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They renounced the right to take fish within three miles of any of the coasts, bays, creeks, or harbours of Her Britannic Majesty's Dominions. Now comes the proviso to the renunciation:

Provided, however, that American fishermen shall be admitted to enter such bays or harbours for the purpose of shelter, repairing of damages therein, of purchasing wood, and obtaining water, and for no other purpose whatever.

That is what is renounced. The Envoys inform you that they choose to renounce the rights which were given up, and they chose to do it distinctly and in detail, that it might be known what was surrendered at the time. The true question is, What do they renounce by the language they use? I know that in using these terms they are excluded from the coasts, bays, harbours, and creeks; and the British Government raise a question of construction, namely, that we cannot fish within three miles of any of these bays; that we are excluded to a distance of three miles, not only from the coast, but also from these bays, including, in that term, Fundy and other large bays.

But, Sir, analyze the Article a little further, and you will ascertain what the terms of the exclusion are, and what they apply to. You have a right to come within three marine miles of the coasts, within three marine miles of the bays, and within three marine miles of the harbours and creeks. What, then, is meant by the word 'bays'? The latter part of the proviso which I have just read explains the whole of it. They have a right "to enter." "To enter" what? "To enter such bays," &c., undoubtedly referring to the bays mentioned in the former part of the Article-the bays renounced. And for what purpose have they this right to enter such bays? Why, Sir, they have a right to enter them for the purposes of shelter, and of obtaining wood and water, and for the purchase of bait. All these things are enumerated in the Treaty itself, and they have a right to enter all such bays for such purposes-that is, all the bays renounced. Now, let me ask if the Bay of Fundy is a bay to enter for shelter, or for wood, or water, or bait? No, Sir. And are these great open seas from headland to headland, in the Gulf of St. Lawrence (where I understand they have stretched a line, and forbid vessels to enter within these headlands, and thereby excluded them from some of the most important fisheries in that gulf), places where vessels are to enter for the purpose of obtaining bait, and shelter, and wood, and water? Sir, the term "such bays," and the uses to be made of the privilege, show most clearly and distinctly what the purposes and intentions were-and these were not the waters renounced by the term "bays." Then, in conformity with all this, we have the contemporaneous practical construction of this Treaty. These open bays were all enjoyed by the fishermen of the United States from the making of this Treaty, for more than twenty years, without any serious interruption or complaint, and they enjoyed this right practically as a construction acceded to on all hands. They were permitted to fish everywhere, except within three miles of the coast, being excluded only from the coast and the small bays and harbours of the coast. These were the bays renounced, and none others. All else were left open to the fishermen.

Now, this construction put upon the Treaty contemporaneous with its execution, and its continuance for twenty years, undisturbed,

seems to me to stamp it with a decided character of authority. The Treaty is capable of that construction without any violation to language, and no other fair or just construction, can be put upon it. Now, is it to be pretended, after all this has happened, that under the opinion of the Law Officers of the Crown, lines are to be stretched from headland to headland across the Bay of Fundy, and across certain portions of the Gulf of St. Lawrence, of still more doubtful character, and that our fishermen are to be excluded from grounds which they have always occupied? No, Sir. It is a stringent, unfair, and unjust construction given to the instrument, and moreover, it is one which, in my opinion, the people of this country never will acquiesce in.

The term “bay” is exceedingly indefinite in its application to the waters of the ocean; take, for instance, Hudson's Bay and Baffin's Bay, which are parts of the great ocean, and compare the use of the term applied to such waters, with its application to those indentations of the coast which serve as harbours of refuge, and are properly so called. There is also the Bay of Fundy, a large body of water, from which our fishermen are now sought to be excluded, but in which they have the right of fishing at the distance of three miles from the British coast, not only in accordance with the terms of the Convention, but also by another right, which was pointed out by the Senator from Michigan-the right of coterminous proprietorship; it having the coast of Maine on the one side, and the coast of Nova Scotia on the other, as forming the headlands of that bay. It flows along the coast of the United States for a considerable distance, and, therefore, even under the British construction, our fishermen are entitled to fish there. This language of the British authorities is much less applicable to the Bay of St. Lawrence, for that is as much a part of the open ocean as theh Gulf of Mexico. The headlands are a little nearer together, it is true, but it is as much a part of the open sea as any of those which all nations have a right to enjoy.

