^^'^'^o.
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
I.I
■^^■2.8 1 2.5
■^ Uii 12.2
u US
1.25 1 1.4 1 1.6
^
6"
►
m
vl
^;.
>>
'/
-!^
Photographic
Sciences
Corporation
33 WfST MAIN STMIT
WH3TER,N.Y. 14530
(71*) 373^903
t/,
»
«
V
r^
o
\
CIHM/ICMH
Microfiche
Series.
CIHM/iCMH
Collection de
microfiches.
Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques
Technical and Bibliographic Notes/Notes techniques et bibliographiques
The Institute has attempted to obtain the best
original copy available for filming. Features of this
copy which may be bibliographically unique,
which may alter any of the images in the
reproduction, or which may significantly change
the usual method of filming, are checked below.
D
D
D
D
D
D
D
D
n
Coloured covers/
Couverture de couleur
I I Covers damaged/
Couverture endommag6e
Covers restored and/or laminated/
Couverture restaurde et/ou pellicul6e
I I Cover title missing/
Le titre de couverture manque
Coloured maps/
Cartes gdographiques en couleur
Coloured ink (i.e. other than blue or black)/
Encre de couleur (i.e. autre que bleue ou noire)
Coloured plates and/or illustrations/
Planches et/ou illustrations en couleur
Bound with other material/
Reli6 avec d'autres documents
Tight binding may cause shadows or distortion
along interior margin/
Lareliure serr^e peut causer de I'ombre ou de la
distortion le long de la marge int6rieure
Blank leaves added during restoration may
appear within the text. Whenever possible, these
have been omitted from filming/
II se peut que certaines pages blanches ajoutdes
lors d'une restauration apparaissent dans le texte.
mais, lorsque cela 6tait possible, ces pages n'ont
pas 6x6 filmdes.
Additional comments:/
Commentaires suppl6mentaires;
Th4
to
L'Institut a microfilm^ le meilleur exemplaire
qu'il lui a 6t6 possible de se procurer. Les details
de cet exemplaire qui sont peut-dtre un'ques du
point de vue bibliographique, qui peuvent modifier
une image reproduite, ou qui peuvent exiger une
modification dans la mdthode normale de filmage
sont indiqu6s ci-dessous.
□ Coloured pages/
Pages de couleur
□ Pages damaged/
Pages endommagdes
I I Pages restored and/or laminated/
y/
D
Pages restaurdes et/ou pellicul6es
Pages discoloured, stained or foxed/
Pages ddcolordes, tachet^es ou piqu6es
Th<
poi
of
filnl
Ori
be(
the
sioi
oth
firs
sioi
or
□ Pages detached/
Pages ddtach^es
Showthrough/
Transparence
I I Quality of print varies/
Quality in^gale de I'impression
Includes supplementary material/
Comprend du matdriel suppldmentaire
Only edition available/
Seule Edition disponible
The
sha
TIN
whi
Mai
diff
enti
begi
righ
reqi
met
Pages wholly or partially obscured by errata
slips, tissues, etc., have been refilmed to
ensure the best possible image/
Les pages totalement ou partiellement
obscurcies par un feuillet d'errata, une pelure.
etc., ont 6t6 filmdes d nouveau de fapon 6
obtenir la meilleure image possible.
This item is filmed at the reduction ratio checked below/
Ce document est film6 au taux de reduction indiqud ci-dessous.
10X
14X
18X
22X
26X
30X
y
12X
16X
20X
24X
28X
32X
lire
details
jes du
modifier
jer une
filmage
The copy filmed here has been reproduced thanks
to the generosity of:
Library of the Public
Archives of Canada
The images appearing here are the best quality
possible considering the condition and legibility
of the original copy and in keeping with the
filming contract specifications.
L'exemplaire film6 fut reproduit grflce d la
g6n6rosit6 de:
La bibliothdque des Archives
publiques du Canada
Les images suivantes ont 6t6 reproduites avec le
plus grand soin, compte tenu de la condition et
de la nettet6 de l'exemplaire film6, et en
conformity avec les conditions du contrat de
filmage.
6es
Original copies in printed paper covers are filmed
beginning with the front cover and ending on
the last page with a printed or illustrated impres-
sion, or the back cover when appropriate. All
other original copies are filmed beginning on the
first page with a printed or illustrated impres-
sion, and ending on the last page with h printed
or illustrated impression.
Les exemplaires originaux dont la cou*'erture en
papier est imprimde sont film^s en commen9ant
par le premier plat et en terminant soit par la
dernidre page qui comporte une empreinte
d'impression ou d'illustration, soit par le second
plat, salon le cas. Tous les autres exemplaires
originaux sont filmds en commen^ant par la
premidre page qui comporte une empreinte
d'impression ou d'illustration et en terminant par
la dernidre page qui comporte une telle
empreinte.
The last recorded frame on each microfiche
shall contain the symbol -^ (meaning "CON-
TINUED"), or the symbol y (meaning "END"),
whichever applies.
Un des symboles suivants apparaitra sur la
dernidre image de cheque microfiche, selon le
cas: le symbols — ^> signifie "A SUIVRE", le
symbols V signifie "FIN".
re
Maps, plates, charts, etc., may be filmed at
different reduction ratios. Those too large to be
entirely included in one exposure are filmed
beginning in the upper left hend corner, left to
right and top to bottom, as many frames as
required. The following diagrams illustrate the
method:
Les cartes, planches, tableaux, etc.. peuvent dtre
film4s d des taux de reduction diffdrents.
Lorsque le document est trop grand pour dtre
reproduit en un seul clich6, 11 est filmd d partir
de Tangle sup6rieur gauche, de gauche d droite,
et de haut en bas, en prenant le nombre
d'images ndcessaire. Les diagrammes suivants
illustrent la mdthode.
y errata
id to
It
le pelure,
9on d
1 2 3
32X
1
2
3
4
5
6
IMPERIAL AND PROVINCIAL
ACTS, &c,
FOR THI] PROTECTION OF TIlFi FISHERIES
OF
BRITISH JVORTH AMERICA
^
JullN H. 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<li(rinni sliould
have liberty for ever to dry and cure Fisli in any of the unsettU'd
hays, harltours. and ci-eeks ot' the southern part <)!' the coast of
Ncwfiniudlatid above described, and of the coast of Lnhnidor^
])ut that so soon as the same, or any portion thereof, sliould Ix; set-
tled, it shor.ld not be hnvful for the said Fishermen to dry or cure
Fish at such portion so settled, a\ ithout previous ai^reenient for
such purpose Avith the Inhabitants. T?roj)rietors or Possessors of the
ground : And Avhercas it is expedient that His Ma'' sty should l)e
enabled to carry into execution so nutch (jf the sa^ Convention as
is above recited, and to make regulations for that p..rpose:"
Mis IMajcstv, in Council. nui,v inaUo roi^'uhilioii- rurciiriyiii;,' tin; (..'onvciilion
into olVcc'l.
1. Be it therefore enacted, by the King's jMost Excellent Ma-
jesty, by and Avith the advice and consent of the Lords Spiritual
and Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, That from and after the passing
of this Act. it shall and may l)e laAvful for His INIajesty, ))y and
Avith the advice of Ilis Majesty's Pri\'y Council, by any Order or
Orders in Council, to bo from time to time made for that purpose,
to make such regulations, and to give such directions, orders and
instructions, to the Governor of N(!}rfoinidJ<utd. or to any Officer
or Officers on that Station, or to any other person or persons Avliom-
soever, as shall or may be fi'om time to time deemed proper and
necessary for the carrying into eft'ect the purposes of the said Con-
vention, Avitli relation to the taking, drying and curing of Fish by
-Inhabitants of the United States of Amcria/, in common Avith Bri-
tish subjects, Avithin the limits set forth in the said Ai'ticle of the
said Convention, and hereinbefore recited; any Act or Acts of Par-
liament, or any LaAv, custom or usage, to the contrary in anyAvise
notAvithstanding.
Foreigners and persons in Foi'eir^n Vessels not to fir<li within a certain distance of any
British harbour in America, not included in the limits prescribed )iy the Convention. —
Penalty. — Proviso lor vessels of Powers entitled tlicreto by Treaty.
