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rupted by British cruisers, while engaged in taking and curing fish in the Bay of Fundy; and was accompanied by a similar demand of indemnity and reparation. The British chargé d'affaires, in answer, promised to institute an inquiry into the circumstances of the case, invited the United States to a similar proceeding on their 119 part, and closed with a remonstrance against the act of American citizens who, with an armed force, had rescued the seized property from the custody of British officers.
In January, 1836, the British Government became, in its turn, the complainant. Its chargé d'affaires at Washington, remonstrated against the encroachments of American citizens upon the fishing grounds secured exclusively to British fishermen by the convention of 1818. The result of this complaint was a circular letter addressed by the Secretary of the Treasury to the officers of customs in districts where vessels are licensed for the fisheries, directing them to impress the crews of fishing vessels with a sense of the treaty obligations of their Government, and of the dangers to which they exposed themselves by encroaching upon British rights. The recent cases of seizure constitute the last instance of alleged violation of rights, and the charge is laid to the British account. The attention of this department was first called to the subject by a reference by the Treasury of a letter from B. and J. M. Leavitt, of Boston, asking for information as to the existing treaty stipulations regulating the matter. The inquiry was answered by a reference to the first article of the convention of 1818. On the 3d July the Secretary of the Treasury referred to the department a communication from the collector of Boston, transmitting a report from the naval officer who had been despatched to Nova Scotia with directions to inquire into the alleged causes of the seizure and detention of American fishing vessels. The report, after alluding in general terms to some of the seizures, refers, with regard to the particulars of four of the cases then pending before the court of vice admiralty of Halifax, to an abridged statement, furnished by the consular agent of the United States at Yarmouth, of the depositions of the masters and crews of three American fishing schooners, viz: the "Independence," the "Magnolia," and the "Java," and the fishing boat "Hart." The statement, with the report accompanying it, is annexed, and contains the most detailed information in the possession of this department in relation to the "nature and circumstances of the cases.'
According to that statement, the Independence is alleged to have anchored in the Tusket islands, and, while there, hired her nets to an English fisherman, for the purpose of taking fish on shares. The crew state that they were forced to anchor there by stress of weather; and that their nets had been lent, and not hired, for which they had received a few herrings.
The Magnolia is charged with having been engaged in fishing while at anchor in the Tusket islands, and with the fact having been acknowledged by the crew. This is denied; and the reason alleged for anchoring within British grounds is, want of shelter, wood and water.
The charge against the Java, of having been engaged in taking fish in the Tusket islands, is admitted by the master.
Against the Hart it is alleged that her crew were seen cleaning fish on board, while at anchor in the islands, and that her master
had acknowledged that he had procured a quantity of herrings. The taking of fish is denied; and the fact of the crew having been seen cleaning fish is explained by stating that two barrels of herrings had been received from a British fisherman in recompense of services rendered.
On the 20th of July, a letter from the consul of the United States at Halifax, dated the 27th of June, was received at this department, informing it of the seizure of the four vessels above referred to, and of seven others, viz: the "Shetland," seized at Whitehead, near Canso; the "Charles," at Canso; the Mayflower," and a schooner name unknown, at Guysborough; the "Battelle," "Hyder Ally," and "Eliza," at Beaver harbor.
The "Shetland" was seized on the ground of the master having sold to a lad who came on board, while the vessel lay at anchor in the harbor of Whitehead, whither she had been forced by stormy weather, a pair of oil-cloth trousers, and small quantities of tea and tobacco. The master states that in doing so he yielded to the importunities of the lad, whom he believes to have been sent purposely to entrap him into an attempt at smuggling. He denies having caught fish within British limits.