Now, to undertake to shut our fishermen out from that gulf, 168 is a very singular, and stringent, and, in my apprehension, a

very unjustifiable construction to the Treaty. I do not desire to enter into a discussion of this matter at length. This, it seems to me, is not the fit or proper occasion for that. But, nevertheless, as it is open to inquiry, and as the main point in controversy is the construction of this Treaty, and as I have not seen precisely this view given to it, I thought that I would make these statements, that the attention of the Senate might be drawn to it; and if it is drawn to it, and the construction which I have given is taken in connexion with the contemporaneous construction given at the time, together with the use of the fisheries for so long a time, I think the Senate will conclude that my construction is the true one.

If Great Britain wants a war, undoubtedly she can have it; but I do not believe she wants any such thing. But I do not believe she will maintain the position she has assumed, nor do I believe she will maintain her pretensions to an extent to violate and break up the pacific relations which now exist between us. I do not think she will do it; I hope not, at least.

No. 100.-1852, August 9: Letter from Mr. Crampton to the Earl of Malmesbury.

Confidential.

No. 115.

WASHINGTON, 9th August 1852.

My LORD: I left Marshfield on the 5th instant and arrived here on the evening of the 6th.

Mr. Webster having been earnestly requested by the President to repair immediately to Washington, would have accompanied me had not the delicate state of his health and the inclemency of the weather induced him to put off his journey to the following day. He will probably arrive here in a day or two.

At Mr. Webster's suggestion I immediately waited upon the President of the United States, who, Mr. Webster said, evidently felt a good deal of uneasiness respecting the view taken in the Senate of the fishery question, as evinced by a debate which took place on the 3rd instant, in regard to the President's message on that subject.

I have the honour to inclose herewith two extracts of the "National Intelligencer" containing a report of this debate and a notice of the message, which has not yet been printed.

Mr. Fillmore's tone and manner in a long and confidential conversation which I had with him on the subject of the fisheries, was frank and conciliatory. I remarked however with regret that, contrary to what I had been led to expect from my conversations with Mr. Webster at Marshfield, he did not seem to concur in the construction of the Convention of 1818 as regards the definition of bays, laid down in the opinion of the Advocate General and Attorney General of 30th of August 1841, but seemed rather disposed to adopt the view taken of that point by General Cass and Mr. Davis in the debate to which I have alluded. I say "rather disposed" because Mr. Fillmore in avowing his impression of the correctness of that view, frankly admitted that he had not yet sufficiently examined all the documents relating to the subject, and more particularly the opinion of the Law Officers of the Crown referred to, of which he requested me to furnish him with a copy in extenso.

I remarked to Mr. Fillmore that I had been struck in reading the speeches of the Senators who had impugned the opinion in question, by the absence of any allusion to the doctrine on the subject of the true definition of the maritime jurisdiction over bays which had been invariably held by the United States in regard to their own waters, and which was laid down by the highest American authorities, a doctrine exactly coinciding with that which had always been held by Her Majesty's Government.

The President not seeming to be clearly aware of the existence of any authoritative statement on this subject by an American authority, I read to him, with his permission, a short memorandum, which, with the assistance of an eminent lawyer of this city, I had drawn up for my own use, a copy of which I have the honour to inclose. Mr. Fillmore seemed struck with the justice of the arguments adduced by Chancellor Kent (a very high authority in this country) which he said would certainly be applicable to the case of two nations when their rights had not been modified by treaty,

but he seemed to apprehend that the Treaty of 1783 and the Convention of 1818 "taken together" would qualify the principle laid down by Kent as regarded the present question between Great Britain and the United States. I confess I was at a loss to seize the drift of his argument in this respect, for he did not contest the correctness of my remark that the rights in question, whatever they might be, now rested solely on the Convention of 1818.

With regard to the instructions given to Commodore Perry, alluded to in my despatch No. 107 of the 2nd instant, the President remarked that he had been careful to draw them up in such a manner as to avoid the possibility of any collision between the United States and British naval forces.

It was understood and agreed between Mr. Fillmore and myself that our conversations on the subject of the construction of the Convention of 1818 were to be considered as confidential and unofficial.

