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Strait of Canso.

July 15, 1839, Mr. Primrose, United States consul at Pictou, Nova Scotia, complained to the secretary of that province that American vessels bound to that port had been fired at and brought to at the Strait of Canso and compelled to pay light dues. He inquired whether the collectors were authorized to levy the duties on American vessels not bound to any port or place within the strait, and added: "The imposition of any tax by the province of Nova Scotia upon American vessels engaged in the prosecution of the fisheries using that passage in transitu, would appear to deprive it of the character of constituting a portion of the high seas."

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The colonial secretary replied that the collectors had been instructed not to demand light duty from vessels bound to Pictou, unless they came to anchor within the strait; but he said that the lieutenant-governor could not "admit the character given to the Gut of Canso as a part of the high seas until recognized by some authoritative decision, as the correctness of its application to that narrow passage lying entirely between the lands of this province may be questionable, more especially as an open communication around the eastern end of the island of Cape Breton is to be found on the high seas to the Gulf of St. Lawrence, or any other point to which the Strait of Canso can be made subservient."

This claim was mentioned by Mr. Forsyth, Secretary of State, in an instruction relating to the fisheries, addressed to Mr. Stevenson, American minister in London, under date of Feb. 20, 1841. In this instruction Mr. Forsyth, after pointing out certain oppressive features of the Nova Scotian act of 1836 and the regulations made thereunder, said: "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

a Mr. Primrose, U. S. consul, to the Hon. Sir R. D. George, provincial secretary, July 15, 1839, S. Ex Doc. 100, 32 Cong. 1 sess. 73–74.

Sir R. D. George, provincial secretary, to Mr. Primrose, consul at Pictou, Nov. 9, 1839, S. Ex. Doc. 100, 32 Cong. 1 sess. 81.

other nations, conflicts either with the letter or the spirit of our treaty obligations." a

Mr. Stevenson duly communicated to Lord Palmerston the purport of his instructions, including the part embraced in the foregoing quotation. Not long afterwards the British Government submitted to the law officers of the Crown a series of questions, embraced in the report adopted by the House of Assembly of Nova Scotia, to which Mr. Forsyth had referred when he spoke of the "assertion" of the provincial legislature. In the series of questions there was the following:

"4. Have American vessels, fitted out for the fishery, a right to pass through the Gut of Canso, which they cannot do without coming within the prescribed limits, or to anchor there or to fish there; and is casting bait to lure fish in the track of the vessels fishing, within the meaning of the convention?"

August 30, 1841, the law officers replied:

"4. By the treaty of 1818 it is agreed that American citizens should have the liberty of fishing in the Gulf of St. Lawrence, within certain defined limits, in common with British subjects; and such treaty does not contain any words negativing the right to navigate the passage of the Gut of Canso, and therefore it may be conceded that such right of navigation is not taken away by that convention; but we have now attentively considered the course of navigation to the Gulf by Cape Breton, and likewise the capacity and situation of the passage of Canso, and of the British dominions on either side, and we are of opinion that, independently of treaty, no foreign country has the right to use or navigate the passage of Canso; and attending to the terms of the convention relating to the liberty of fishery to be enjoyed by the Americans, we are also of opinion that that convention did not either expressly or by implication concede any such right of using or navigating the passage in question. We are also of opinion that casting bait to lure fish in the track of any American vessels navigating the passage would constitute a fishing within the negative terms of the convention.” c

It does not appear that this document was ever officially communicated to the United States, although the Government of Nova Scotia continued to agitate the question of prohibiting the passage of the

a Mr. Forsyth, Sec. of State, to Mr. Stevenson, min. to England, No. 89, Feb. 20, 1841, S. Ex. Doc. 100, 32 Cong. 1 sess. 106, 108. Mr. Forsyth inclosed with his instruction a copy of the journal and proceedings of the house of assembly of Nova Scotia at its session of 1839-40.

Mr. Stevenson, min. to England, to Lord Palmerston, Sec. of State, March 27, 1841, S. Ex. Doc. 100, 32 Cong. 1 sess. 113.

e Sabine's Report on the Fisheries, 228, 229, 230.

a For. Rel, 1873, III, 284,

strait. The subject, however, was dropped after the conclusion of the reciprocity treaty of 1854.

In 1870 Mr. Jackson, United States consul at Halifax, four years after the termination of that treaty, said: "It has been intimated that still further restrictions will be imposed upon our fishermen, and that an attempt will be made to exclude them from the Strait of Canso. . . . The Strait of Canso for more than a century has Leen open as a public highway to the vessels of all friendly nations.” " The question of the fisheries was again set temporarily at rest by the treaty of Washington of May 8, 1871.

The unratified treaty of February 15, 1888, contained the following clause: “Art. IX. Nothing in this treaty shall interrupt or affect the free navigation of the Strait of Canso by fishing vessels of the United States.” e

3. RECIPROCITY TREATY, 1854.

$165.

