In view of the claims heretofore presented by Her Majesty's Government, and which as it contends, are supported by the law of nations and the stipulations of the Treaty of 1818, as to the extent of British Maritime jurisdiction in the waters in which the Fisheries are prosecuted on the Eastern Coasts of North America, the President is pleased to recognise in the tenor of the Despatches and instructions which have been addressed by Her Majesty's Government to the Canadian authorities and to Admiral Wellesley, a generous spirit of amity which is reciprocated by the United States. Animated by that spirit he directs that Her Majesty's Government be informed that the description of the limit of Canadian Maritime jurisdiction contained in the circular in question and which was adopted before this Government was made acquainted with the nature of the instructions which it was proposed by Her Majesty's Government to issue, was used for the sake of brevity in expressing the interpretation which has been heretofore placed upon the 1st article of the Treaty of 1818, by this Government, and not with the expectation of renewing a controversial discussion upon the subject, which, under present circumstances, he would sincerely deprecate.

I have the honour to be, with the highest consideration, Sir,

Your obedient servant,

EDWARD THORNTON, Esqre., C. B.

&c &c &c

HAMILTON FISH

No. 151.-1870, July 21: Letter from Mr. Thornton, British Minister at Washington, to Mr. Fish, United States Secretary of State.

WASHINGTON, 21st July, 1870.

SIR, With reference to notes which I have addressed to you, and verbal statements which I have made to you to the effect that instructions have been given to the officers commanding Her Majesty's vessels of war and Canadian Government vessels employed in the protection of the Canadian fisheries not to capture United States fishing vessels unless found fishing within three miles of the coast from which they are prohibited or of a line drawn across bays whose mouths do not exceed six geographical miles in width, I have the honour to inform you that I have received directions from Earl Granville to explain to you that the instructions respecting the limits within which the prohibition of fishing is to be enforced against United States fishermen are not to be considered as constituting an arrangement between the Governments of the United States and Great Britain, by which Canadian rights are waived, or the United States fishermen invested with any privilege, but only as a temporary direction given by the British and Canadian Governments to their own officers, in hopes that the question may soon be settled, and in order to prevent any controversy arising on a subordinate point.

I have, &c.,

(Signed)

&c. &c. &c.

Hon. HAMILTON FISH,

E. THORNTON.

240

No. 152.-1870, November 5: Report of Hon. Peter Mitchell, Canadian Minister of Marine and Fisheries, on the Practice which, previous to the Reciprocity Treaty, prevailed respecting United States Fishing Vessels trading in Provincial Ports, &c.

DEPARTMENT OF MARINE AND FISHERIES,

OTTAWA, 5th November, 1870. With reference to the Earl of Kimberley's confidential despatch of the 12th ultimo, requesting information as to what was the actual practice which prevailed previous to the Reciprocity Treaty between Great Britain and the United States, in regard to the exclusion of American fishermen from trading or effecting commercial operations in the ports of the different Provinces of British North America, the undersigned has the honor to state:

That the right to prevent American fishing vessels from resorting to Provincial bays and harbors, for purposes of trade, was actually asserted and carried out under the Imperial and Colonial statutes, enacted to give effect to the provisions of the Treaty of 1818, anterior to the Reciprocity Treaty of 1854.

Between the years 1817 and 1854 (Vide App. 4, pp. 107-10, Nova Scotia Journals, 1853), several United States fishing vessels were detained and seized by Imperial and Colonial officers for infractions of the Treaty, and violation of these statutes. Many of them were condemned. Among the specific offences of fishing, for which numerous seizures and confiscations took place during this period, American fishing vessels were accosted and detained for the following reasons:

1. Anchoring or hovering in-shore during calm weather without any ostensible cause, having aboard ample supplies of wood and water;

2. Lying at anchor and remaining inside of the bays to clean and pack fish;

3. Purchasing and bartering bait;

4. Selling goods and buying supplies;

5. Landing and transhipping cargoes of fish.

The undersigned begs leave to refer, in the first place, to the Imperial instructions under which, antecedent to the convention of 1818, American fishing vessels were excluded from British bays and harbors in North America, conformable to the Treaty of 1783. The following Admiralty order for the governance of officers commanding vessels engaged in the protection of the fisheries and the prevention of illicit trade, signed by Rear-Admiral Milne, bears date the 12th May, 1817:

On your meeting with any foreign vessel, fishing, or at anchor, in any of the harbors or creeks in His Majesty's North American Provinces, or within our maritime jurisdiction, you will seize and send such vessel so trespassing to Halifax, for adjudication, unless it should clearly appear that they have been obliged to put in there in consequence of distress, acquainting me with the cause of such seizure, and every other particular, to enable me to give all information to the Lord Commissioners of the Admiralty. (Vide British and Foreign State Papers, No. 7, 1819-20, p. 139.)