2. And be it further enacted. That from and after the passing
of this Act, it shall not be laAvful for any person or persons, not
being a natural born subject of Ilis Majesty, in any Foreign ship,
vessel or boat, nor for any person in any ship, vessel or ])oat. other
. )
than snt'li aft sliall he iiiivi«^at(.'tl accoriliiig lu thr kuvs ot'tlu' Uiiitcil
Kii);j;(loni ul' (irxU lliih'tn iiml Inland, to ilsli I'or or take, dry,
or euro, any Fi«li oraiiy kind wliatcver, within three uuirino miles
of any coasts, l)ays, creeks, or hurhours whati'ver. in any part ol*
His "Majesty's Dominions in Anu riai. \vA ineluiled within the limits
specified and described in tlie first Article of the said Convention,
and hcrein1)eforo recited : and tluit if any such F«jrei^n ship, ves-
sel or boat, or any persons on hoard thereof, shall he found fishin^i;,
or to have been fishini^, or preparing to lish within such distance of
such coasts, hays, creeks or luirhours, within such parts of llis
Majesty's dominions in Ainrrica, out of the said limits as afore-
said, all such ships, vessels and l)oats, together with their cargoes,
and all guns, anmiunition, tackle, a])parel. furniture and stores,
shall be forfeited, and shall and may 1)0 seized, taken, sued for,
prosecuted, recovered and coudennied, by such and the like Avays,
means and methods, and in the same Courts, as ships, vessels, or
boats, may Ik; forfeited, sei/ed, prosecuted, and condemned for any
offence against any Laws relating to the Revenue of Customs, or
the LaAVS of Trade and Navigation, under any Act or Acts of the
Parliament of GrrjiL lirifniii, or of the United Kingdom of Great
Hrilitbi and Inl/unl — ])rovitlcd that nothing in this Act contained,
shall apply, or be construed to apply, to the ships or subjects of
any Prince, PoAver, or State, in amity Avith His Majesty, Avho arc
entitled, by Treaty Avith His IMajcsty. to any pi'ivilegc of taking,
drying, or curing Fish, on the coasts, bays, creeks or harbours, or
Avithin the limits in this Act described.
not
American Fis'hormcn may (.'utcr .snch Iliirhor,-?, i'or purposes herein mentioned, subject to
,;ucli rcgultitiun.-) u; may Ijc i.-.motl i'\ prevent the ulni.--u of the Treaty.
8. Provided ahvays, and lie it enacted. That it shall and may
be laAvful for any Fisherman of tlie said United States to enter
into any such, bays or harbors of His Britannic jMajesty's Domi-
nions in Am(!rica, as are last mentioned, fjr the purpose of shelter
and repairing damages therein, and of purchasing Avood and of
obtaining Avater, and for no other purpose Avhatever — subject,
nevertheless, to suclt restrictions as may be necessary to prevent
such Fishermen of the said United States from taking, drying or
curing Fish in the said bays or harbours, or in any other manner
Avhatever abusing the said privileges by the said treaty and by this
Act reserved to them, and as shall for that purpose be imposed by
any order or orders to be from time to time made ])y His Majesty
in (Council under the authority of this Act, and by any regula-
tions Avhich shall be issued by the Go\^ernor or person exercising
the office of Coverno]', in any such parts of His Majesty's Domi-
nlons in AniPikit, under or in pursuance of any such Order in
Council as {iforor^iiid.
Refusing, upon rcquisiti(jn, to rciuovc nr diaolicying orJors.— Penalty.— Limitation of
Proseeutidn.
4. And be it lurther enacted, That if any person or persons,
upon requisition made by the Governor of Newfoundland, or the
person exercising tlie ofllioe of Governor, or by any Governor or
person exercising the office of Governor in any other parts of Ilis
Majesty's Dominions in America as aforesaid, or ])y any Officer
or Officers acting under such Governor or person exercising the
office of Governor, in the execution of any orders and instructions
from His jMajesty in Council, shall refuse to depart from such
bays or iiarbours ; or if any person or persons shall refuse or
neglect to conform to any regulations or directions which shall be
made or given for the execution of any of the purposes of this Act;
every such person so refusing or otherwise offending against this
Act shall forfeit the sum of Two hundred pounds, to be recovered
in the Superior Court of Judicature of the Island of Newfoundland
or in the Superior Court of Judicature of the Colony or Settlement
within or near to which such offence shall be committed, or by Bill,
Plaint, or Information in any of His Majesty's Courts of Record at
Westminster ; one moiety of such penalty to belong to His Majes-
ty, His Heirs, and Successors ; and the other moiety to such person
or persons as shall sue or prosecute for the same, provided alwBys,
that any such suit or prosecution, if the same be committed in
Newfoundland, or in any other Colony or Settlement, shall be
commenced within three calender months ; and, if commenced in
any of His Majesty's Courts at Westminster^ within twelve cal-
ender months from the time of the Commission of such offence.
Provincial Act 6 Wm. /F, Chap. 8.
3. On the 12th March, 1836, the act of this Province passed,
entitled, " An Act relating to the Fisheries, and for the prevention
of Illicit Trade in the Province of Nova Scotia, and the Coasts
and Harbors thereof;" this Bill was accompanied by Addresses
from both Branches of the Legislature, and is embodied in the
Revised Statutes, page 282, as follows : —
Revenue Officers may board Vessels hovering within three miles of the coast, Ac.
1. Officers of the Colonial Revenue, Sheriffs, Magistrates, and
any other person duly commissioned for that purpose, may go on
board any vessel or boat within any harbor in the province, or
3rder in
imitation of
persons,
I, or the
ernor or
s of riis
y Officer
ising the
tructiona
)m such
efuse or
shall be
;his Act;
nst this
ecovered
indland
ttlement
by Bill,
I^ecord at
3 Majes-
h person
alwBys,
itted in
shall be
meed in
jlve cal-
fence.
passed,
jvention
Coasts
idresses
i iu the
st, ka.
3S, and
go on
ice, or
hovering within three marine miles of any of the coasts or hurhor^i
thereof, and stay on board so long as she »nay remain ^vitliin such
place or distance.
Proceedings where the Master, bound elsewhere, rcfuiica cm notice to depart.
2. If such vessel or boat bo bound elsewhere aud shall continue)
within such harbour, or so hovering for twenty-four hours after the
master shall have been required to depart, any one of the officers
above mentioned may bring such vessel or boat into port and search
her cargo, and also examine the master upon oath, and if the mas-
ter or person in command shall not truly answer the questions
demanded of him in such examination he shall forfeit one hundrcil
pounds ; and if there be any prohibited goods on board, then such
vessel or boat, and the cargo thereof, shall be forfeited.
Foreign Vessels fishing or preparing to fish, and their cargoes, forfeited.
8. If the vessel or boat shall be foreign, and not navigated ac-
cording to the laws of Great Britain and Ireland, and shall have
been found fishing or preparing to fish, or to have been fishing
within three marine miles of such coasts or harbors, such vessel or
boat, and the cargo shall be forfeited.
Vessels and Goods forfeited liable to seizure; penalty for obstructing officers.
4. All goods, vessels and boats, liable to forfeiture may be
seized and secured by any of such officers or persons so commis-
sioned, and every person opposing them, or any one aiding such
opposition, shall forfeit two hundred pounds.
Custody of Vessels and Goods seized.
6. Goods, vessels and boats, seized as liable to forfeiture under
this chapter, shall be forthwith delivered into the custody of the
officers of the colonial revenue next to the place where seized, to be
secured and kept as other vessels, boats and goods seized, are
directed to be secured and kept by law.
Ciondemned Vessels and Goods, bow disposed of— proceeds, how applied.
6. All goods, vessels and boats, condemned as forfeited under
this chapter, shall, by direction of the principal officer of the colo-
nial revenue where the seizure shall have been secured, be sold at
public auction, and the produce of such sale shall be applied as
follows: the amount chargeable for the custody of the property
seized shall first be deducted, and paid over for that service, one
half of the remainder shall be paid to the officer or person seizing
8
the siiine witliout dt'iluction. imd the other half, after first dotlucL-
in;^ thorofVoiu all costs incurred, shall l)e paid into the treasury of
tlie province ; but the JJoard of Revenue may Jievertheless (hrect
that any vessel, hoator ^oods. seizeil and forfeited. sh;dl he destroyed
or reserved for the puhlie service.
Penalties and I-Vrfeiturc.-', how i)ro.'<efUloil.
7. All })enalties and forfeitures hereunder shall be prosecuted
and recovered in the Court of Vice Admiralty.
Vessels and (iood.! to lie rc-di'livcrcd vn .security.
8. If any jj;oodB, vessel or l)oat, shall be seized as forfeited under
this chapter, tlie Judi^e of the Vice Adnn'ralty, with the consent of
the persons seizinii; the same, may order re-delivery thereof, on
security l)y bond, to be made by the party, -with tAvo sureties, to the
use of Jler INIajesty. In case tlu' projx-rty shall be condemned, the
value thereof shall be paid into the couj't, and distril)Uted as above
dii'ccted.
