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tion of 1818 on the fishing privilege accorded to the citizens of the United States by the treaty of 1783 requires such a latitude of construction.
It is obvious that (by the terms of the treaty) the furthest distance to which fishing vessels of the United States are obliged to hold themselves. from the colonial coasts and bays, is three miles. But, owing to the peculiar configuration of these coasts, there is a succession of bays indenting the shores both of New Brunswick and Nova Scotia, within the Bay of Fundy. The vessels of the United States have a general right to approach all the bays in her Majesty's colonial dominions, within any distance not less than three miles-a privilege from the enjoyment of which they will be wholly excluded-in this part of the coast, if the broad arm of the sea which flows up between New Brunswick and Nova Scotia, is itself to be considered one of the forbidden bays.
Lastly-and this consideration seems to put the matter beyond doubtthe construction set up by her Majesty's colonial authorites, would altogether nullify another, and that a most important stipulation of the treaty, about which there is no controversy, viz: the privilege reserved to American fishing vessels of taking shelter and repairing damages in the bays within which they are forbidden to fish. There is, of course, no shelter nor means of repairing damages for a vessel entering the Bay of Fundy, in itself considered. It is necessary, before relief or succor of any kind can be had, to traverse that broad arm of the sea and reach the bays and harbors, properly so called, which indent the coast, and which are no doubt the bays and Larbors referred to in the convention of 1818. The privilege of entering the latter in extremity of weather, reserved by the treaty, is of the utmost importance. It enables the fisherman, whose equipage is always very slender (that of the Washington was four men all told) to pursue his laborious occupation with comparative safety, in the assurance that in one of the sudden and dangerous changes of weather so frequent and so terrible on this iron bound coast, he can take shelter in a neighboring and friendly port. To forbid him to approach within thirty miles of that port, except for shelter in extremity of weather, is to forbid him to resort there for that purpose. It is keeping him at such a distance at sea as wholly to destroy the value of the privilege expressly reserved.
In fact it would follow, if the construction contended for by the British colonial authorities were sustained, that two entirely different limitations would exist in reference to the right of shelter reserved to American vessels on the shores of her Majesty's colonial possessions. They would be allowed to fish within three miles of the place of shelter along the greater part of the coast; while in reference to the entire extent of shore within the Bay of Fundy, they would be wholly prohibited from fishing along the coast, and would be kept at a distance of twenty or thirty miles from any place of refuge in case of extremity. There are certainly no obvious principles which render such a construction probable.
The undersigned flatters himself that these considerations will go far to satisfy Lord Aberdeen of the correctness of the American understanding of the words "Bay of Fundy," arguing on the terms of the treaties of 1783 and 1818. When it is admitted that, as the undersigned is advised, there has been no attempt till late years to give them any other construction than that for which the American government now contends, the point would seem to be placed beyond doubt.
Meantime Lord Aberdeen will allow that this is a question, however
doubtful, to be settled exclusively by her Majesty's government and that of the United States. No disposition has been evinced by the latter to anticipate the decision of the question; and the undersigned must again represent it to the Earl of Aberdeen as a matter of just complaint and surprise on the part of his government, that the opposite course has been pursued by her Majesty's colonial authorities, who have proceeded (the undersigned is confident without instructions from London,) to capture and detain an American vessel on a construction of the treaty which is a matter of discussion between the two governments, and while the undersigned is actually awaiting a communication on the subject promised to his predecessor.
This course of conduct, it may be added, objectionable under any circumstances, finds no excuse in any supposed urgency of the case. The Washington was not within three times the limit admitted to be prescribed in reference to the approach of American vessels to all other parts of the coast, and in taking a few fish, out of the abundance which exists in those seas, she certainly was inflicting no injury on the interests of the colonial population which required this summary and violent measure of redress.
The undersigned trusts that the Earl of Aberdeen, on giving a renewed consideration to the case, will order the restoration of the Washington, it still detained, and direct the colonial authorities to abstain from the further capture of the fishing vessels of the United States under similar circumstances, till it has been decided between the two governments whether the Bay of Fundy is included among "the coasts, bays, creeks and harbors" which American vessels are not permitted to approach within three miles.
The undersigned requests Lord Aberdeen to accept the assurances of his distinguished consideration.
The EARL OF ABERDEEN, &c., &c.
Lord Aberdeen to Mr. Everett.
FOREIGN OFFICE, April 15, 1844.
The note which Mr. Everett, envoy extraordinary and minister plenipotentiary of the United States of America, addressed to the undersigned, her Majesty's principal secretary of state for foreign affairs, on the 10th of August last, respecting the seizure of the American fishing vessel Washington by the officers of Nova Scotia, having been duly referred to the colonial office, and by that office to the governor of Nova Scotia, the undersigned has now the honor to communicate to Mr. Everett the result of those references.
The complaint which Mr. Everett submits to her Majesty's government is that, contrary to the express stipulations of the convention concluded on the 20th of October, 1818, between Great Britain and the United States, an American fishing vessel was seized by the British authorities for fishing in the Bay of Fundy, where Mr. Everett affirms that, by the treaty, American vessels have a right to fish, provided they are at a greater distance than three marine miles from the coast.
Mr. Everett, in submitting this case, does not cite the words of the treaty, but states in general terms that, by the first article of said treaty the United States renounce any liberty heretofore enjoyed or claimed by their inhabitants to take, dry or cure fish on or within three miles of any of the coasts of her Majesty's dominions in America. Upon reference, however, to the words of the treaty, it will be seen that American vessels have no right to fish, and indeed are expressly debarred from fishing in any bay on the coast of Nova Scotia.
The words of the treaty of October, 1818, article 1, run thus: "And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish, on or within three marine miles of any of the coasts, bays, creeks or harbors of his Britannic Majesty's dominions in America, not included within the abovementioned limits, [that is, Newfoundland, Labrador, and other parts separate from Nova Scotia:] provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter," &c.
It is thus clearly provided that American fishermen shall not take fish within three marine miles of any bay of Nova Scotia, &c. If the treaty was intended to stipulate simply that American fishermen should not take fish within three miles of the coast of Nova Scotia, &c., there was no occasion for using the word "bay" at all. But the proviso at the end of the article shows that the word "bay" was used designedly; for it is expressly stated in that proviso, that under certain circumstances the American fishermen may enter bays, by which it is evidently meant that they may, under those circumstances, pass the sea-line which forms the entrance of the bay. The undersigned apprehends that this construction will be admitted by Mr. Everett.
That the Washington was found fishing within the Bay of Fundy is, the undersigned believes, an admitted fact, and she was seized accordingly. The undersigned requests Mr. Everett to accept the assurances of his high consideration.
SIR: I have the honor to acknowedge the receipt of your despatches to No. 147, inclusive.
The President is perfectly satisfied with the manner in which you have presented the case of the American vessel Washington, seized by British colonial authorities for having been found fishing within the Bay of Fundy, and with the argument on the main question contained in your note to the Earl of Aberdeen of the 25th of May last, involving the interpretation to be given to the provisions of the convention of 1818.
EDWARD EVERETT, ESQ., &c., &c.
* ** *
J. C. CALHOUN.
Mr. Calhoun to Mr. Everett.
DEPARTMENT OF STATE,
Washington, September 6, 1844. SIR: It would seem from a perusal of the papers which accompany this despatch that an outrage has recently been committed by the British cutter Sylph on the American fishing schooner Argus, William Doughty master, off the coast of Cape Breton, much in character with some of those which have from time to time been made the subject of remonstrance by this government. Instructions in cases analagous to the one now under consideration having already been given by this department to the legation of the United States at London, it is not deemed necessary to repeat them at this time for the purpose of expressing the views of this government, or of pointing out the course which you will be expected to pursue in presenting the case of the Argus to the notice of the British government.
I am, sir, respectfully, your obedient servant,
EDWARD EVERETT, Esq.
J. C. CALHOUN.
Mr. Everett to Mr. Calhoun.
LONDON, October 9, 1844. SIR: Your instructions No. 105, dated September 6, and enclosing sundry papers relative to the seizure of the American fishing vessel the "Argus" by a Nova Scotia govenment schooner, were received by me a short time since.
I transmit herewith a copy of a note which I have addressed to Lord Aberdeen on the subject.
Having discussed the general principles involved in the question in my note to Lord Aberdeen, of the 26th of May last, in a manner which the President has been pleased to approve, I have thought it unnecessary to go over the ground again on this occasion.
JOHN C. CALHOUN, Esq.,
Secretary of State.
GROSVENOR PLACE, October 9, 1844.
The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America, has the honor to transmit to the Earl of Aberdeen, her Majesty's principal Secretary of State for foreign affairs, the accompanying papers relating to the capture of an American fishing vessel the "Argus," by a government cutter from Halifax, the "Sylph," on the 6th of July last.
In addition to the seizure of the vessel, her late commander, as Lord
Aberdeen will perceive from his deposition, complains of harsh treatment on the part of the captors.
The grounds assigned for the capture of this vessel are not stated with great distinctness. They appear to be connected partly by the construction set up by her Majesty's provincial authorities in America, that the line within which vessels of the United States are forbidden to fish, is to be drawn from headland to headland, and not to follow the indentations of the coast, and partly with the regulations established by those authorities, in consequence of the annexation of Cape Breton to Nova Scotia.
With respect to the former point, the undersigned deems it unnecessary, on this occasion, to add anything to the observations contained in his note to Lord Aberdeen, of the 25th of May, on the subject of limitations of the right secured to American fishing vessels by the treaty of 1783 and the convention of 1818, in reply to the note of his lordship of the 15th of April on the same subject. As far as the capture of the Argus was made under the authority of the act annexing Cape Breton to Nova Scotia, the undersigned would observe that he is under the impression that the question of the legality of that measure is still pending before the judicial committee of her Majesty's privy council. It would be very doubtful whether rights secured to American vessels under public compacts could, under any circumstances, be impaired by acts of subsequent domestic legislation; but to proceed to capture American vessels, in virtue of such acts, while their legality is drawn in question by the home government, seems to be a measure as unjust as it is harsh.
Without enlarging on these views of the subject, the undersigned would invite the attention of the Earl of Aberdeen to the severity and injustice which in other respects characterize the laws and regulations adopted by her majesty's provincial authorities against the fishing vessels of the United States. Some of the provisions of the provincial law, in reference to the seizures which it authorizes of American vessels, were pronounced, in a note of Mr. Stephenson to Viscount Palmerston of the 27th of March, 1841, to be "violations of well-established principles of the common law of England, and of the principles of the just laws of well civilized nations" and this strong language was used by Mr. Stevenson under the express instructions of his government.
A demand of security to defend the suit from persons so little able to furnish it as the captains of small fishing schooners, and so heavy that, in the language of the Consul at Halifax, "it is generally better to let the suit go by default," must be regarded as a provision of this description. Others still more oppressive are pointed out in Mr. Stevenson's note above referred to, in reference to which the undersigned finds himself obliged to repeat the remark made in his note to Lord Aberdeen of the 10th of August, 1843, that he believes it still remains unanswered.
It is stated by the captain of the "Argus" that the commander of the Nova Scotia schooner by which he was captured said that he was within three miles of the line beyond which, "on their construction of the treaty, we were a lawful prize, and that he seized us to settle the question."
The undersigned again feels it his duty, on behalf of his government, formally to protest against an act of this description. American vessels of trifling size, and pursuing a branch of industry of the most harmless description which, however beneficial to themselves, occasions no detriment to others, instead of being turned off the debatable fishing ground—