On that part of the coast of Newfoundland where the right of fishing is relinquished, there are several bays in which fisheries may be prosecuted at three or more miles from the land. On that part of the coast of Newfoundland where the right of taking and curing fish is secured by the convention of 1818, it is to be feared that troubles may arise with the French, who assume an exclusive right, and who have gone so far as to drive off even English fishermen. 122 The right of fishing on the shores of the Magdalen Islands, though sometimes questioned, seems so secured by the convention of 1818 that I think it unnecessary to lengthen this communication by further discussing it. 2d. The right of resorting to ports for shelter, and to procure wood and water. The provincial authorities claim a right to exclude vessels, unless in actual distress; and the subordinates, as well as the naval forces of her Majesty, warn, as they term it, vessels to depart, or order them to get under weigh and leave a harbor when they suppose a vessel has lain a reasonable time; but this is often done without examining or knowing much of the circumstances under which the vessel entered, or how long she has been in port. The English men-of-war also endorse the papers of the fishermen, as if they had violated the blockade, or committed some other illegal act. The fishermen claim a right, under the convention, to resort to the ports for shelter whenever from rough weather, calms or fogs, they cannot prosecute, without risk or inconvenience, their labors at sea; and the navigation on some parts of the coast is, on account of the extraordinary tides, as perilous in calms and fogs as in rough weather. The Nova Scotia Courts would exact that Amercan fishermen shall have been supplied, on leaving home, with wood and water for the cruise; but the Americans believe they can, by the terms of the convention, resort to the ports to procure wood and water at their convenience during the cruise; and they do not, on account of the inconvenience, as well as the high price, take on board either watercasks or wood for the whole cruise. If the grounds assumed by the British provincial authorities be carried out, it will be in their power to drive the Americans from those parts of the coast where are some of the most valuable fisheries: whereas, if the ground maintained by the Americans be admitted, it will be difficult to prevent their procuring articles of convenience, and particularly bait; from which they are precluded by the convention, and which a party in the provinces seems resolved to prevent. The questions will, I doubt not, ere long be brought to a crisis; and it seems probable that the vexatious course pursued towards the fishermen, with the object of fostering their own at the expense of our fisheries, and the care taken by the French to protect and encourage theirs, will tend to injure, perhaps destroy those of this country; a result to be deprecated in connexion with the navy, for there is no branch of commerce which supplies so large a portion of hardy and efficient seamen. Although several of the vessels seized by authority of the province of Nova Scotia were afterwards released, the great expense incurred and the time they were detained made the injury to the owners nearly equal to a total loss. The person who made the most of these seizures, (a Mr. Darby, who commands a chebacco boat, with ten or twelve men armed with muskets,) is prompted, as well by his interest as by a certainty of impunity, to seize all he can find. The law of this province, entitled William IV, chap. viii, 1836, which seems solely intended to prosecute our fishermen, could only have been approved by orders in council through an oversight. It is not possible that Great Britain intends, when the property of citizens of a nation in amity is seized on false pretences, or with no pretence, to force the lawful owner to give heavy bonds, liable to be forfeited, in addition to vessel and cargo, before he can claim his property: To give a month's notice to the seizing officer; the notice to contain every thing intended to be proved against him, before a suit can be instituted; and, again, to prove that the notice has been given. To force the owner to bring his action or claim within three months one of which is expended in thus giving notice, and the other two may well expire, owing to the infrequency and uncertainty of communications, before the distant owner can transfer funds and give the requisite bonds to precede his suit, or lay claim to his illegally seized property, which property will thus be condemned by default: To force the owner, if he cannot prove the illegality of the seizure, to pay treble costs: To screen the officer seizing, by providing that, if the judge shall say there was probable cause, he shall be liable to no prosecution; the plaintiff only entitled to second damages; the defendant only liable to costs. The whole of this act, and the proceedings on the subject, as detailed in the journals of the assembly, display an unfriendly disposi tion towards Americans, or rather a determination to quarrel or drive them from the exercise of rights secured by solemn treaty. The injustice and