Suits, Iiow brought and prosccutcil ; oral oxidonco admif-sil'lv a.- to the authority ol
^^t•izing (Jfliocr.-'.
y. All suits for the recovery of penalties or Ibrfeitures shall be
in the name of He)' Majesty, and shall be prosecuted by the Advo-
cate General, or in case of his absence l)y the Solicitor General. If
a dispute arise ■whether any person is authorized to seize under this
chapter, oral evidence may be heard thereupon.
Burden of proof in cases of seizure to rest with claimant
10. If any seizure take place under this chapter, and a dispute
arise, the proof touching the illegality thereof shall be upon the
owner or claimant.
Claims upon property seized to be under oath.
11. No claim to any thing seized under this chapter, and
returned into the court of Vice Admiralty for adjudication, shall be
admitted, unless the claim be entered under oath, ^vith the name of
the owner, his residence and occupation, and the description of the
property claimed, which oath shall be made by the owner, his
attorney or agent, and to the best of his knowledge and belief.
.Security to bo pivcn before claim entered.
12. No person «hall entci .i claim to any thing seize dundcj. this
■*«•» fc.7--
iloducl'
isiiry of
H <lircct
jstroycil
osccutcd
I)
0(1 urKler
)]isent of
•rcof, on
}S, totlio
inc<l, the
;is iibovo
lutliority o(
■ shall be
ic Advo-
pral. If
ndcr this
I (
lispute
)oii the
tcr, and
shall be
name of
n of the
ncr. his
icf.'
idci this
vhaptei' until socurity !<liall have been given in a [u-naUy not
exceeding sixty pounds to answer and pay eosts occasioned by sucli
claim, and in default of such security the tilings seized sFiall be
ai\judgcd forfeited andsliall ])e condemned.
iMontli'fl notice to oDTiocr bel'oru action.
13. No Avrit shall l)c sued out against any oflicer or other
person authorized to seize under tliis ehajUer for any thing done
thereunder, until one month after notice in writing, delivered to
him or left at his usual place of abode by the person intending to
sue out such writ, his attorney or agent, in which notice shall bo
contained the cause of action, the name and place of abode of the
person who is to l)ring the action, and of his attorney or agent,
and no evidence of any cause of action shall 1)0 produced except
ijuchas shall be contained in such notice.
Ijimitation ol' action agaln.st scizinj; omccrs.
14. Every such action shall be ])rought within three months
after the cause thereof has arisen.
Cortificato of probable cause of fcizurc l..u,11 prcTcnt the recovery of cost:), Ac.
15. If on any information or suit brought to trial under this
chapter on account of any seizure, judgment shall be given for the
claimant, and the judge of or court shall certify on the record that
there was probaldc cause of seizure, the claimant shall not recover
costs, nor shall the person avIio made the seizure be liable to any
indictment or suit on account thereof. And if any suit or prose-
cution be brought against any person on account of such seizure
and judgment shall be given against him and the judge or court
shall certify that there was brobable cause for the seizure, then
the plaintiff besides the thing seized or its value shall not recover
more than two-pence damages nor any costs of suit, nor shall the
defendant be fined more than one shilling.
Amends may bo tendered within one month.
10. The seizing officer may within one month after notice of
action received tender amends to the party complaining, or his attor-
ney or agent, and plead such tender.
Limitation of actions for penalties, ac.
17. All actions for the recovery of penalties or forfeitures impo-
posed by this chapter must be commenced within three yci'rs after
the offence committed.
9
fggfg^ggggggsm^
10
Appeals, within wbal time tu be prusecuted.
18. No appeal shall be prosecuted from any decree or sentence
of any court in this province touching any penalty or forfeiture
imposed hereby, unless the inhibition be applied for and decreed
within twelve months from the decree or sentence being pro-
nounced.
Coasting vessels to have a narrow piece of plank or iron extending aft of the stern post .
19. All coasting vessels under sixty tons burthen, owned in
this province, and engaged in the coasting trrde thereof, shall be
furnished with a narrow piece of plank or iron aflBxed to the bot-
tom of the keel and level therewith, extending aft at least six
inches beyond the aperture between the stern post and rudder, and
well secured on the keel. But this section shall not extend to
vessels in which the main or false keel extends six inches beyond
the aparture between the stern post and rudder.
Forfeiture for destroying nets where coasters are not so provided.
20. Any ovaier or master of a coasting vessel not so furnished
or built, running foul of any net set oifthe harbors, bays and rivers
of the coast, shall, upon due proof thereof, forfeit five pounds, to
be recovered by the party injured to his own use as a private debt,
leaving to the party grieved, nevertheless, his rights at common
law for any further damage.
Definition of terms.
21.
bors "
In this chapter " vessels" shall include ships, and "har-
shall include ports, bays and creeks.
In 1837 Appendix No. 75, will be found an elaborate report oa
the subject of the Fisheries, recommending His Majesty's Govern-
ment to employ Steamers for their protection, and the Provincial
Government a Preventive Force — which latter was done.
6th November, 1838.— The following Despatch from Lord
Glenelg to Sir Colin Campbell was received, answering the Address
of the Legislature, and conveying the views of His Majesty's
Government: {Vide Jomnals of 1838, No. 9.)
11
Downino- Stnf.t. Uth November. 1888.
sentence
forfeiture
i decreed
jing pro-
stern post.
owned in
f, shall be
the hot-
least six
dder, and
extend to
BS beyond
furnished
and rivers
)ounds, to
vate debt,
\, common
md "har-
report on
s Govem-
?rovincial
e.
"^lord
rom JL4
le Address
Majesty's
Sir,-—
I have the honor to acknowledge your Despatch No. 16?
of the 26th March last, transmitting a joint Address to the Queen
from the Legislative Council and House of Assembly of Nova
Scotia, complaining of the habitual violation, by American Citizens,
of the Treaty subsisting between Great Britain and the United.
States on the subject of the Fisheries, and praying for additional
Naval protection to British interests.
In obedience to Her Majesty's commands, this subject has
engaged the serious attention of Her Majesty's Government, and
it has been determined for the future to station, during the fishing
season, an armed force on the coast of Nova Scotia, to enforce a
more strict observance of the provisions of the Treaty by Ameri-
can citizens, and Her Majesty's Minister at Washington has been
instructed to invite the friendly co-operation of the American
Government for that purpose.
The necessary directions having been conveyed to the Lords
Commissioners of the Admiralty, their Lorc&hips have issued
orders to the Naval Commander-in-Chief on the West Indian and
North American Station to detach, so soon as the fishing season
shall commence, a small vessel to the coast of Nova Scotia, and
another to Prince Edward Island, to protect the Fisheries. The
Commanders of these vessels will be cautioned to take care that,
while supporting the rights cf British Subjects, they do not them-
selves overstep the bounds of the Treaty. You ^yill of course
afford them every information and assistance which they may
require for the correct execution of this duty. I trust that these
measures will prove satisfacto> 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<l pressed tor tlie
adoption of regulations, especially at the Magdalen Islands. —
Vide Jow'?ials, Appendix No. 02.
In the same year, the Minister for the United States addressed
Lord Viscount Palmerston, on the subject of the existing law and
the Treaty, and the following correspondence and opinion was the
result :
My Lord-
Doivniiis^ Street^ '<)th Aprils 1841.
I have the honor to transmit, herewith, to your
Lordship, the copy of a letter from the Under Secretary of State
for Foreign Affairs, enclosing the copy of a note from the Minister
at this Court from the United States of America, complaining of
the proceedings of the Provincial authorities of Nova-Scotia towards
the vessels and citizens of that Republic, engaged in fishing on the
coasts of that Province.
I have to request that you Avill make immediate enquiry into the
allegations contained in Mr. Stevenson's note, and that you will
furnish me with a detailed report on the subject, for the information
of Her Majesty's Governm(!nt.
I have, &c.
(Signed) J. RUSSELL.
The Right Honorable Viscount Falkland, kc. &c.
SiK-
Foreio-n OJire, '27id Ajml, 1841.
I am directetl by Viscount Palmerston to transmit to
you, herewith, for the consideration of Lord John Russell, a copy
of a note from Mr. Stevenson, Minister from the United States of
America, relative to certain proceedings of the Colonial authorities
of Nova-Scotia towards the vessels and citizens of the United States
engaged in fishing on the neighbouring Coasts of Nova-Scotia.
I have, &c.
(Signed)
James Stephen, JLsq.. &c.
LEVESON.
ibr the
ands. —
Hressed
law and
was the
1841.
to your
of State
Minister
ining of
, towards
g on the
J into the
you will
brmation
ELL.
1841.
bnsmit to
1, a copy
States of
Lthorities
3d States
5cotia.