With the exception of the "Eliza," which was likewise compelled to make a harbor by bad weather, and the crew of which deny having taken fish within the British limits, or having sold or bartered any articles whatever, the particulars of the cases are not given; but in communications addressed by the consul to the Lieutenant Governor of Nova Scotia, asking his interference in behalf of the owners of the seized vessels, he urges the exercise of indulgence and mercy, on the ground that some of the sufferers had only erred in a slight degree either from ignorance or temptation, and without intention to violate regulations, of the existence of which they might, perhaps, never
The communications from the consul to the Lieutenant Governor of Nova Scotia, having been referred to the advocate general of the Province, underwent examination, and a copy of his report accompanies the consul's letter to the department. In this document, the advocate general denies the power of the Governor to interfere or stay proceedings in the court of vice-admiralty, which alone has jurisdiction over the subject matter. He adds, that several of the cases had been commenced during his absence, and the evidence had not yet been submitted to him.
Commissions had been issued to take depositions in others. Three vessels had been proceeded against by him, and the examination had proved that the crews of two of them had actually taken fish with set nets in Beaver harbor. In all other cases, where the evidence had not been submitted to him it was to be called for before any further proceedings were had. He concludes by stating that, where the evidence is not complete, no decree will be urged by default, until ample time and opportunity be afforded for defence, upon the most favorable terms that by law can be granted; and that in any case where there shall not appear good cause of prosecution, he will exercise his own discretion in releasing the property.
From these statements it will appear that the only cases of seizure of which anything is known at the department, not being made on the coasts of Newfoundland or Labrador, occurred at
120 places in which, under the convention of 1818, the United States had forever renounced the right of their vessels to take, dry and cure fish; retaining only the privilege of entering them for the purposes of shelter, repairs, purchasing wood and obtaining water, and no other. In the absence of information of a character sufficiently precise to ascertain either, on the one side, the real motives which carried the American vessels into British harbors, or, on the other, the reasons which induced their seizure by British authorities, the department is unable to state whether, in the cases under consideration, there has been any flagrant infraction of the existing treaty stipulations. The presumption is, that if, on the part of the citizens of the United States, there has been a want of caution or care in the strict observance of those stipulations, there has been, on the other hand, an equal disregard of their spirit, and of the friendly relations which they were intended to promote and perpetuate, in the haste and indiscriminate rigor with which the British authorities have acted.
Under the supposition that many of the seizures had been made upon insufficient grounds, and in order, if possible, to preclude for the future the recurrence of such proceedings, the acting Secretary of State, in a note dated the 10th of July, called the attention of the British minister to the cases of seizure which had come to the knowledge of the department, and requested him to direct the attention of the provincial authorities to the ruinous consequences of the seizures to the owners of the vessels, whatever might be the issue of the legal proceedings instituted against them; and to exhort them to exercise great caution and forbearance in future, in order that American citizens, not manifestly encroaching upon British rights, should not be subjected to interruption in the pursuit of their lawful avocations. The President's directions, that a vessel of war of suitable force should be held in readiness to proceed to the coasts of the British provinces having been communicated to the Secretary of the Navy, an answer has been received that the schooner Grampus, now lying at Norfolk, would be prepared to proceed to that quarter at a moment's notice; and that, should it be the desire of the President that a vessel of higher class should be employed on that duty, a sloop of war can be detailed from the station at Pensacola so as to be ready to sail at the end of this month.
A. VAIL, Acting Secretary of State. To the PRESIDENT OF THE UNITED STATES.
No. 68.-1839, September 28: Letter from Mr. James Primrose, United States Consul at Pictou, Nova Scotia, to Sir R. D. George, Provincial Secretary.
CONSULATE OF THE UNITED STATES OF AMERICA, Pictou, September 28, 1839. SIR: It becomes my duty to call your attention to the enclosed copy of an affidavit of the master of the American brig Emerald.
The conduct of the collector of light-dues at the Strait of Canso towards vessels of the United States bound to this port, continues to
be characterized not only by a total want of courtesy, but very frequently assumes the aspect of open and wanton aggression.
In the hope of receiving your reply to my note of the 15th of July, I have refrained from multiplying complaints; but the nature of the outrage committed on the Emerald requires that I should make the government of this Province acquainted with it.
With great respect, I have the honour to be, sir, your most obedient and humble servant.
JAMES PRIMROSE, Consul of the United States of America.
Hon. Sir R. D. GEORGE,
Provincial Secretary, &c., Halifax.