annoyance suffered by the fishermen have so irritated them, that there is ground to believe that violence will be resorted to, unless some understanding be had before the next season. As the facts relating to these seizures have been reported to the government by Messrs. Consuls Morrow, of Halifax, and Primrose, of Picton, I have confined myself to such a representation of the grounds assumed as may be useful in judging of the danger of serious difficulty, which has seemed to me considerable. There is another law of this province, unjust towards foreigners, and likely to be injurious to Americans. It relates to passengervessels which may be forced from any cause to make a harbor, and is entitled 1st Victoria, 1839, chapter xlv., sections 3 and 5. If any of the passengers please, they may remain on shore, and the vessel may be cleared until bonds are given to the amount of £50 for each person so remaining that they shall not become chargeable to the community; and this, while the captain is willing or desirous of finishing his contract by conveying them to their destination. At Prince Edward's Island, the schooner Three Brothers, of Belfast, having met with some injury by grounding, commenced lightening; but the captain was advised to apply for permission, 123 and did so; the permission was refused, and the articles landed (some barrels of salt) were seized. This was afterwards ordered to be restored to the owners, but had already been sold; and the proceeds are now in the hands of the collector of customs at Charlestown, subject to the orders of the honorable the board of customs in London, and cannot be claimed by the owners without first entering into bonds-probably ten times the amount of salt seized. I believe that a consul, to reside at Charlottetown, with the usual power of appointing agents, would be a means of preventing future difficulties; the only intercourse with the authorities now being through a consular agent appointed by Consul James Primrose, of Pictou, in another province. I have the honour to subscribe myself, with high respect, your obedient servant, JNO. S. PAINE, Lieut. Comd'g U. S. Schooner Grampus. Hon. JOHN FORSYTH, Secretary of State. No. 71.-1840, March 27: Address of the House of Assembly of Nova Scotia. To the Queens Most Excellent Majesty. May it please your Majesty We your Majestys dutiful and loyal subjects the representatives of your Majestys loyal people of Nova Scotia humbly approach your Majesty with their complaints against the citizens of the United States of America who continue to disregard the terms and provisions of Treaties existing between the two nations by encroaching on the reserved fishing grounds of this province and the adjoining Colonies to the detriment and injury of the inhabitants thereof Your Majesty's Council and Assembly in 1838 approached your Majesty's Throne with an Address humbly referring your Majesty to the Convention of 1818 between your Majestys Government and that Republic and to the Report of this House of 1837 as exhibiting the gross violation of the rights of the inhabitants of the Lower Provinces, and your people regret that the defective state of the regulations for the protection of the British North American fisheries still permits such infringements with comparative impunity. Although the Convention of 1818 secured to the people of Great Britain and your Majesty's Dominions in America certain rights of exclusive fishery on the shores of such provinces and the citizens of the United States renounced for ever any liberty enjoyed or claimed by the inhabitants thereof to take dry or cure fish within three marine miles of any of the coasts, bays, creeks or harbours not included within certain limits mentioned in said Convention no rules or regulations were adopted to prevent the abuse of the privileges added to the United States until 1836 when His late Majesty William the Fourth signified his Royal assent to a statute of this province embodying rules and regulations for the fishery thereof the operation of which has been most wholesome and has curbed the illegal trespasses of foreigners by subjecting their vessels to forfeiture or de92909°-S. Doc. 870, 61-3, vol 4- -24 tection and condemnation in the Court of Vice Admiralty of Nova Scotia That no regulations having been adopted (as your House of Assembly believe) for the same salutary purposes in the provinces of New Brunswick, Prince Edward Island the Canadas and Newfoundland the revenue vessels employed by the Government of this province cannot make seizures because the encroachments are beyond the operation of the said law which is confined to the province and therefore it becomes indispensable for the preservation of the valuable source of wealth with which Providence has blessed these Colonies, that similar regulations should be granted by your Majesty for ali the Colonies. And your Assembly solicit your Royal attention to the accompanying code as well adapted for such important purposeThat the citizens of the United States pass through the Strait of Canso a narrow strip of water completely within and dividing several counties of this province whereby they violate the letter and spirit of the Treaty or Convention of 