SON.
l.{
(JOl'Y UF NOTK I'KO.M .MU. STEVKNSoX.
The undersigned, Envoy Extraordinary and Minister Plenipo-
tentiary from the United States, has the honor to acquaint Lord
Viscount Palmerston, Her Majesty's principal secretary of state
for foreign affairs, that he has been instructed to bring to the notice
of Her Majesty's Government, without delay, certain proceedings
of the Colonial authorities of Nova-Scotia, in relation to the seizure
and interruption of the vessels and citizens of the United States,
engaged in intercourse with the Ports of Nova-Scotia and the pro-
secution of the Fisheries on its neighbouring coasts, and which, in
the opinion of the American Government, demand the prompt in-
terposition of Her Majesty's Government. For this purpose the
undersigned takes leave to submit to Lord Palmerston the follow-
ing representation :
By the 1st article of the Convention between Great Britain and
the tlnited States, signed at London on the 20th October, 1818,
it is provided — 1st. That the inhabitants of the United States
shall have for ever, in common with the subjects of Great Britain,
the liberty to take fish of every kind on that part of the southern
coast of Newfoundland wliich 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 Harbors, and
Creeks, from Mouiit Joly, on the southern Coast of Labrador, to
and through the Straits of Bellisle, and thence Northwardly inde-
finitely along the coast, Avithout prejudice, however to the exclusive
rights of the Hudson Bay Company.
2d. That the American shall also have liberty, for ever, to dry
and cure fish in any part of the unsettled Bays, Harbors and
Creeks of the southern portion of the coast of Newfoundland be-
fore described, and of the coast of Labrador, the United States
renouncing any liberty before enjoyed by their citizens to take the
fish within three miles of any Coasts, Bays, Creeks, or Harbors
of the British Dominions in America, not included within the
above limits, i. e. Newfoundland and Labrador.
3d. That American Fishermen shall also be admitted to enter
sucli Bays or Harbors for the purpose of shelter, and of repairing
damages therein, and also of purchasing wood and obtaining water,
under such restrictions only as might be necessary, to prevent
their taking, drying, or curing Fish therein, or abusing the
privileges reserved to them. Such are the stipulations of the
Treaty, and they are believed to be too plain and explicit to leave
14
voom for doubt or misappreliension, or render the discussion of tho
respective riglits of the two countries at this time necessary. Indeed
it does not appear that any conflicting question of right between
them has as yet arisen out of tho differences of opinion regarding
the true intent and meaning of the Treaty. It appeal's, however,
that in the actual application of the provisions of the Convention
(committed on the part of Great Britain to the hands of subordi-
nate agents, subject to and controlled by local legislation) difficul-
ties growing out of individual acts have unfortunately sprung up
from time to time, amongst the most important of which have been
recent seizures of American vessels for supposed violations of the
Treaty. These have been made, it is believed, under colour of a
Provincial Law, 6th Wm. 4, chap. 8, 1836, passed, doubtless,
with a view to restrict rigorously, if not intended to aim a fatal
blow at the Fisheries of the United States on the coast of New-
foundland.
It also appears, from information recently received by the
Government of the United States, that the Provincial authorities
assume a right to exclude the vessels of the United States from
all their Bays, (even including those of Fundy and Chaleur,) and
likewise to prohibit their approach within three miles of a line
drawn frovn headland to headland, instead of from the indents
of the shores of the Provinces ! They also assert the right of
excluding them from British Ports, unless in actual distress, warn-
ing them to depart or get under weigh and leave harbor whenever
the Provincial Custom House or British Naval Officer shall sup-
pose that they have remained a reasonable time, and this without
a full examination of the circumstances under which they may
have entered the Port. Now, the Fishermen of the United States,
believe, (if uniform practice is any evidence of correct construc-
tion) that they can with propriety take fish any where on the
coasts of the British Provinces, if not nearer than three marine
miles to land, and have the right to resort to their Ports for shel-
ter, wood and water, — nor has this claim, it is believed, ever been
seriously disputed, based, as it is, on the plain and obvious terms
of the Convention. Indeed, the main object of the Treaty was
not only to secure to American Fishermen, in the pursuit of their
employment, the right of fishing, but likewise to insure to him as
large a proportion of the conveniences afibrded by the neighboring
Coasts of British settlements as might be reconcileable with the
just rights and interests of British subjects, and the due adminis-
tration of Her Majesty's Dominions. The construction , there-
fore, which has been attempted to be put upon the stipulations of
the treaty by the authorities of Nova Scotia, is directly in conflict
with their object, and entirely subversive of the rights and interests
)n of the
Indeed
between
Dgarding
lowevcr,
nvention
subordi-
difficul-
rung up
ave been
3 of the
our of a
)ubtless,
a fatal
)f New-
by the
thorities
es from
ir,) and
f a line
indents
right of
3, warn-
henever
all sup-
Avithout
ey may
States,
mstruc-
on the
marine
■or shel-
'^er been
terms
aty was
of their
him as
hboring
rith the
dminis-
there-
tions of
conflict
nterests
15
of the citizens of the United States. It is one, moreover, wliicli
would lead to the abandonment, to a great extent, of a highly
important branch of American industry, which could not for a
moment be admitted by the Government of the United States.
The undersigned has also been instructed to acquaint Lord Pal-
merston that the American Government has received information,
that in the House of Assembly of Nova Scotia, during the session
of 1839 — 40, an Address to Her Majesty was voted, suggesting
the extension to adjoining British Colonies of lules and regula-
tions relating to the Fisheries, similar to those in actual operation
in that Province, and which have proved so onerous to the Fisher-
men of the United States : and that efforts, it is understood, are
still making to induce the other Colonies to unite with Nova Sco-
tia in this restrictive system. Some of the provisions of her code
are of the most extraordinary character. Amongst these is one
which declares that any Foreign vessel preparing to fish within
three miles of the coast of any of Her Majesty's Dominions in
America, shall, together Avith the cargo, be forfeited; that in all
cases of seizure, the owner or claimant of the vessel, &c. shall be
held to prove his innocence or pay treble costs — that he shall be
forced to try his action within three months, and give one month's
notice, at least, to the seizing officer, containing everything to be
proved against him, before any suit can be instituted; and also
prove that the notice has been given. The seizing officer, more-
over, is almost wholly irresponsible, inasmuch as he is liable to no
prosecution, if the Judge certifies that there is probable cause ;
and the plaintiff, if successful in his suit, is only to be entitled to two
"pence damages, without costs, and the defendant fined not more
than one shilling. In short, some of these rules and regulations
are violations of well established principles of the Common Law
of England, and of the principles of the just laws of all civilized
nations, and would seem to have been designed to enable Her
Majesty's authorities to seize and confiscate with impunity, Ame-
rican vessels, and embezzle, indiscriminately, the property of Ame-
rican citizens employed in the Fisheries on the Coasts of the British
Provinces. It may be proper also, on this occasion, to bring to the
notice of Her Majesty's Government the assertion of the Provin-
cial Legislature, "that the Gut or Strait of Canso is a narrow
strip of water completely within, and dividing several Counties of
the Province," and that the use of it by the vessels and citizens of
the United States is in violation of the Treaty of 1818. This
Strait separates Nova Scotia from the Island of Cape Breton,
which was not annexed to the Province until the year 1820. Prior
to that, in 1818, Cape Breton was enjoying a Government of its
own entirely distinct from Nova Scotia, the Strait forming the line
4
16
of demarcation between them, and being tlicn, as now, a thorougli-
fare for vessels passing into and out of the (.Tulf of St. Lawrence,
The union of the two Colonies cannot therefore be admitted as vest-
ing in the Province the right to close a passage which has been
freely and indisputably used by the citizens of the United States
since the year 1783. It is impossible, moreover, to conceive how
the use on the part of the United States, common, it is believed,
to all other Nations, can in any manner conflict with the letter or
spirit of the existing Treaty stipulations. The undersigned would
therefore fain hope that Her Majesty's Government would be dis-
posed to meet, as far as practicable, the wishes of the American
Government in the accomplishing, in the fullest and most liberal
manner, the objects which both Governments had in view in
entering into the conventional arrangement of 1818.— lie has
accordingly been instructed to bring the whole subject under the
consideration of the British Government, and to remonstrate
on the part of this Government against the illegal and vexatious
proceedings of the authorities of Nova Scotia against the citizens
of the United States engaged in the Fisheries, and to request that
measures may be forthwith adopted by the British Government to
remedy the evil arising out of the misconstruction, on the part of
the provincial authorities, of their conventional engagements, and
prevent the possibility of the recurrence of similar acts. The un-
dersigned renews to Lord Palmerston, kc.