With a view to adjust the various questions that had arisen concerning the convention of 1818, the British Government in 1854 sent Lord Elgin to the United States on a special mission, and on June 5, 1854, he concluded with Mr. Marcy, who was then Secretary of State, a treaty in relation to the fisheries, and to commerce and navigation. By the first article of this treaty it was provided that, in addition to the liberty secured to the United States fishermen by the convention of October 20, 1818, of taking, curing, and drying fish on certain of the coasts of British North America, the inhabitants of the United States should have, in common with the subjects of His Britannic Majesty," the liberty to take fish of every kind, except shell-fish, on the seacoasts and shores, and in the bays, harbors, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the coasts and shores of those colonies and the islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coast in their occupancy for the same purpose."

The liberty thus defined applied solely to the sea fishery. The salmon and shad fisheries, and all fisheries in rivers and the mouths of rivers, were expressly reserved for British fishermen.

a Sabine's Report, 263, 287–290.

For. Rel. 1870, 430.

c S. Ex. Doc. 113, 50 Cong. 1 sess. 135.

On the other hand, it was provided by the second article of the treaty, that British subjects should have, in common with the citizens of the United States, "the liberty to take fish of every kind, except shell-fish, on the eastern sea coasts and shores of the United States north of the 36th parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbors, and creeks of the said sea coast and shores of the United States and of the said islands," on precisely the same conditions, including the reservation of the salmon, shad, and all river fisheries, as were made with respect to the reciprocal liberty secured to the American fishermen by the preceding article."

By the third article of the treaty, provision was made for reciprocal free trade between the United States and the British colonies in North America in various articles, being the growth and produce of either country; and by the fourth article, certain stipulations were established as to the navigation of the River St. Lawrence and Lake Michigan, and the use of such Canadian canals as formed part of the water communication between the Great Lakes and the Atlantic Ocean.

Termination of reciprocity

treaty.

with its provisions.

This treaty came into operation on March 16, 1855. It was terminated March 17, 1866, in accordance with a notice given by the United States in conformity From 1866 to 1869 the Canadian government granted licenses to American fishing vessels, at first at the rate of 50 cents and finally at the rate of $2 a ton for the enjoyment during each season of the same liberties as they had exercised under the reciprocity treaty."

Licenses.

In 1868, however, the Dominion Parliament passed an "act respectDominion legisla- ing fishing by foreign vessels," which was amended in 1870, and which practically reenacted, with increased stringency of regulations and penalties, the Nova Scotian statute of 1836.d

tion.

a For the proceedings of the commissioners who decided upon and denoted the reserved places under the treaty, see Moore, Int. Arbitrations, I. 426–494, where the awards are given. The maps are in the Department of State.

Dip. Cor. 1865, I. 93, 184, 259. See, in this relation, a pamphlet entitled "Letter to the Hon. William H. Seward, Secretary of State, in answer to one from him on the resolution of the Senate as to the relations of the United States with the British provinces and the actual condition of the question of the fisheries," by E. H. Derby, January, 1867, Washington, 1867, 50 pp. with an appendix of 245 pp. containing a preliminary report on the reciprocity treaty of 1854.

Dip. Cor. 1866, I. 235; Papers relating to the Treaty of Washington, VI. 286; Mr. Hunter, Acting Sec. of State, to Mr. Thornton, Brit. min., June 12, 1868, MS. Notes to Gr. Br. XIV. 363.

d For. Rel. 1870, 408, 414.

Position of the Imperial Govern

ment.

In 1870 the system of granting licenses was discontinued, and a copy of a letter addressed by the secretary of state for the colonies to the lords of the admiralty on April 12, 1866, defining the views of the British Government as to the construction of the convention of 1818, was communicated to the United States. In this letter it was said that Her Majesty's Government were clearly of the opinion that by the convention of 1818 the United States had renounced the right of fishing, not only within three miles of the colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek." But the question, What is a British bay or creek? was one that had been the occasion of difficulty in former times. letter said:

The

"It is, therefore, at present the wish of Her Majesty's Government neither to concede nor for the present to enforce any rights which are in their nature open to any serious question. Even before the conclusion of the reciprocity treaty Her Majesty's Government had consented to forego the exercise of its strict right to exclude American fishermen from the Bay of Fundy, and they are of opinion that during the present season that right should not be exercised in the body of the Bay of Fundy, and that American fishermen should not be interfered with, either by notice or otherwise, unless they are found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839. . . . Her Majesty's Government do not desire that the prohibition to enter British bays should be generally insisted on, except when there is reason to apprehend some substantial invasion of British rights. And in particular they do not desire American vessels to be prevented from navigating the Gut. of Canso (from which Her Majesty's Government are advised they may lawfully be excluded), unless it shall appear that this permission is used to the injury of colonial fishermen, or for other improper objects."

Instructions of 1870.

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It appears that instructions were given in 1870 not to seize any vessel unless it were evident, and could be clearly proved, that the offense of fishing had been committed and the vessel itself captured within three miles of land. In view of the claims previously made by the British

a For. Rel. 1870, 408. See circular of Mr. Boutwell, Secretary of the Treasury, May 16, 1870, as to the discontinuance of licenses and the inshore fisheries, For. Rel. 1870, 411. See, also, Mr. Bayard, Sec. of State, to Mr. Fairchild, Sec. of Treasury, April 1, 1886, 159 MS. Dom. Let. 682.

For. Rel. 1870, 419-420.

c Id. 421.

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