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No. 130.-1856, March 28: Circular, Mr. Marcy to Mr. Peaslee (Collector of Customs at Boston).

TO CHARLES H. PEASLEE, Esq.,

DEPARTMENT OF STATE,

Collector of the Customs, Boston.

Washington, March 28, 1856.

SIR: It is understood that there are certain Acts of the British North American Colonial legislatures, and also, perhaps, Executive Regulations, intended to prevent the wanton destruction of the fish which frequent the coasts of the Colonies, and injuries to the fishing thereon. It is deemed reasonable and desirable that both United States and British fishermen should pay a like respect to such laws and regulations, which are designed to preserve and increase the productiveness of the fisheries on those coasts. Such being the object of these laws and regulations, the observance of them is enjoined upon the citizens of the United States in like manner as they are observed by British subjects. By granting the mutual use of the inshore fisheries neither party has yielded its right to civil jurisdiction over a marine league along its coast. Its laws are as obligatory upon the citizens or subjects of the other as upon its own. The laws of the British Provinces not in conflict with the provisions of the Reciprocity Treaty would be as binding upon citizens of the United States within that jurisdiction as upon British subjects. Should they be so framed or executed as to make any discrimination in favour of the British fisherman, or to impair the rights secured to American fishermen by that Treaty, those injuriously affected by them will appeal to this Government for redress. In presenting complaints of this kind, should there be cause for doing so, they are requested to furnish the Department of State with a copy of the law or regulation which is alleged injuriously to affect their rights or to make an unfair discrimination between the fishermen of the respective countries, or with a statement of any supposed grievance in the execution of such law or regulation, in order that the matter may be arranged by the two Governments. You will make this direction known to the masters of such fishing vessels as belong to your port, in such manner as you may deem most advisable.

I am, Sir, respectfully, Your obedient servant,

W. L. MARCY.

It is believed that the principal regulations referred to above are the following, from the Revised Statutes of New Brunswick, vol. 1, title 22, chapter 101:

7. The wardens of any county shall, when necessary, mark out and designate, in proper positions, "gurry grounds," putting up notices thereof, describing their limits and position, in the several school houses, and other most public places in the parish where the said gurry grounds are marked out, publishing the like notice in the Royal Gazette; and no person, after such posting and publication, shall cast overboard from any boat or vessel the offal of fish into the water at or near the said parish at any place except the said gurry grounds.

12. Within the parishes of Grand Manan, West Isles, Campo Bello, Pennfield, and Saint George, in the county of Charlotte, no seine or net shall be set across the mouth of any haven river, creek, or harbour, nor in such place extending more than one-third the distance across the same, or be within forty fathoms of each other, nor shall they be set within twenty fathoms of the shore at low-water mark.

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15. No herrings shall be taken between the 15th day of July and the 15th of October in any year, on the spawning ground at the head of Grand Manan, to commence at the eastern part of Seal Cove, at a place known as Red Point, thence extending westerly along the coast and around the southern head of Bradford's Cove, about five miles, and extending one mile from the shore; all nets or engines used for catching herring on the said ground within that period shall be seized and forfeited, and every person engaged in using the same shall be guilty of a misdemeanour, and punished accordingly.

No. 131.-1856, April 24: Letter from Mr. Marcy to Mr. Crampton.

DEPARTMENT OF STATE, Washington, 24th April, 1856.

SIR: I have the honour to communicate printed copies of a letter of the 28th ultimo from this Department to the Collector of the Customs at Boston, relative to the observance by the fishermen of the United States of the laws of the British Provinces, enacted for the preservation of the fish on the coasts thereof. Copies of the letter have been sent to the Collectors of the Customs at other principal ports of this country from which vessels may proceed for the purpose of fishing in that quarter, and the Collectors have all been instructed to furnish the master of every such vessel with a copy of the letter.

I avail myself of this occasion, Sir, to offer to you a renewed assurance of my very high consideration.

JOHN F. CRAMPTON, ESQRE,

W. L. MARCY.

&c. &c. &c.

No. 132.-1856, April 25: Letter from Mr. Crampton to the Earl of Clarendon.