(Signed) A. STEVENSON.
32, Upper Groves nor street, )
27th March, 1841. S
M^ Loud —
Government Honse,
Halifax, 2Si/i April, 1841.
I transmit a copy of a Report of a Committee on the
Fisheries of Nova Scotia, which Report has been adopted by the
House of Assembly, and to which I have been requested to call
your Lordship's attention.
The greatest anxiety is felt by the inhabitants of this Province
that the Convention with the Americana, signed at London, on the
20th October, 1818, should be strictly enforced ; and it is hoped
that the consideration of the Report may induce your Lordship to
exert your influence in such a manner as to lead to the augmenta-
tion of the force (a single vessel) now engaged in protecting the
the Fisheries on the Banks of Newfoundlandj and the south shore
liorougli-
awrence*
I as vest-
has been
id States
eive how
believed,
letter or
ed would
II be dis-
Vmcrican
it liberal
view in
-He has
nider the
nonstratc
vexations
c citizens
nest that
nmcnt to
le part of
}nts, and
The un-
SON.
17
'of Labrador, and the employment in addition of one or two steam-
ers for that purpose.
The people of this Colony have not been wanting in efforts to
repress the incursions of the natives of the United States upon
their fishing grounds, but have fitted out with good effect some
small armed vessels, adapted to follow trespassers into shoal water,
ov chase them on the seas, (and the expediency of this measure
has been corroborated by the testimony of Capt. Milne, R. N., in
his Report of the Fisheries of Newfoundland,) but finding their
own means inadequate to the suppression of this evil, tlic Kova
Scotians earnestly entreat the further intervention and protection
•of the mother country.
I have the honor to forward herewith, in accordance with a re-
quest made to me in the same Resolutions, a case stated (raising
the necessary questions as to the right of Fishery which the peo-
ple of these colonics possess) for the purpose of being referred to
the Crown Officers in England, in order that the existing Treaties
and the rights of these North American Provinces under them
may be more strictly defined.
I shall feel obliged by your Lordships allowing the opinion of
the Crown Officers to be taken on the said case, and I am autho"
rized by the House of Assembly here to defray any expense that
may be incurred in obtaining such opinion.
(Signed)
The Lord John Russell, &c. &c.
I liave, kc.
FALKLAND.
1841.
je on the
by the
to call
Province
I, on the
is hoped
rdship to
igmenta-
3ting the
ith shore
Case stated by the Right Honorable Viscoinit Falkland^ Lieu-
tenant Crovernor of Nova Scotia, at thercqitcst of the House
of Assembly of that Province, for the purpose of obtaining
the opinion of the Law Officers of the Croicn, in England.
At the Peace of 1783, a Treaty was entered into between the
United States of America and Great Britain, by which the people
of the former country obtained the right ''To take fish on the
<jrand Bank and all other Banks of Newfoundland, the Gulf of
Saint Lawrence, and all other places in the sea where the inhabit-
ants of both countries had been used to fish before, and the liberty
to fish on such parts of the coast of Newfoundland as British
Fishermen used, but not to dry or cure fish there, and on the coasts,
bays and creeks of all other British Dominions in America."
They also obtained liberty to dry and cure fish in any of the
imsettled bays, harbors and creeks of Nova Scotia, Magdalen
Islands and Labrador, but as soon as any of them were settled
18
this liberty was to cease, unless continued by agreement with tire
inhabitants.
The United States declared war against Great Britain in 1812 —
peace vas subsequently proclaimed, and a Convention was entered
into between the two countries, and signed at London, October
20th, 1818, the first article of which is as follows : —
" Whereas diffcrcences have arisen respecting the liberty claimed
by the United States, for the inhabitants thereof to take, dry and
cure fish on certain coasts, bays, harbors and creeks of His Bri-
tannic Majesty's Dominions in America, it is agreed between the
high contracting parties, that the inhabitants of the said United
States shall have forever, in common with the subjects of His Bri-
tannic Majesty, the liberty to take fish of every kind on that part
of the southern coast of Newfoundland Avhich extends from Cape
Ray to the Rameau Islands, on the western and north ;rn 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, harbors and crocks from IMount Jolly, on the southern coasts
of Labrador, to and through the Straits of Bellisle, and thence
northwardly indefinitely, along the coast, without prejudice, how-
ever, to any of the exclusive rights of the Hudson's Bay Company
— and that the American fisherman shall also have liberty forever
to dry and cure fish in any of the unsettled bays, harbors and
creeks of the southern part of the coasts of Newfoundland, here-
above described, and of the coast of Labrador : but so soon as the
same or any portion thereof shall ho settled, it shall not be lawful
for the said fishermen to dry or cure fieh on or within at such
portion so settled, without previous agreement for such purpose
with the inhabitants, proprietors or possessors of the ground. And
the United States hereby renounce forever, any liberty heretofore
enjoyed or claimed by the ii.'habitants thereof, to take, dry, or
cure fish on or Avithin three marine miles of any of the coasts,
bays, creeks or harbors of Ills Majesty's Dominions in America,
not included within the above mentioned limits ; provided, how-
ever, that the American fishermen shall be admitted to enter such
bays or harbors for the purpose of shelter, and of repairing
damages therein, j)urchasing wood, arKl 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 abusing the privileges
hereby reserved to them."
An Act passed in the 59th year of the reign of His late
Majesty George 3, chap 38, entitled, " 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 and Labrador,
with tlitf
1 1812-
8 entered
October
^ claimed
, dry and
His Bri-
Dween the
id United
His Bri-
that part
rom Cape
n coast of
11 Islands,
he coasts,
ern coasts
ad thence
lice, how-
Company
ty forever
irbors and
md, here-
)on as the
be lawful
I at such
h purpose
md. And
heretofore
e, dry, or
the coasts,
America,
ided, how-
mter such
repairing
ater, and
rider such
drying or
privileges
His late
jnable His
ind curing
Labrador,
19
and His Majesty's other possessions in North America, according
to a Convention made between His Majesty and the United States
of America." And in the year 1836, His late Majesty, WilUam
the Fourth, in the 6th year of his reign, by an Order in Council,
assented to and made the clauses of a certain Act of the
Assembly of Nova Scotia, the rules, regulations, and restrictions
respecting the fisheries on the coasts, bays, &c. of that Province,
by the first section of which it is enacted, that any ship, vessel or
boat, which shall be foreign, and not navigated according to the
laws of Great Britain and Ireland, which shall have been found
fishing, or preparing to fish, or to have l)een fishing, witliin three
marine miles of the coasts, bays, creeks or harbors of this Pro-
vince, such ship, vessel or ))oat, and their respective cargoes shall
be forfeited. Nova Scotia is indented with bays, many of which
reach from GO to 100 miles into the interior, such as the Bay of
Fundy, St, Mary's Bay, the Bras d'Or Lake and Manchester
Bay; the land on the shores is entirely British territory, and
Nova Scotia proper is separated from the Island of Cape Breton
by a narrow Strait called the Gut of Canso, in some parts not
wider than three quarters of a mile. In the Bay of Fundy, St.
Mary's Bay, and the Gut of Canso, Americans conduct the Fishery,
and their Fishing vessels pass also througli the latter, or anchor there,
and not only fish, but by using bait, toll the mackerel into deep
waters, thereby injuring the profitable seine fisheries of Fox
Island and Crow Harbor, Arichat, St. Peter's Bay and the other
stations in the neighborhood of Canso which formerly were the most
productive fisheries in Nova Scotia. Tliey also land on the Mag-
dalen Islands, set nets and SAveep seines in the spring of the year,
at a time when the herrings resort to those waters to spawn, thereby
destroying the spawn and young fish, and consequently ruining
the Fishery.
The opinion of the Law Officers of the Crown in England is
requested on the following points :
1st. — Whether the Treaty of 1783 was annulled by the war of
1812, and whether citizens of the United States possess any right
of Fishery in the waters of the Lower Provinces other than ceded
to them by the Convention of 1818, and if so, what right. 2nd. —
Have American citizens the right, under that Convention, to enter
any of the Bays of this Province to take fish, if, after they have
so entered, they prosecute the fishery more tlian three marine
miles from the shores of such Bays ; or should the prescribed dis-
tance of three marine miles be measured from the headlands, at
the entrance of such Bays, so as to exclude them. 3d. — Is the
distance of three marine miles to be computed from the indents of
the coasts of British America, or from the extreme headlands, and
■'ii
20
I
n
what is to bo considered a headland. 4th.^ — Have American vessels,
fitted out for a fishery, a right to pass tlirough the Gut of Canso,
which they cannot do -without coming within the prescribed limits,
or to anchor there or to fish there ; and is casting bait to lure fish
in the track of the vessels fishing, -within the meaning of the Con-
vention. 5th. — Have Amoricau citizens a right to land on the
Magdalen Islands, and conduct the fishery from the shores thereof,
by using nets and seines, or -what right of fishery do they possess
on the shores of tliosc Islands, and -what is meant by the term
shore. Gth. — Have American fishermen the right to enter the
Bays and Harbors of this Province for the purpose of purchasing
wood or obtaining water, having provided neither of these articles
at the commencement of their voyages, in their own country ; or
have they the right only of entering such Bays and Harbors in
cases of distress, or to purchase wood and obtain water, after
the usual stock of those articles for the voyage of such fishing
craft has been exhausted or destroyed. 7th. — Under existing
Treaties, what rights of fishery are ceded to the citizens of the
United States of America, and what reserved for the exclusive
enjoyment of British subjects.