1818 to the detriment of your Majestys people; and on the shores of the Magdalen Islands they conduct the fishery in a manner destructive thereof by taking herring which swarm on those shores at the time they are casting their spawn. Aware of the solicitude of your Majesty for the happiness and welfare of your faithful North American subjects your Assembly humbly prays encouragement and protection of their commerce and fishery and as they have appointed revenue cutters for such service that your Majesty will order armed vessels to aid them in such laudable undertaking and extend to your loyal subjects of Nova Scotia that protection which may be consistent with the claims of other portions of your Majestys extensive dominionsIn the House of Assembly 27th March 1840 124 S. G. W. ARCHIBALD Speaker. No. 72.-1841, February 20: Letter from Mr. Forsyth (United [No. 89.] DEPARTMENT OF STATE, Washington, February 20, 1841. SIR: At the time of addressing you the instructions numbered 71, of 17th of April last, relating to the interruptions experienced by the vessels of our citizens employed in intercourse with the ports of Nova Scotia, and in the prosecution of the fisheries on the neighbouring coasts, it was deemed expedient, before presenting through you the latter branch of the subject to Her Majesty's Government in a formal manner, to await the communication to this department of a case in which the details of the seizure-the grounds on which it was made, and the consequent judicial and other proceedings should be fully set forth. Several cases of seizures and detention have, as was apprehended, occurred since the date of my letter, but none of those reported to the department have been presented in a form to fuifil the expectation entertained that the Government would be enabled to found upon it a specific complaint against the conduct of the local authorities, whilst protesting against the injurious operation of provincial law upon American interests brought involuntarily and unjustly within its jurisdiction. The first article of the Convention of 1818, between the United States and Great Britain, which contains the treaty stipulations relating to the subject, is so explicit in its terms that there would seem to be little room for misapprehending them; and indeed it does not appear that any conflicting questions of right between the two governments have arisen out of differences of opinion between them regarding the intent and meaning of this article. Yet in the actual application of the provisions of the treaty, committed, on the part of Great Britain, to the hands of subordinate agents, subject to and controlled by local legislation, difficulties growing out of individual acts have sprung up from time to time, and of these, perhaps the most grave in their character, are the recent seizures of American vessels, made, it is believed, under color of a provincial law, entitled William IV., chap. 8, 1836, enacted doubtless with a view rigorously to restrict, if not intended directly to aim a fatal blow at our fisheries on the coast of Nova Scotia. From the information in the possession of the department, it appears that the provincial authorities assume a right to exclude American vessels from all their bays, even including those of Fundy and Chaleurs, and to prohibit their approach within three miles of a line drawn from headland to headland. These authorities also claim a right to exclude our vessels from resorting to their ports unless in actual distress, and American vessels are accordingly warned to depart or ordered to get under weigh and leave a harbor whenever the provincial custom-house or British naval officer supposes, without a full examination of the circumstances under which they entered, that they have been there a reasonable time. Now, by the convention above referred to, American fishermen are forever secured in their right to take, dry, and cure fish on the coasts of the Magdalen Islands and of Newfoundland and Labrador, within certain defined limits, and the United States renounced forever any liberty before enjoyed by their citizens of fishing within three marine miles of any coasts, bays, &c., of the British domains in America not included within those limits, and retain for their vessels the privilege (under the restrictions therein named) of entering such bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water. Our fishermen believe, and they are obviously right in their opinion, if uniform practice is any evidence of correct construction, that they can with propriety take fish any where, on the coasts of the British provinces, if not nearer than three miles to land, and resort to their ports for shelter, wood, water, &c.; nor has this claim ever been seriously disputed, based as it is on the plain and obvious terms of the convention, whilst the construction attempted to be put upon that instrument by the authorities of Nova Scotia is directly in conflict with its provisions, and entirely subversive of the rights and interests of our citizens. It is one which would lead to the abandonment, to a great extent, of a highly important branch of American industry, and cannot for one moment be admitted by this Government, |