Under this instruction numbers of American fishing vessels were seized in Ragged Island Harbour, on the 8th of June, 1817, where

they pretended to have sought shelter. The seizures were objected to on behalf of the United States Government, on the ground that these vessels entered from a lawful and necessary motive; but, on investigation, it was found that, as explained by His Majesty's Government, they were in the habit of occupying, and at the time of seizure, actually occupied this harbour without any legitimate excuse. The fishing schooners Nabby and Washington were seized in 1818, and condemned for being at anchor in, and hovering near, a settled British harbour. The Java, Independence, Magnolia, and Hart, were detained and confiscated in 1839, for being in harbour without lawful cause, and cleaning fish on deck. In 1840, the fishing vessels Papineau and Mary were seized and sold for purchasing bait ashore.

The right of excluding American fishing vessels from the Provincial ports, bays, and harbours, except in case of distress, was thus enforced just before the convention, and some time after, for similarly resorting to British bays and harbours, except for the specified purposes arranged in the treaty of 1818, to purchase wood and obtain water, and for shelter and repairs. This right was formally and continuously asserted throughout the intervening period to 1852, when the distinct offence of trading for supplies and transhipping fish cargoes became the subject of specific instructions. The Collectors of Customs at some of the ports of Nova Scotia having granted permits to authorize such transactions, the Provincial officers in command of the fisheries protection service asked for positive instructions. They were, therefore, instructed by the Government of Nova Scotia, that United States fishing vessels, with or without permits, could not legally land freight, or frequent such ports and harbours for any purposes whatever, not described in the Treaty. The following official direction, dated at Halifax, the 28th of August, 1852, is signed by the then Provincial Secretary, the Honourable Joseph Howe (Vide App. 4, p. 141, Nova Scotia Journals, 1853):—

No American fishing vessels are entitled to commercial privileges in Provincial ports, but are subject to forfeiture if found engaged in traffic. The Colonial Collectors have no authority to permit freight to be landed from such vessels, which, under the Convention, can only enter our parts [ports] for the purposes specified therein, and for no other.

241

The question arose on the practise of taking on board articles necessary to fishing operations, landing fish for transhipment, and refitting in ports and harbours, at various places around the coast of Nova Scotia, and producing a written permission from some Customs' Collector.

During the same year, Vice-Admiral Seymour applied to the Admiralty for special instructions as to the powers of naval officers to seize or interfere with United States fishing vessels resorting to ports or harbors for other than the purposes defined in the Convention. (Vide App. 4, pp. 138-9, Nova Scotia Journals, 1853.) The matter was referred to the Law Advisers of the Crown. (Dated 25th September, 1852.) They pronounced the opinion that these officers were empowered under their instructions to "seize" American fishing vessels only for the offence of fishing within the prescribed limits, but the vessels might be warned off and compelled to depart, and could be seized by such officers or others, if so authorised by Order in Council the penalties or mode of procedure depending upon the local laws and regulations of each Colony. (App. 4, pp. 139–41.)

The legal opinion recited, adds that "independently of the express provisions of the statute," vessels infringing these laws, by resorting to ports or harbors for other than the purposes specified by the treaty, might be warned and compelled to depart by whatever force is reasonably necessary by persons authorized by the Colonial Governors, or the British Admiral.

The Imperial and Colonial Statutes now in force, provide for regulations in pursuance of the treaty to enforce the terms of the Convention; and instructions to Commanders of Marine Police Vessels, approved by Orders in Council, are such existing "Regulations provided for by the Statutes as are deemed "necessary to prevent" American fishermen from abusing "in any other manner whatever" (besides fishing) the privileges reserved to them by the Convention. The foregoing references should suffice to establish that the restriction in question is neither novel, strained, nor vexatious. The whole, nevertheless, respectfully submitted.

P. MITCHELL, Minister of Marine and Fisheries.

No. 153.-1870: Extract from President's Message to United States

Congress.

*

The course pursued by the Canadian authorities towards the fishermen of the United States during the past season has not been marked by a friendly feeling. By the first Article of the Convention of 1818, between Great Britain and the United States, it was agreed that the inhabitants of the United States should have for ever, in common with British subjects, the right of taking fish in certain waters therein defined. In the waters not included in the limits named in the Convention (within three miles of parts of the British coast) it has been the custom for many years to give to intruding fishermen of the United States a reasonable warning of their violation of the technical rights of Great Britain. The Imperial Government is understood to have delegated the whole or a share of its jurisdiction or control of these in-shore fishing-grounds to the Colonial authority known as the Dominion of Canada, and this semiindependent but irresponsible agent has exercised its delegated powers in an unfriendly way. Vessels have been seized without notice or warning, in violation of the custom previously prevailing, and have been taken into the Colonial ports, their voyages broken up, and the vessels condemned. There is reason to believe that this unfriendly and vexatious treatment was designed to bear harshly upon the hardy fishermen of the United States, with a view to political effect upon this Government. The Statutes of the Dominion of Canada assume a still broader and more untenable jurisdiction over the vessels of the United States. They authorize officers or persons to bring vessels hovering within three marine miles of any of the coasts, bays, creeks, or harbours of Canada into port, to search the cargo, to examine the master on oath touching the cargo and voyage, and to inflict upon him a heavy pecuniary penalty if true answers are not given; and if such a vessel is found" preparing to fish" within three marine miles of any of such coasts, bays, creeks,

or harbours without a license, or after the expiration of the period named in the last license granted to it, they provide that the vessel, with her tackle, &c., shall be forfeited. It is not known that any condemnations have been made under this statute. Should the authorities of Canada attempt to enforce it, it will become my duty to take such steps as may be necessary to protect the rights of the citizens of the United States,

It has been claimed by Her Majesty's officers that the fishing vessels of the United States have no right to enter the open ports of the British possessions in North America, except for the purposes of shelter and repairing damages, of purchasing wood, and obtaining water; that they have no right to enter at the British Custom-houses or to trade there except in the purchase of wood and water; and that they must depart within twenty-four hours after notice to leave. It is not known that any seizure of a fishing vessel carrying the flag of the United States, has been made under this claim. So far as the claim is founded on an alleged construction of the Convention of 1818, it cannot be acquiesced in by the United States. It is hoped that it will not be insisted on by Her Majesty's Government.

242

During the Conferences which preceded the negotiation of the Convention of 1818, the British Commissioners proposed to expressly exclude the fishermen of the United States from" the privilege of carrying on trade with any of His Britannic Majesty's subjects residing within the limits assigned for their use;" and also that it should not be "lawful for the vessels of the United States, engaged in said fishery, to have on board any goods, wares, or merchandize whatever, except such as may be necessary for the prosecution of their voyage to and from the said fishing-grounds. And any vessel of the United States which shall contravene this regulation may be seized, condemned, and confiscated with her cargo.

This proposition, which is identical with the construction now put upon the language of the Convention, was emphatically rejected by the American Commissioners, and thereupon was abandoned by the British Plenipotentiaries, and Article I, as it stands in the Convention, was substituted.

If, however, it be said that this claim is founded on Provincial or Colonial Statutes, and not upon the Convention, this Government cannot but regard them as unfriendly, and in contravention of the spirit, if not of the letter, of the Treaty, for the faithful execution of which the Imperial Government is alone responsible.

Anticipating that an attempt may possibly be made by the Canadian authorities in the coming session to repeat their unneighbourly acts towards our fishermen, I recommend you to confer upon the Executive the power to suspend, by Proclamation, the operation of the laws authorizing the transit of goods, wares, and merchandize in bond across the territory of the United States to Canada; and further, should such an extreme measure become necessary, to suspend the operation of any laws whereby the vessels of the Dominion of Canada are permitted to enter the waters of the United States.

A like unfriendly disposition has been manifested on the part of Canada in the maintenance of a claim of right to exclude the citizens of the United States from the navigation of the St. Lawrence. This river constitutes a natural outlet to the ocean for eight States with an aggregate population of about seventeen million six hundred