GOVL'RNMENT HoUSE,
Halifax, Sih May, 1841.
My Lord — I have had the honor to receive Despatch No. 45,
dated 9th April, 1841, transmitting a copy of a letter from the
Under Secretary of State for Foreign Affairs, inclosing a copy of
a note from the American Minister, complaining of certain pro-
ceedings of the Colonial Authorities of this Province towards the
vessels and citizens of the llepublic, engaged in fishing on the
coasts of Nova Scotia, and desiring that I will make immediate
inquiry into the allegations made by Mr. Stevenson, and forward
to you a detailed report on the subject. I have lost no time in
obeying your instructions, and beg to submit the following obser-
vations for your consideration : —
The difficulties which exist, and of which Mr. Stevenson com-
plains as growing out of individual acts, are created by the
difference of the interpretation put by the Nova Scotians and
the Americans upon the true intent and meaning of the Treaty
referred to by his Excellency, and the Act of the Imperial Par-
liament, 59, Geo. 3, cap. 38, founded on that Treaty, and more
fully referred to hereafter; and until formal adjudication, result-
ing from the seizure and prosecution of American vessels for abuse
of the privileges ceded to them shall take place, and consecutive
precedents for future guidance be thereby established, it appeara
n
21
I vessels,
:' Canso,
d limits,
lure fish
:ho Con-
l on the
thereof,
r possess
ho term
jnter the
rchasing
5 articles
ntry ; or
irbors in
er, after
I fishing
existing
13 of the
exclusive
1841.
No. 45,
trom the
% copy of
tain pro-
ards the
on the
nmediate
. forward
time in
ig obser-
son corn-
by the
lans and
le Treaty
rial Par-
and more
Q, result-
for abuse
nsecutive
t appears
probable that doubts may and \y\\\ arisG as to the interpretation
to be borne by the said Treaty.
It is true that some seizures have been made of American Fish-
ing vessels under the Provincial Act, 0, Wm. 4, referred to by
the American Minister, but his Excellency has fallen into much
misapprehension as regards the character of tliis law, the extent
of its operation, and the nature of the seizures made under it.
The Act recites the Convention and the Imperial Statute •iO, Geo.
3, cap. 38, before mentioned, and, in describing the encroachments
on the coasts of the Province, Avhich it was its oltject to prevent,
it will be found to be framed in perfect conformity with the letter
and spirit of that statute, while the provisions by which it seeks
to eifect the object in vicAV, arc borrowed from the Imperial enact-
ments relating to Trade and Navigation. Its operation is limited,
as of necessity it must be. to Nova Scotia, and therefore it could
not have been passed, as assumed by Mi'. Stevenson, with a view
to restrict or destroy the Fisheries of the United States on the
Coast of Newfoundland, and for the same reason this Act does not
aiFect the Bay of Chaleurs, also mentioned by his Excellency,
In point of fact, I have not been able to learn that any seizures
have been made when the vessels have not been within the distance
prescribed by the statute, or considered so to be : although it is
true the Bay of Fundy as well as smaller Bays on the coast of
this Province, is thought by the Law Officers in the Province to
form part of the exclusive territory of the Crown, under the autho-
rity of a principle of the law of nations laid down by Grotius, and
adopted by English jurists — Vide Chitty's Commercial Law, vol. 1,
page 90.
The complaint that the Provincial authorities assume the right
to prohibit "the approach of American fishing vessels within
three miles of a line draAvn from headland to headland, instead of
from the indents of the shores of the Provinces," is another exem-
plification of the difference I have stated to exist in the interpreta-
tion put upon the Treaty by the sul)jects of the the tAvo Governments
— the following words of the Convention ' ' the United States
renouncing any liberty before enjoyed by their citizens to take
fish within three marine miles of any coasts, bays, creeks or har-
bors of the British Dominions in America, not included in the
above limits, i. e. Newfoundland and Labrador," appearing to the
authorities here to bear them out in the assumption of such right,
whereas the citizens of the United States maintain the direct con-
trary. On this point the Law Officers of the Crown in the Colony
express themselves very strongly, both on the general principle of
international law and the letter and spirit of the Convention. They
deem it to be a settled rule that the shore of a State lying on the
1
f
ll
I
"I!
22
lw»a ia tloterniined by a lino drawn from the projecting headlands,
not by iblloAving the indentations of the coast, vide Ist Chitty, 99
and 100, and therefore tliink it a necessary consequence that the
three miles fixed upon by the Convention should always bo mea-
sured from such a lino. Hut they also say, the words of the Con-
vention would put an end to the question, could any be raised on
the general rule.
The language used in the convention (1st article) is "three
marine miles of any of tlie coasts, bays, creeks or harbors of His
Britannic Majesty's Dominions in America"' — and it is considered
that three miles from a bay. crock or harbor, must mean three
miles from any part of it, and consequently from its entrance or
mouth, or in other words, from a line drawn from its projecting
headlands. The Convention, howevoi-, docs not stop here. — It
provides '• tliat Ameri(!iui fishermen may enter such bays or har-
bours for the purpose of shelter, repuiving damages, and obtaining
wood and water, nnd for no other purpose Avhatever. But they
shall be under such restrictions as may be necessary /o pre-
vent their tolcino;, dry'niri-, or ruri/fQ' Jis/t, f herein, or in any
other manner whatever abusing the privileges hereby reserved to
them." This language is considered conclusive against any pre-
tence that American fishermen should have the right to enter any
bays or harbors in Her JMajesty's North American Colonies,
excepting only for shelter, repairing damages, and providing wood
and water. Indeed, the claim now set up, there is reason to
believe, is new, as in point of practice, the American fishermen,
when questioned for being within the waters of this Province, have
uniformly resorted to the pretext aftbrded by the Convention, viz :
the want of shelter, repair, or wood and water — and never, it i3
believed, have asserted the right to fish within the bays or harbors
of the coasts. This question is of extreme importance to Nova
Scotia, as from the indented nature of its coasts, the claim set up
by the American Minister would lead to results most injurious to
the Province.
The right to resort to the ports of this country for shelter, wood
and water, which Mr. Stevenson conceives has never been seriously
disputed, has always been frankly conceded in cases of real distress
and unaffected calamity, but never when such right was supposed
to be exercised for the purpose of evading the British Commercial
regulations. Thus, in the case of the Nabby, seized in 1818, by
Her Majesty's Ship Saracen, and prosecuted in the Admiralty
Court of this Province, it was decided that vessels are bound to
have a sufficient quantity of wood, water and provisions on board
for the voyage wluch they are engaged in — a scarcity of either of
I
23
have
•)
VIZ :
er, it is
these articles, arising from design ur neglect, not necessarily o|)en-
ing British Ports to any adventurer seeking to contravene tlie law.
The American Minister states in his Despatch, that the Fisher-
men of the United States believe that they (;;in with propriety take
fish any where on the coasts of the British I'lovinces, if not nearer
than three marine miles to land. This, from the grn<!rii\ context
of Mr. Stevenson's note, evidently means Avitliin three miles f^f tho
indents of the shore : the uniform j)raetii:i Uuded to l^y that gen-
tleman is a practice ■which has ahvnys been rvsi.-ited by the autliori-
ties of this Colony, although it is difficult, Avith an txionded coast,
and inadecjuate means of j)rotection, entirely to suppress it.
Mr. Stevenson goes on to say, " that the construction which has
been attempted to be put upon the stipulations of the Treaty, by
the authorities of Nova Scotia, is directly in conflict with their ob-
ject, and entirely subversive of the rights and interests of the citi-
zens of the United States ;" again, " that some of the provisions
of her code arc of the most extraordinary character," and, towards
the conclusion, '• that some of these rules and regulations are vio-
lations of the well established principles of the common law of Eng-
land, and of the principles of the just laws of all civilized nations,
and would seem to have been designed to enable Ilcr Majesty's
authorities to seize and confiscate ^vith impunity, American vessels,
and embezzle, indiscriminately, the property of American citizens
employed in the Fisheries on the coasts of the British Provinces."
This is very strong language, and if justly applicable at all, is ap-
plicable to the statute [)\), (jeo. 3d, passed one your after the sign-
ing of the Convention, and with the ex])ress design of carrying out
its provisions, as follows : " and it shall not be lawful for any per-
son or persons, not being natural born su]»jects of His IMajesty, in
any Foreign ship, vessel or boat, other than such as shall be navi-
gated according to the law of llio United Kingdom of Great Britain
and Ireland, to fish for, or to take, dry or cure any Fish of any
kind whatever, within three marine miles of any coasts, bays,
creeks or harbors whatever, in a)iy part of Ilis Majesty's Domi-
nions in America, not included within the limits specified and de-
scribed in the first article of the said Convention, and that if any
such foreign ship or vessel, or any persons on l^oard thereof, shall
be found fishing, or preparing to fish, within such distance of such
coasts, bays, creeks or harbors, within such parts of the aforesaid
dominions in America as are out of the said limits as aforesaid, all
such ships, vessels and boats, together with their cargoes, and guns,
ammunition, tackle, apparel and stores, shall be forfeited, and shall
and may be seized, taken, sued for, prosecuted, recovered, and con-
demned, by such and the like ways, means and methods, and in the
same courts as ships, vessels and boata may be conclemnecl for any
24
oflfence against any laws relating to the Revenue of Customs," &e.
Thus, the very words " preparing to fish," to strongly animad-
verted on by Mr. Stevenson, are copied from an Imperial Act
which has been twenty-three years in force, and which, inasmuch
as it has relation to American interests of the greatest importance,
and sprung out of a Convention concluded with a view to the esta-
blishment of those interests, could not but be well known to the
United States Government.
The 8th section of 0, Wm. 4, which provides that the owner
of the vessel seized shall be held to prove his innocence, does not
involve the payment of treble costs in case of failure ; and Mr.
Stevenson is, I am assured by the Crown officers here, in error,
with respect to the interpretation he has given to it.
Mr. Stevenson objects to the seizing officer being " liable to no
prosecution, if the Judge certifies that there is probable cause of
seizure," and complains that " the Plaintifi^, if successful in his
suit, is only entitled to two pence damages, without costs, and the
Defendant can be fined no more than one shilling." This is an
imperfect statement of the clause, inasmuch as the Plaintiff is enti-
tled to recover the value of his goods ; but, in case proliable cause
is certified, he can only, in addition, recover tAvo pence damages.
The Province has, however, transcribed from the Imperial Sta-
tute of 6th, Goo. 4, cap. 114, entitled, An Act to regulate the
Trade of the British possessions abroad ; and therefore, if it be in
reality a violation of the well established principles of the common
law of England, and of the principles of the just laws of all civi-
lized nations, has been long submitted to by British subjects, and
could not have been designed by the Assembly of Nova Scotia,
'• to enable Her Majesty's authorities to seize and confiscate, with
impunity, American vessels, and embezzle, indiscriminately, the
property of American citizens."
Her Majesty's exclusive property and dominion in the Strait of
Canso is deemed mrintainable upon the principles of international
law, already referred to, and which, it is considered, will equally
apply, whether the shores on each side form parts of the same
Province, or of different Provinces belonging to Her Majesty.
This Strait is very narrow, not exceeding in some parts, one mile
in breadth, as to be seen on the Admiralty chart ; and its naviga-
tion is not necessary for communication with the space beyond,
which may be reached by going round the Island of Cape Breton.
Having noticed successively the allegations of the American
Minister, I may be permitted to make one or two remarks on the
general tenor of His Excellency's communication, which goes to
charge the Legislature of Nova Scotia with a design to subvert the
rights and interests of Americsm citizens, in contravention of the
25
s," &c.
mimad-
al Act
asmuch
)rtance,
he esta-
L to the
I owner
oes not
md Mr.
I error,
le to no
ause of
1 in his
and the
is is an
' is enti-
le cause
lages.
'ial Sta-
ate the
it be in
3omnion
all civi-
cts, and
IScotia,
e, with
ly, the
5trait of
national
equally
le same
lajesty.
le mile
naviga-
)eyond,
Breton.
nerican
on the
'oes to
ert the
of the
Treaty of 1818. — It appears to mc that the Provincial Legislature
cannot be accused of any such intention. It is manifest that nei-
ther the statute of the Imperial Parliament, nor that of the Colo-
nial Legislature can extend the terms of the Treaty itself, or ren-
der them more comprehensive. Its true construction, according to
tlie law of nations, must govern those to be affected by it — and the
Colonists, aware of this, and conceiving themselves wronged by
the interpretation given to the Treaty by their neighbors of the
United States, have long been, and now are, anxious to obtain the
opinion of the most eminent Jurists on the subject, not seeking for
any forced construction of the Treaty to give them privileges not
contemplated at its execution, but merely to protect themselves
from that which, be they riglit or Avrong, tliey now deem an
infringement of tlieir rights. The Avholc course of their legisla-
tion with regard to this matter, appears to prove this. In the
Laws Avhich they have made for the protection of their Fisheries,
which are in no case more extensive than the Imperial Statute, 59,
Geo. 3, there is not only notliing new, but they have endeavoured,
as I have shewn, to adopt on all occasions the principles of Impe-
rial Legislation, and ha\e copied even the words of Imperial Acts.
I have now, I trust, cstalilishcd, that if the interpretation put
on the Treaty by the inhabitants of Nova Scotia is an incorrect
one, they are sincere in their belief of tlie justice and truth of
that interpretation, and most anxious to have it tested by capable
authorities ; and further, that if tlie laws passed by the Provincial
Legislature, are leaily of the oppressive nature they arc asserted
to be by Mr. Stevenson, they were enacted in the belief that the
framers of them Avere doing nothing more than carrying out the
views of the Home Government, as to the mode in which the
Colonists should protect their own dearest interests.
(Signed)
Tlie Lord John Russell, &c. &c.
I have, &c.
FALKLAND.
Doiniin^ Street. 2St/t November, 1842.
My Lord —
I have the honor to acknowledge the receipt of your Lord-
sliip's Despatch of the 11th July last, enclosing copies of two
reports made by Committees of the House of Assembly of Nova
Scotia, complaining of the encroachments of American citizens on
the Fisheries of British North America, and praying the establish-
ment of a general code of regulations for their protection — together
with a copy of a Case prepared by you in April, 1841, to be sub-
mitted to Her Majesty's Law Officers, raising certain questions, as
4
I
ii
Ijl!
26
to the lights of fishery conferred by the Treaties on the suljjet't<
on British and American Fishermen respectively. I enclose, for
your information, a copy of the Report, which, on the 30th August,
was received from the Queen's Advocate, and Her Majesty's Attor-
ney General, on the Case drawn up by your Lordship ; — since that
date the subject has frequently engaged the attention of myself
and my colleagues, with the view of adopting further measures, if
necessary, for the protection of British interest in accordance with
the law, as laid down in the enclosed Report. We have, however,
on full consideration, come to the v conclusion, as regards the Fish-
eries of Nova Scotia, that the precautions taken by the Provinciali
Legislature appear adequate to the purjMJsc, and that being now
practically acquiesced in by the Americansj no further measures
are required.
I have, &c.
(Signed) STANLEY.
The Right Honorable Viscount Falkland, kc. &c.
COP Y.
Doctors Commons, Will AugHHf, 1841.
MV LOKD—
We are honored with your Lordship's commands, signified
in Mr. Backhouse's letter of the 26th of May, stating that he
was dii-ected to transmit to us the accompanying letter from the
Colonial Office, enclosing a copy of a Despatch from the Lieu-
tenant Governor of Nova Scotia, together with an Address to Her
Majesty from the House of Assembly of that Province, complain-
ing of the continued encroachments of American Fishermen on
the fishing ground of Nova Scotia and the adjacent Colonies, and
praying that Her Majesty would establisli by an Order in Council,
general regulations for the protection of the Fisheries, according
to the code annexed to the Address.
We are also honored with Mr. Backhouse's letter of the 8th
June, stating that he was directed to transmit to us a copy of a,
letter from the Colonial Office, together with a copy of a Despatch
from the Lieutenant Governor of Nova Scotia, enclosing a Case
for opinion as to what rights have been ceded to the citizens of the
United States of America, and as to what rights have been exclu-
sively reserved to Her Majesty's subjects, and to request that we"
would take the papers into consideration, and report to your Lord-
ship our opinion upon the several questions stated in the Case above
mentioned.