No. 104

WASHINGTON April 25th 1856 MY LORD: I did not fail, in obedience to the instructions contained in your Lordship's despatch No 220 of the 11th of October last, to take an opportunity of calling Mr. Marcy's attention to an objectionable expression contained in the Circular Letter which had in July last been issued by the Department of State, by which American fishermen who should repair to the British fisheries in North America were recommended to conform themselves to such laws and regulations as have been adopted by the Provincial authorities for the preservation of the fisheries.

The expression is as follows-"There is nothing in the Reciprocity Treaty between the United States and Great Britain which stipulates for the observance of these (the above-named) regulations.'

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I pointed out to Mr. Marcy the ill-effects which might arise from such a declaration by the Government of the United States. I remarked that it would be inferred that the observance by American. fishermen of the laws and regulations in question would be discretionary only, while the observance of the same laws and regulations would be enforced on British fishermen by legal penalties; and I added that the Provincial Magistrates would have no choice but to enforce the existing laws whatever they might be upon all persons without distinctions; And that consequently collision or unpleasant

92909°-S. Doc. 870, 61-3, vol 4——33

discussions would be sure to arise, were American fishermen to be left under the impression that they were not, while within British jurisdiction, equally amenable with British subjects to the British laws and regulations affecting the fisheries, as well as in every other respect. I admitted, I said, that, if any of those laws were framed or executed so as to make an unfair discrimination in favour of British fishermen, or directly or indirectly to deprive American fishermen of the privileges secured to them by the Reciprocity Treaty, this would afford just ground for representation to Her Majesty's Government by the Government of the United States. But I called Mr. Marcy's attention to the danger of allowing to each individual the right to judge for himself whether a regulation was in conformity with the provisions of the Treaty or not, and at once to object to observe it.

Mr. Marcy appeared entirely to concur in this view of the matter, and said that he would cause such an alteration to be made in the wording of the circular instruction to be issued for the approaching fishing season as would obviate the objection which I had put forward.

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Accordingly a few days after my conversation with Mr. Marcy I received from him the private note, of which I have the honor to enclose a copy containing an amended draft of the instruction also enclosed herewith.

Availing myself of the request contained in Mr. Marcy's note to return it with such remarks as I might think fit, I took the liberty of suggesting the insertion of the passage which I have marked with red ink in the copy, as being necessary to point out more clearly than Mr. Marcy's amended draft appeared to me to have done the liability of American fishermen in British waters to British jurisdiction.

Receiving no rejoinder to my note I lately reminded Mr. Marcy of the matter, when he told me that he had adopted my suggestion, although he had somewhat altered the phraseology of the passage I had proposed to insert, and he added that he would send me copies of the instructions so amended.

These I have received, and have the honor to enclose with a copy of the note from Mr. Marcy which accompanied them

I have underlined in red ink the passage which Mr. Marcy has substituted for that which I suggested.

Although the instruction is now in general more satisfactory inasmuch as it admits that the laws of each country within its own jurisdiction are as obligatory upon the citizens or subjects of the other as upon its own, Your Lordship will remark that Mr. Marcy has taken the opportunity of introducing a phrase by which the extent of the maritime jurisdiction of each country is defined in conformity with the recently adopted American doctrine that the civil jurisdiction of a country in no case extends further than "a marine league along its coast."

I say the recently adopted doctrine, for although it is certain that the American Executive has asserted this doctrine in the discussion which preceded the Reciprocity Treaty with Great Britain, and that they are now maintaining it in a controversy with the Spanish Government respecting the search of the American steamer" El Dorado " by the Spanish frigate "Ferrolana," it is equally certain that this doctrine is at variance with that laid down by eminent American

jurists (see Chancellor Kent's Commentaries page 32, 7th edition and Wheaton's Elements of the Law of Nations chap. 4. § 6.), that it has never directly or indirectly received the countenance of Congress, that its unqualified admission is firmly resisted by the Government of Spain, and that it has not, unless I am mistaken been ever acquiesced in by Her Majesty's Government.

I have the honour to be, with the highest respect, My Lord,
Your Lordship's most obedient humble servant,

JOHN F CRAMPTON

The Right Hon ble The EARL OF CLARENDON K.G—

&c &c &c.

[Mr. Marcy's "private note" mentioned in the foregoing letter appears above as No. 129 under date 28th March, 1856.

A copy of the "instruction" with Mr. Crampton's amendment written by him in red ink (shown in the print in italics) is the document next hereinafter printed.

Mr. Marcy's altered instruction appears ante under date 28th March, 1856. Where Mr. Crampton speaks of the passage "which Mr. Marcy has substituted for that which I suggested" he refers to the following words which were underlined by him in the copy enclosed to the Earl of Clarendon :

The

By granting the mutual use of the inshore fisheries neither party has yielded its right to civil jurisdiction over a marine league along its coast. Its laws are as obligatory upon the citizens or subjects of the other as upon its own. laws of the British Provinces not in conflict with the provisions of the reciprocity treaty would be as binding upon citizens of the United States within that jurisdiction as upon British subjects.]

[1856, March 28: Circular enclosed in above Letter.]

DEPARTMENT OF STATE, Washington March 28. 1856

SIR, It is understood that there are certain acts of the British North American Colonial Legislature and also perhaps Executive Regulations intended to prevent the wanton destruction of the fish which frequent the coast of the Colonies and injuries to the fishing thereon.

It is deemed reasonable and desirable that both United States and British fishermen should pay a like respect to such laws and regulations which are designed to preserve and increase the productiveness of the fisheries on those coasts.

Such being the object of these laws and regulations, the observance of them is enjoined upon citizens of the United States in like manner as they are observed by British subjects.

American citizens would indeed, within British jurisdiction, be liable equally with British subjects to the penalties prescribed by law for a wilful infraction of such regulations, but nevertheless should these be so framed or executed as to make any discrimination in favour of the British fishermen or to impair the rights secured to American fishermen by the Reciprocity Treaty, those injuriously affected by them will appeal to this Government for redress; In

prosecuting complaints of this kind, should there be cause for doing so, they are requested to furnish the Department of State with a copy of the law or regulation which is alleged injuriously to affect their rights, or to make an unfair discrimination between the fishermen of the respective countries or with a statement of any supposed grievance in the execution of law or regulation, in order that the matter may be arranged by the two Governments.

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You will make this direction know to the masters of such fishing vessels as belong to your port, in such manner as you may deem most advisable.

C. H. PEASLEE Esqr.

Collector of Customs Boston.

No. 133.-1856, August 8: Extracts from Commisioners' Journal shoving Awards under the Convention between Her Britannic Majesty and United States of February 8, 1853. Transmitted to the United States Senate, August 8, 1856.

SCHOONER WASHINGTON.

[Construction to the Treaty of 1818 relative to Fisheries on the Coasts of North America.]

The clause in said treaty in which the United States renounced the liberty "to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of his Britannic Majesty's dominions of North America," held not to include the Bay of Fundy.

The Bay of Fundy is held to be an open arm of the sea, so as not to be subject to the exclusive right of Great Britain as to fisheries. The schooner Washington, while employed in fishing in the Bay of Fundy, ten miles distant from the shore, was seized by her Britannic Majesty's crusier, and taken to Yarmouth, in Nova Scotia, and condemned, on the ground of being engaged in fishing in British waters, in violation of the provisions of the treaty relative to the fisheries, entered into between the United States and the British government on October 20, 1818.

Claim of damage was made before the commission, on the ground that the seizure was made in violation of the provisions of that treaty and of the law of nations.

Thomas, Agent and Counsel for the United States.

Hannen, Agent and Counsel for Great Britain.

Upham, United States Commissioner:

In 1843 the fishing schooner Washington was seized by her Britannic Majesty's cruiser when fishing broad, as it is termed, in what is called the Bay of Fundy, ten miles from the shore.

This seizure was justified on two grounds:

1. That the Bay of Fundy was an indentation of the sea, extending up into the land, both shores of which belonged to Great Britain, and that for this reason she had, by virtue of the law of nations, the

Under this Convention, Mr. Hornby was appointed by the British Government as its Commissioner and Mr. Upham by the United States, Mr. Joshua Bates was agreed upon as Umpire.

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