider it their imperative duty to recommend such measures for the adoption of the House as will in the most effectual way protect the true interests of this country. The outlay necessarily required to watch properly the ■operations of foreign fishing vessels in the Bay of Saint George, so as to prevent encroachments, amounts to a prohibition of its being accomplished ; and it therefore becomes indispensable that «uch vessels be prohibited from passage through the Gut of Canso. That Strait will always be, to vessels of all classes, a place of re- fuge in a storm, and American fishing vessels will be entitled to the »Be of it as a harbor for the several purposes mentioned in inc Treaty. It can be visited for all those purposes, without a passage through being permitted ; and your Committee therefore recom- mend that an Act be passed authorizing the Governor, by and with the advice of his Executive Council, by proclamation, either to im- pose a tax upon foreign fishing vessels for such amount as may be provided in the Act, or to prohibit the use of such passage alto- gether. W. A. HENRY, CHAS. F. HARRINGTON, THOMAS KILLAM, J. J. MARSHALL, X C. HALL. %: