LIST OF ACCOMPANYING PAPERS. Acting Secretary of State to Mr. Fox, July 10, 1839. Mr. Forsyth to Mr. Stevenson, February 20, 1841. Mr. Upshur to Mr. Everett, June 30, 1843. Mr. Everett to Mr. Upshur, August 15, 1843. (Extract.) Same to Mr. Calhoun, May 26, 1844. (Extract.) Mr. Calhoun to Mr. Everett, July 5, 1844. (Extract.) Same to same, September 6, 1844. Mr. Everett to Mr. Calhoun, October 9, 1844. (Extracts.) Same to sa ne, November 4, 1844. Acting Secretary of State to Mr. Fox. DEPARTMENT OF STATE, Washington, July 10, 1839. SIR: I have the honor to communicate to you copies of papers* referred to this department by the Secretary of the Treasury, respecting the seizure of several fishing boats belonging to citizens of the United States, by the British government vessel "Victory," in the Bay of Fundy, on a charge of having been engaged in taking fish within British jurisdiction, contrary to existing treaty stipulations between the United States and Great Britain, and the laws of the Province of Nova Scotia. You will perceive from these papers, that, in the opinion of the naval officer despatched by the collector of customs at Boston to inquire into the circumstances of the seizures, and of the consular agent of the United States at Yarmouth, who had been desired to furnish the information in his possession on the subject, some, at least, of those seizures were made for causes of a trivial character, and with a rigor not called for by circumstances. Not doubting that justice will ultimately be done to the sufferers by the colonial courts in which proceedings have been instituted against them, my object in addressing this communication to you is to invoke your good offices in calling the attention of her Majesty's provincial authorities to the ruinous consequences of those seizures to our fishermen, whatever may be the issue of the legal proceedings founded upon them, and to the consequent expediency of great caution and forbearance in future, in order that American citizens, not manifestly encroaching upon British rights, be not subjected to interruption in the lawful pursuit of their profession. I have the honor, &c., HENRY S. Fox, Esq., &c., &c. A. VAIL, Acting Secretary. Mr. Forsyth to Mr. Fox. DEPARTMENT OF STATE, Washington, July 24, 1839. SIR: I have the honor to communicate to you a copy of a letter addressed to this department by the collector of customs of the district of Frenchman's bay, asking its interposition in obtaining for Captain Benjamin S. Moore, of the fishing schooner "Charles," the restitution of ten barrels of herrings taken from him by the officer who seized his vessel, and still withheld after her release by the authorities of Halifax. As the vessel was given up, it is presumed that the seizure had been made upon insufficient grounds, and therefore, that upon the institution of legal proceedings, Captain Moore would obtain the restitution of the property still withheld from him. As it seems, however, that he is poor, that he has already suffered a heavy loss in consequeEce of the detention of his vessel, and consequently that he could but ill bear the expense and delay attending such ment. See House Document No. 186, 26th Congress, 1st session, pp. 85-92 of this docu↑ Ibid., p. 82. legal proceedings, I request that you will use your good offices with the authorities of Halifax to procure for the claimant either the return of his property or such indemnity for the loss of it as may seem reasonable and just. I have the honor, &c., 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 neighboring 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 fulfil 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 dif ferences 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 accord ingly 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 purposes 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 anywhere 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. I am instructed by the President to convey to you his desire that, on the receipt of this letter, you immediately address a representation of the whole subject to her Majesty's government, carnestly remonstrate against the illegal and vexatious proceedings of the authorities of Nova Scotia towards our fishermen, and request that measures be forthwith adopted by her Majesty's government to remedy the evils arising out of this misconstruction, on the part of the provincial authorities, of their conventional obligations, and to prevent the possibility of the recurrence of similar acts. It is important that this subject should be acted upon without delay, as in the House of Assembly of Nova Scotia, at the session of 1839-'40, an address to the Queen was voted, suggesting the extension to the adjoining British colonies, of rules and regulations relating to the fisheries similar to those in actual operation in that province, which have proved so onerous to American fishermen, and efforts, it is understood, are still making to induce the other colonies to unite with Nova Scotia in her restrictive system. Some of the provisions of her code, supposed to be substantially the same with those of the provincial law above referred to, are of the most extraordinary character. For instance, a foreign vessel preparing to fish within three miles of the coast of her Majesty's dominions in America, is, together with her cargo, to be forfeited; in cases of seizure the owner or claimant of the vessel, &c., to be held to prove his innocence or pay treble costs; he is forced to try his action within three months; to give a month's notice to the seizing officer, which notice must contain everything intended to be proved against him, before a suit can be instituted; and also to prove that the notice has been given. The seizing officer is almost wholly irresponsible, since he is liable to no prosecution; if the judge certify that there was probable cause, and the plaintiff in such suit, if he be successful, is only entitled to two pence damages without costs, the defendant to be fined not more than one shilling, &c., &c. 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 all just powers and all civilized nations, and seem to be expressly designed to enable her Majesty's authorities, with perfect impunity, to seize and confiscate American vessels, and to embezzle, almost indiscriminately, the property of our citizens employed in the fisheries on the coasts of the British possessions. In pointing out to her Majesty's government the points in these regulations which have proved or are likely to prove most injurious and oppressive in their practical operation on the interests of the citizens of the United States, it will also be proper to notice the assertion of the provincial legislature, that the Strait of Canso is a "narrow strip of water completely within and dividing several counties" of the province, and that our use of it is in violation of the convention of 1818. That strait separates Nova Scotia from the island of Cape Breton, which was not annexed to the province until 1820. In 1818, Cape Breton was enjoying a government of its own entirely distinct from Nova Scotia, the strait forming the line of demarcation between them, and being then, as now, a thoroughfare for vessels passing into and out of the Gulf of St. Lawrence. The union of the two colonies cannot be admitted as vesting in the province the right to close a passage which has been freely and indisputably used by our citizens since the year 1783, and it is impossible to conceive how the use, on our part, of this right of passage, common it is believed to all other nations, conflicts either with the letter or the spirit of our treaty obligations. I transmit to you enclosed a printed House document (No. 186) of last session of Congress, and also a copy of the journal and proceedings of the House of Assembly of Nova Scotia at its session of 1839-40, both of which will be useful to you in the examination of the subject to which this letter relates. I am, sir. your obedient servant, JOHN FORSYTH. A. STEVENSON, &c., &c., &c. CHAP. VIII-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, passed the 12th day of March, 1836. Whereas, by the convention made between his late Majesty, King George the Third, and the United States of America, signed at London on the twentieth day of October, in the year of our Lord one thousand eight hundred and eighteen, and the statute made and passed in the Parliament of Great Britain in the fifty-ninth year of the reign of his late Majesty, King George the Third, all foreign ships, vessels or boats, or any ship, vessel or boat, other than such as shall be navigated according to the laws of the United Kingdom of Great Britain and Ireland, found fishing, or to have been fishing, or preparing to fish within certain distances of any coasts, bays, creeks or harbors whatever, in any part of his Majesty's dominions |