Query Ist. — In obedience to your Lordship's commands, we
have taken these papers into considers tion. and have the honor to
:
i
27
subject^
lose, for
August,
9 Attor-
nce that
f myself
fcsures, if
nee ■\vitli
[lowever,
he Fish-
rovincial'
eing now
mcasurctf
LEY.
1841.
signified
that he
from the
the Lieu-
ss to Her
complain-
rmen on
)nies, and
Council,
according
^f the 8th
copy of Or
Despatch
ig a Case
ens of the
en exclu-
it that we'
our Lord-
a»e above
lands, we
honor to
;
i
report, that we are of opinion that the Treaty ul' 17«ii was
unnulled by the wnr of 1812 ; and we are also of opinion, that the
rights of Fishery of the citizens of the United States must now b(?
considered as defined and regulated by the Convention of 1818 ;
and with respect to the general question, "i/" so, what right, ''^
we can only refer to the terms of the Convention, as explained and
elucidated by the observations which will occur in answering the
other specific queries.
2nd. — Except within certain defined limits to which the query
put to us does not apply, we are of opinion, that by the terms of
the Treaty, American citizens are excluded from the right of fish-
ing within three miles of the coast of British America ; and that
the prescribed distance of three miles is to be measured from the
headlands or extreme points of land next the sea of the coast, or
•of the entrance of the Bays, and not from the interior of such
Bays or Indents of the coast, and consequently that no right
exists on the part of American citizens, to enter the Bays of Nova
Scotia, there to take fish, although the fishing being within the
Bay, may be at a greater distance than three miles from the shore
of the Bay, as we are of opinion that the term headland is used
in the Treaty to express the part of the land we have before men-
tioned, excluding the interior of the Bays and the indents of the
•coasts.
4th. — By the Treaty of 1818 it is agreed, that American citi-
zens should have the liberty of fishing in the Gulf of St. Law-
rence, within certain defined limits, in common with British
subjects ; and such treaty does not contain any words negativing
the right to navigate the passage of the Grut of Canso, and there-
fore it may be conceded that such right of navigation is not taken
away by that Convention ; but we have now attentively considered
the coarse 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, inde-
pendently 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
the Americans, we are also of opinion that that Convention did not
either expressly or by implication, concede any such right of using
or navigating the passage in question. We are also of opinion, that
casting bait to lui'e fish in the track of any American vessels navi-
gating the passage, would constitute a fishing within the negative
terms of the Convention.
5th. — With reference to the claim of a right to land on the
Magdalen Islands, and to fish from the shores thereof, it must be
observed, that by the Treaty, the liberty of drying and curing
i
I
'^
28
fiali (purposes wliicli could only he accomplished l»y landinij;) in any
i
'i
it-i?
I'^f
:n
ihcY
Newfoundland,
unsettled
and of the coast of Labrador, is specifically provided for; but
such liberty is distinctly negatived in any settled Bay, &c. and it
must therefore be inferred, that if the liberty of landing on the
shores of the Magd^ilen Islands had been intended to be conceded,
such an important concession -svould have been the subject of
express stipulation, and would necessarily have lieen accompanied
■with a description of the inland extent of the shore over which
such liberty was to be exercised, and whether in settled or unsettled
parts, but neither of these important particulars are provided for,
even by implication, and that, among other considerations, leads us
to the conclusion that American citizens have no right to land or
conduct the Fishery from the shores of the Magdalen Islands.
The word "shore " does not appear to ])e used in the Convention
in any other than the general or ordinary sense of the word, and
must be construed witli reference to the liberty to be exercised
upon it, and would therefore comprise the land covered Avith water,
as far as could be available for the due enjoynient of the liberty
granted.
6th. — By the Convention, the liberty of entering the Bays and
Harbours of Nova Scotia for the purpose of purchasing Avood and
obtaining Avater, is conceded in general terms, unrestricted by any
condition expressed or implied, limiting it to vessels duly provided
at the commencement of the voyage ; and Ave are of opinion that
no such condition can be attached to the enjoyment of the liberty.
7th. — The rights of Fishery ceded to the citizens of the United
States, and those reserA'^ed for the exclusive enjoyment of British
subjects, depend altogether upon the CouAention of 1818, the only
existing Treaty on this subject betAveen the tAvo countries, and the
material points arising thereon have been specifically ansAvered in
our replies to the preceding queries.
We have, kc.
,«.. ,. J. DODSON.
V^igi^etU TIIOS. WILDE.
Viscount Palmerston, K. B., &c. &c.
In 1842 the House of Assembly adopted a lieport, asserting that
the Convention excludes American Vessels engaged in the Fishery
from passing through the Strait of Canso. — Vide Journals, Appen-
dix No. 75.
1843, the House of Assembly adopted a Report, strenuously
recommending protection.— Vide Journals, Appendix 74.
1844, the Report of the Assembly recommends the extension of
90
111 any
ndland,
)Y[ but
. and it
on the
needed,
[)ject of
opanied
r whicb
nsettled
ded for,
leads us
land or
Islands,
ivention
)rd. and
xercised
ii water,
) liberty
lays and
ood and
by any
provided
lion that
liberty.
United
British
the only
and the
rered in
J.
;de.
;ing that
Fishery
,Appen-
niuously
msion of
tlie Fishery Hejrnhitionp io tlio otliov Pi'ovinee;* and M:iu-d:dt'U
Islands — Vide Appendix. N(i, (iS.
1845, a similar Report. A))pendi.\'. No. 87.
1846, Report, Ap]»endix. No. ST.
1847, Report, Apj^ondix No. 7o.
1848, Re])ort of iVsscnibly I'ofors to tlie opinion of tlio (.h'own
Officers of England, and recommends tlie (Jovcrnment to exercise
a legal right over the Strait of Canso, Ijy taxing Amcricuu tonnage
— Vide Appendix. No. 81 >.
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'<l Ity him to tlie IjCgiHljitme in
1842. Tliis note contains the Ibllowin"!; observations in respect of
the navigation of tlie (jut of (Janso : ' It may lie jiroper also, on
this occasion, to bring to tlio notice of Ilcr Majesty's Government
the assertion of the Provincial Legislature ' that the Gut or Strait
of Canso is <a narrow strip of water, completely Avithin and dividing
several Counties of the Province,' and that the use of it by the
vessels and citizens of the United States is in violation of the Trea-
ty of 1818. This Strait separates Nova Scotia from the Island of
Oape Breton, w^hicli was not annexed t<» the Province until the year
1820. Prior to tliat, in 1818. Cape Breton was enjoying a Go-
vernment of its own, distinct from Nova Scotia, the Strait forming
the line of demarkation between them; and being then, as now, a
thoroughfare for vessels passing into and out of the Gulf of Saint
LaAvrence. The union of the two Colonies cannot, therefore, be
admitted, as vesting in the Province the right to close a passage
which has been freely and indisputably used by the citizens of the
United States since the year 1783. It is impossible, moreover, to
conceive how the use on the part of the United States of the right
of passage, common, it is believed, to all nations, can in any manner
conflict with the letter or spirit of the existing Treaty stipulations.
"The questions having been previously forwarded by Lord Falk-
land to Lord John Russell, Lord Falkland, on the 8th May, 1841 ,
addressed to Lord John Russell a very able despatch on the general
subject of the Fisheries, in which previous Provincial Legislation
was satisfactorily vindicated from charges made by Mr. Stevenson
for the seizure, improperly, of American fishing vessels ; and clearly
showed that the Provincial Legislation was founded upon and sus-
tained by, previous Imperial Acts upon the same subject ; and
which despatch most completely silenced any further complaints of
a like nature. This despatch also refers to the navigation of the
Gut of Canso, upon wliich Lord Falkland therein remarks, in an-
swer to Mr. Stevenson : 'Her Majesty's exclusive property and
dominion in the Strait of Canso is deemed maintainable upon the
principles of international law already referred to, and which it is
considered will equally apply, whether the shore on each side form
parts of the same Province, or of different Provinces belonging to
Her Majesty. This Strait is very narrow, not exceeding, in some
parts, one mile in breadth, as may be seen on the Admiralty
Chart ; and its navigation is not necessary for communication with
the space beyond, which may be reached by going round the island
of Cape Breton.'
"Lord Falkland again says: ' I have now, I trust, established,
that if the interpretation put upon the Treaty by the inhabitants
of Nova Scotia is an incorrect one, they arc sincere in their belief
Si
i
of the justice and truth of thut interpietatioji, nlul most alixioUs U)
have it tested by capable authorities ; and further, tliat if the hi\>>
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.
%: