So far as these so-called rules, regulations, and restrictions are concerned, it will be remembered that the only authority found in the treaty for imposing any restrictions upon American fishermen is found in the last part of the renunciatory clause where provision is made for imposing in the waters wherein the liberty of fishing is renounced by the treaty "such restrictions as may be necessary to prevent them from taking, drying or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them." It will also be remembered that under the treaty the American fishing vessels have the right of entering, for four specified purposes, the bays and harbors on the coasts where the right of fishing was renounced.

The act above referred to was in force until 1851, when it was substantially re-enacted by chapter 94 of the Nova Scotia Revised Statutes of that year."

In the province of Prince Edward Island, an act was adopted on April 15, 1843, similar in all its essential features to the Nova Scotia act of 1836, but no attempt was ever made to enforce this act against American fishermen.'

In the province of New Brunswick, an act was adopted on May 3, 1853, which closely follows the provisions of the Nova Scotia act of 1836.c

These acts were all superseded by the act of the Dominion of Canada passed May 22, 1868, entitled "An act respecting fishing by foreign vessels."a

This entire series of acts grew out of the Nova Scotia act of 1836 on which they were modelled and, so far as they have any relation to the fisheries article of the treaty of 1818, it will be found that all the questions presented by them were discussed in the diplomatic correspondence between the United States and Great Britain following the objections raised in 1841 by the United States against the treatment to which American vessels were subjected by Nova Scotia under the provisions of the act of 1836, which correspondence is herein elsewhere reviewed.

It

may be noted in passing, however, that section one of the act of the Dominion of Canada of May 22, 1868, authorized the Governor

General to grant to foreign vessels a license for a period not exceed

ing one year "to fish for or take, dry or cure any fish of fish of any kind whatever, in British waters, within three marine miles of any of the coasts, bays, creeks or harbors whatever, of Canada, not included within the limits specified and described in the first article" of the treaty of 1818. This provision for licenses will be considered in reviewing the period following the date of this act.

The act was further amended by the acts of May 12 and April 14, 1870, but no material change was made in the original act so far as it relates to the questions presented in this Case until 1886 when an amendment was adopted on November 26th of that year authorizing, for the first time, the search and seizure of vessels "being within any harbor of Canada," in case such vessel "has entered such waters for any purpose not permitted by treaty or convention, or by any law of the United Kingdom or of Canada for the time being in force."

All the Newfoundland legislation with respect to the fisheries which was in force at this time or adopted later contained a proviso that nothing therein should affect the rights and privileges granted by treaty, and so far as the rights of American fishermen under the treaty of 1818 are concerned no attempt was made to apply such legislation to them until a very recent period. Such legislation will be reviewed in its appropriate place.

United States Treasury Circular of January 21, 1836.

A note was written by the British Chargé at Washington to Mr. Forsyth, the Secretary of State, on January 6, 1836, calling his attention to complaints which had been preferred by the officers of customs at Quebec and Gaspé against fishermen of the United States "for encroaching on the limits of the British fisheries carried on in the river and gulf of St. Lawrence."a An examination of the complaints referred to, which were enclosed with this note, will show that the only actual encroachments specified in such complaints are those set forth as follows:

On a recent voyage in the custom-house boat, down the bay of Gaspé, I met three large schooners fishing for mackerel between the shores and the fishing barges, not two miles from land, and remonstrated with the master of one (the Bethel, of Provincetown.) They were all in the act of fishing, and although I advised the said

master to go off, he declined doing so, offering nothing in vindication but scurrilous contempt, and my means were inadequate to enforce any measures of redress."

The Secretary of State replied to the British Chargé, on January 18, 1836, stating that although the case of the schooner Bethel was the only encroachment specifically mentioned—

the President, desirous of avoiding just ground of complaint on the part of the British government on this subject, and preventing the injury which might result to American fishermen from trespassing on the acknowledged British fishing grounds, has, without waiting for an examination of the general complaint, or into that respecting the Bethel, directed the Secretary of the Treasury to instruct the collectors to inform the masters, owners, and others engaged in the fisheries, that complaints have been made, and to enjoin upon those persons a strict observance of the limits assigned for taking, drying, and curing fish by the American fishermen, under the convention of 1818."

Pursuant to the direction of the President as above stated, the Secretary of the Treasury issued, under date of January 21, 1836, the following circular letter of instructions:

Representations have been made to our government through the chargé d'affaires of his Britannic Majesty, of encroachments by the American fishermen upon the fishing-grounds secured exclusively to British fishermen by the convention between the United States and Great Britain, bearing date the 20th day of October, 1818.

The President, being desirous of avoiding any just cause of dissatisfaction on the part of the British government on this subject, and with a view of preventing the injury which might result to the American fishermen from trespassing upon the acknowledged British fishing-grounds, directs that you will inform the masters, owners, and others employed in the fisheries in your district, of the foregoing complaints; and that they be enjoined to observe strictly the limits assigned for taking, drying, and curing fish, by the fishermen of the United States, under the convention before stated.

In order that persons engaged in the fisheries may be furnished with the necessary information, the first article of the convention, containing the provision upon this subject, is annexed to this circular.c

Seizures in 1838-1840.

The only seizures of American fishing vessels which occurred during the period from 1836 to 1840 were made on the Nova Scotia coast in the years 1838, 1839, and 1840 under the Nova Scotia Act of 1836. It has already been shown that the only part of the treaty to which the provisions of this act related was the renunciatory clause, including the provision in respect of restrictions at the Appendix, p. 410. c Appendix, p. 410.

a Appendix, p. 409.

end of that clause; and it will be found upon an examination of the circumstances surrounding these seizures that they were all made for offenses alleged to have occurred under this clause of the treaty and within three marine miles of the shore.

In 1838 two vessels are reported to have been seized: the Hero and the Combine. The former was seized in June of that year at Turney's Cove, Gut of Canso and the latter in November, about three quarters of a mile from the western shore of the Gut of Canso.a

In 1839 ten vessels were seized: the Hart, the Magnolia and the Independence, seized in May in Tusket Island Harbor; the Java, seized in June in Beaver Island Harbor; the Eliza, the Battelle, the Hyder Ally and the Mayflower, seized in June at Beaver Harbor; and the Charles, seized at Canso."

As the result of an inquiry made on the part of the United States the Assistant Secretary of State, Mr. Vail, wrote to Mr. Fox, the British Chargé at Washington, on July 10, 1839, communicating to him information received by the Department showing that "some, at least, of those seizures were made for causes of a trivial character, and with a rigor not called for by circumstances," and he stated that his object in sending this communication was

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.

On August 14th of the same year Mr.Vail made a report to the President, in obedience to his direction requiring him to report, among other things, the seizure of American fishing vessels on the coast of Nova Scotia and "the nature and circumstances of the cases which have been presented to this government by our citizens as infractions of right on the part of the British authorities." In this report, after referring to a statement made on June 18, 1839, by the United States Consular Agent at Yarmouth, as containing the most detailed information in possession of the Department in relation to the "nature and circumstances of the cases," Mr. Vail says:

Appendix, p. 412.

a

c Appendix, p. 424.

According to that statement, the Independence is alleged to have anchored in the Tusket islands, and, while there, hired her nets to an English fisherman, for the purpose of taking fish on shares. The crew state that they were forced to anchor there by stress of weather; and that their nets had been lent, and not hired, for which they had received a few herrings.

The Magnolia is charged with having been engaged in fishing while at anchor in the Tusket islands, and with the fact having been acknowledged by the crew. This is denied; and the reason alleged for anchoring within British grounds is, want of shelter, wood and water. The charge against the Java, of having been engaged in taking fish in the Tusket islands, is admitted by the master.

Against the Hart is alleged that her crew were seen cleaning fish on board, while at anchor in the islands, and that her master had acknowledged that he had procured a quantity of herrings. The taking of fish is denied; and the fact of the crew having been seen cleaning fish is explained by stating that two barrels of herrings had been received from a British fisherman in recompense of services rendered. On the 20th of July, a letter from the consul of the United States at Halifax, dated the 27th of June, was received at this department, informing it of the seizure of the four vessels above referred to, and of seven others, viz: the "Shetland," seized at Whitehead, near Canso; the "Charles," at Canso; the "Mayflower," and a schooner, name unknown, at Guysborough; the "Battelle," "Hyder Ally,” and 'Eliza," at Beaver harbor.

66

The "Shetland" was seized on the ground of the master having sold to a lad who came on board, while the vessel lay at anchor in the harbor of Whitehead, whither she had been forced by stormy weather, a pair of oil-cloth trousers, and small quantities of tea and tobacco. The master states that in doing so he yielded to the importunities of the lad, whom he believes to have been sent purposely to entrap him into an attempt at smuggling. He denies having caught fish within British limits.

With the exception of the "Eliza," which was likewise compelled to make a harbor by bad weather, and the crew of which deny having taken fish within the British limits, or having sold or bartered any articles whatever, the particulars of the cases are not given; but in communications addressed by the consul to the Lieutenant Governor of Nova Scotia, asking his interference in behalf of the owners of the seized vessels, he urges the exercise of indulgence and mercy, on the ground that some of the sufferers had only erred in a slight degree either from ignorance or temptation, and without intention to violate regulations, of the existence of which they might, perhaps, never have heard.a

In closing his report on these seizures, Mr. Vail sums up the situation as follows:

From these statements it will appear that the only cases of seizure of which anything is known at the department, not being made on the coasts of Newfoundland or Labrador occurred at places in which,

a Appendix, p. 438.