No. 69.-1839, November 9: Letter from Sir Rupert D. George, Provincial Secretary, to Mr. James Primrose, United States Consul at Pictou, Nova Scotia.
PROVINCIAL SECRETARY'S OFFICE, Halifax, November 9, 1839. SIR: The attention of the Lieutenant Governor and her Majesty's Council having been directed, by your letters of the 15th July and 26th September last, to the mode of collecting light-duties from American vessels in the Gut of Canso, that subject has received the best consideration of the board; and I am directed to acquaint you, with reference to the particular cases which you have brought under his Excellency's notice, that the taking of merchandize or ship's stores, instead of money, in payment of light-duty, (as in some few cases appears to have been done,) is, under any circumstances, unauthorized on the part of the collector. The collectors have accordingly been informed that such a proceeding is irregular and unlawful, and must on no account be hereafter resorted to; and it has been further intimated to them, that when the light-duty has been incurred, and its payment after demand has been refused or neglected, the vessel is liable to seizure; but that the law does not give warrant for the use of violence in bringing vessels to in cases where no previous demand has been made; and that the exhibition of fire-arms, while in the performance of their office, is highly reprehensible. The collectors are also instructed not to demand light-duty from vessels bound to Pictou, unless they come to anchor in the strait.
With respect to the concluding paragraph of your letter of the 15th of July, I have it in command to remark that His Excellency cannot admit the character given to the Gut of Canso as a part of the high seas until recognized by some authoritative decision, as the correctness of its application to that narrow passage lying entirely between the lands of this province may be questionable, more especially as an open communication around the eastern end of the island of Cape Breton is to be found on the high seas to the Gulf of Saint Lawrence, or any other point to which the State of Canso can be made. subservient.
I take this opportunity to state that the case of the American schooner Amazon, which was the subject of your letter of the 26th
August, remains under consideration; all the information with re-
JAMES PRIMROSE, Esq.,
No. 70.-1839, December 29: Letter from Lieutenant Paine (United States Navy) to Mr. Forsyth (United States Secretary of State).
WASHINGTON, December 29, 1839.
SIR: In my late cruise on the coasts of Her Britannic Majesty's provinces, I found the convention of 1818, on the subject of fisheries, so variously construed, that I deemed it proper to address the Navy Department on the subject-the letters to which I alluded in conversation with you.
Avoiding unnecessary repetitions, I will endeavor to give, in the following, all that seems of importance in a more concise form.
I visited the seat of government of Nova Scotia, and that of Prince Edward's Island, and St. John's, the principal city of New Brunswick, where I communicated with the principal government officers, with our consuls, with Admiral Sir Thomas Harvey, and the commanders of the British vessels of war with whom I met; as also with the collectors of Portland and Eastport, Maine, and such other persons as from their situations seemed qualified to impart information on the questions arising.
I had believed the vessels seized had been generally guilty of systematic violation of the revenue laws; but I was soon led to suspect that this was not the cause, so much as a pretence, for seizing.
A vessel once seized must be condemned, unless released as a favor; because the owners will not claim her under the present laws of Nova Scotia, where the only seizures have taken place.
The questions on which dispute may arise, are
1st. The meaning of the word Bay, in the convention of 1818, where the Americans relinquish the rights before claimed or exercised, of fishing in or upon any of the coasts, bays, &c., of Her Britannic Majesty's provinces, not before described, nearer than three miles.
The authorities of Nova Scotia seem to claim a right to exclude Americans from all bays, including those large seas such as the Bay of Fundy and the Bay of Chaleurs; and also to draw a line from headland to headland; the Americans not to approach within three miles of this line.
The fishermen, on the contrary, believe they have a right to work any where, if not nearer than three miles to the land.
The orders of Admiral Sir Thomas Harvey, as he informed me, are only to prevent their fishing nearer than three miles.
According to this construction, Americans may fish in the Bay of Fundy, Bay of Chaleurs, and the Bay of Miramichi; while their right would be doubtful in Chedabucto Bay, and they would be prohibited in the other bays of Nova Scotia.