169

I stated on my part, that I had as yet received no further instructions from Her Majesty's Government upon the subject of the fisheries, than to make known to the United States the intention of Her Majesty's Government to take measures to protect the rights secured to British subjects in regard to them by the Convention of 1818, and this I had done by my note of the 5th ultimo. It was true I presumed that the rights so secured were properly defined by the opinion of the Law Officers of the Crown above alluded to, but this opinion had never been brought officially under my cognizance, nor had I been instructed to insist upon it on the present occasion. Her Majesty's Government would therefore stand entirely uncommitted by any remarks of mine on the subject.

The President entirely concurred in the correctness of my remark and observed on his own part that the Government of the United States having hitherto done no more than simply acknowledge the receipt of my communication, was not to be considered as having, as he expressed it, yet "made any point " on the matter which called for explanation on the part of Her Majesty's Government; but he added that it would always give him pleasure to discuss the question with me in all its bearings, extra-officially, with a view to prevent the adoption of any precipitate step on either side which might involve the two Governments in unfriendly or disagreeable_official correspondence.

In alluding to the possibility of settling the present question of the fisheries by a negotiation or by legislation embracing the whole subject of reciprocity of trade with the British North American Colonies, Mr. Fillmore seemed to fear that the excitement created in the country and which he was sorry to see was participated in by the Legislature, had exercised a very unfavourable influence upon this mode of settling the question. He hoped however that even were it found impossible to combine the settlement of reciprocity of trade with that of the present difference about the fisheries, means might nevertheless be found of arranging the latter independently; and he mentioned arbitration by a third Power as one of these means in case Great Britain and the United States found a difficulty in agreeing as to the precise signification of the Convention of 1818.

The President having in our conversation alluded to the supposed uninterrupted indulgence which had been for many years practically

accorded to American fishermen in the exercise of the liberty of fishing in British waters, I was enabled to demonstrate to him the incorrectness of this assumption by placing in his hands the paper which I have the honour to inclose, being a printed return of the Court of Vice Admiralty at Halifax which had just been forwarded to me by the Administrator of the Government of Nova Scotia, stating the number of American vessels which had been seized and condemned by the authorities of that colony for violations of the Convention of 1818-from the year 1838 to 1851.

This document clearly shows that however ineffectual may have been the efforts of the authorities of Nova Scotia to preserve the rights of British fishermen from encroachment, their efforts to do so had nevertheless been unremitting, and, at all events, constitute a substantial protest on their part against the violation of those rights however unsuccessful this protest may in the main have proved. I have the honour to be, with the greatest respect, My Lord, Your Lordship's most obedient humble servant, JOHN F CRAMPTON

The Right Honorable, EARL OF MALMESBURY

&c.

&c.

&c.

No. 101.-1852, August 10: Letter from the Earl of Malmesbury to Mr. Crampton.

No. 78

FOREIGN OFFICE, August 10, 1852. SIR: I have received and laid before the Queen your despatch No. 105 of the 20th ultimo, respecting the official publication, by the Secretary of State of the United States, of certain information relative to the measures adopted by Her Majesty's Government for the protection of British fisheries on the coasts, the mainland, and islands forming part of Her Majesty's North American Possessions.

Her Majesty's Government must necessarily entertain the sincerest regret that such a publication should have been made without what appears to Her Majesty's Government sufficient inquiry into the circumstances of the case; for the terms of friendly alliance which so happily subsist between the two nations would on the one hand not have warranted Her Majesty's Government in adopting any measures which might be held to be offensive to the United States, and, on the other hand, could not have justified the Government of the United States in supposing that any such measures were intended. Her Majesty's Government therefore, while it gives expression to the abovementioned regret, will assume at once that neither Government entertains towards the other any intention of acting discourteously or of provoking collisions or unfriendly feelings between the subjects and citizens of the two countries; and I will now proceed to explain to you how greatly this question of the protection of British fisheries has been misunderstood and misinterpreted in the United States.

170 In the first place it has been assumed by Mr. Webster that "with the recent change of Ministry in England has occurred entire change of policy:" and here I must take occasion to state, that the question of protecting British subjects in the exercise of their

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