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ships, vessels, or boats within any harbor of Canada, or hovering within three marine miles of the coasts, &c., and to stay on board. Section 3, as amended, provides that any one of such officers, &c., may bring any ship, &c., hovering, &c., into port and search her cargo; and may also examine the master on oath touching the cargo and voyage; and that if true answers are not given the master shall forfeit $400; and that if the ship, &c., be foreign or not navigated according to the laws of the United Kingdom or Canada, and shall have been found fishing or preparing to fish, or to have been fishing (in British waters) within three marine miles of any of the coasts, &c., not included in the limits named in the convention of 1818, the ship, &c., with its tackle, &c., shall be forfeited. Section 4 provides that every person opposing an officer shall forfeit $800. Section 10 provides that in case of seizure the burden of proving the illegality shall be upon the owner or claimant. Section 12 requires heavy security to be given before a seizure can be contested. Section 14 limits a right of action for an illegal seizure to three months. This statute contains in an exaggerated form the worst features of the Nova Scotia statute of 1836.

Mr. Forsyth, in his instructions to Mr. Stevenson, already alluded to, said that that statute was a "violation of well-established principles of the common law of England, and of the principles of all just powers and of all civilized nations, and seemed 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." Mr. Everett stigmatized it as "possessing none of the qualities of the law of civilized states but its forms." And it was styled by a Senator of that time as "evidently designed to legalize marauding upon an industrious, enterprising class of men, who have no means to contend with such sharp and unwarrantable weapons of warfare." (Sabine's Fisheries, page 478.)

Mr. Thornton officially communicated to Mr. Fish the intention of the Canadian government to issue no more licenses to American fishermen.

1870, April 29,

1870, June 3.

Mr. Thornton communicated officially to the Department the instructions issued to the commander of the British inaval forces, by which it would appear that, notwithstanding the decision of the umpire in 1853, Her Majesty's government in 1866 were "clearly of the opinion that by the convention of 1818 the United States have 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 that they are not disposed, for the present, to enforce what they regard as their rights." (Foreign Relations, 1870, page 419.) The whole correspondence in the book last cited, from page 407 to page 434, bears directly upon the issues now raised.

1870, July 21.

Mr. Thornton informed Mr. Fish that he had "received instructions from Earl Granville to explain to Mr. Fish that the instructions respectiing the limits within which the prohibition of fishing is to be enforced against the United States fishermen are not to be considered as constituting an arrangement between the governments of the United States and of Great Britain, by which Canadian rights are waived, or the United States fishermen invested with any privilege."



I. That the acquisition of the right to American fishermen to fish on the in-shore fisheries, from which they are now excluded, is more im

portant as removing danger of collision than as of great intrinsic value. Its money-value is probably overestimated by the Canadians.

II. That the British headland doctrine has no foundation in the treaty, has been decided against Great Britain in a cause where it was the only issue, and is now insisted upon theoretically rather than practically.

III. That the right now asserted to exclude American fishermen from the open ports of the Dominion; to prevent them from purchasing bait, supplies, ice, &c.; to prevent them from transshipping their fish in bond, under color of the provisions of the convention of 1818, is an assump. tion and a construction of that instrument which was never acquiesced in by the United States; and is carrying out in practice provisions which were proposed to the United States commissioners by the British commissioners in 1818, and were rejected by the former.

IV. That the mackerel fishery, out of which the trouble mostly comes, is a matter that has come into existence since the negotiation of the treaty, and it is a subject for consideration whether the terms of the convention are fairly applicable to it.


It is suggested that this class of questions may be adjusted, eitherI. By agreeing upon the terms upon which the whole of the reserved fishing-grounds may be thrown open to American fishermen, which might be accompanied with a repeal of the obnoxious laws, and the abrogation of the disputed reservation as to ports, harbors, &c., &c.; or, failing that

II. By agreeing upon the construction of the disputed renunciation; upon the principles upon which a line should be run by a joint commission to exhibit the territory from which the American fishermen are to be excluded; and by repealing the obnoxious laws, and agreeing upon the measures to be taken for enforcing the colonial rights, the penalties to be inflicted for a forfeiture of the same, and a mixed tribunal to enforce the same. It may also be well to consider whether it should be further agreed that the fish taken in the waters open to both nations shall be admitted free of duty into the United States and the British North American Colonies.

In addition to the authorities hereinbefore cited, there is in the archives of the Department of State a copious and well-arranged memoir upon the subject of the fisheries, by Richard D. Cutts, esq., of the CoastSurvey, which will be placed at the disposal of the commissioners.


The President states in his Annual Message (December, 1870) that this river constitutes a material outlet to the ocean for eight States, with an aggregate, population of about 17,600,000 inhabitants, and with au aggregate tonnage of 661,367 tons upon the waters which discharge into it.

During the administration of Mr. John Quincy Adams, Mr. Clay demonstrated the natural right of the citizens of the United States to the navigation of this river, claiming that the act of the congress of Vienna, in opening the Rhine and other rivers to all nations, showed the judg. ment of European jurists and statesmen that the inhabitants of a country through which a navigable river passes have a natural right to enjoy the navigation of that river to and into the sea, even though passing through the territories of another power. This right does not exclude the co-equal right of the sovereign possessing the territory through which the river debouches into the sea to make such regulations relative to the police of the navigation as may be reasonably necessary; but those regulations should be framed in a liberal spirit of comity, and should not impose needless burdens upon the commerce which has the right of transit. (6 Foreign Relations, folio pages 757 to 777.)

If the claim made by Mr. Clay was just when the population of States bordering on the shores of the lakes was only three million four hundred thousand, it now derives greater force and equity from the increased population, wealth, production, and tonnage of the States on the Canadian frontier. Since Mr. Clay advanced his argument in behalf of our right, the principle for which he contended has been frequently, and by various nations, recognized by law or by treaty, and has been extended to several other great rivers. By the treaty concluded at Mayence, in 1831, the Rhine was declared free from the point where it is first navigable into the sea. By the convention between Spain and Portugal, concluded in 1835, the navigation of the Douro, throughout its whole extent, was made free for the subjects of both crowns. In 1853 the Argentine Confederation, by treaty, threw open the free navigation of the Parana and the Uruguay to the merchant-vessels of all nations. In 1856 the Crimean war was closed by a treaty which provided for the free navigation of the Danube. In 1858 Bolivia, by treaty, declared that it regarded the rivers Amazon and La Plata, in accordance with fixed principles of national law, as highways or channels opened by nature for the commerce of all nations. In 1859 the Paraguay was made free by treaty, and in December, 1866, the Emperor of Brazil, by imperial decree, declared the Amazon to be open, to the frontier of Brazil, to the merchant-ships of all nations. Sir Robert Phillimore, the greatest living British authority on this subject, while asserting the abstract right of the British claim, says: "It seems difficult to deny that Great Britain may ground her refusal upon strict law; but it is equally difficult to deny, first, that in so doing she exercises harshly an extreme and hard law; secondly, that her conduct with respect to the navigation of the St. Lawrence is in glaring and discreditable inconsistency with her conduct with respect to the navigation of the Mississippi. On the ground

that she possesses a small domain, in which the Mississippi took its rise, she insisted on the right to navigate the entire volume of its waters. On the ground that she possesses both banks of the St. Lawrence where it disembogues itself into the sea, she denies to the United States the right of navigation, though about half the waters of Lakes Ontario, Erie, Huron, and Superior, and the whole of Lake Michigan, through which the river flows, are the property of the United States." (See Phillimore's International Law, vol. 1, page 167 et seq., where the au thorities are collected and reviewed.)

1870, July 12.

The canals in aid of the lake and Saint Lawrence navigation are : 1. The Sault Ste. Marie Canal, in the dominions of the United States. Vessels between Lake Huron and Lake Superior must pass through this canal. 2. The Saint Clair Canal, in the dominions of the United States, which is a deepening of the channel to the depth of fourteen feet. 3. The Welland Canal, in British dominious, from Lake Erie to Lake Ontario. 4. Several canals between Lake Ontario and tidewater, in the aggregate about forty miles in length. 5. The canal between Lake Champlain and the river Saint Lawrence. Neither of the Canadian canals have at present the capacity of the American canals. A confidential memorandum was submitted by Great Britain as the basis of proposed arrangements on the subject of the navigation of the Saint Lawrence, and other inland waters of British North America, &c. This was in substance as follows: That if a satis factory reciprocity-treaty could be made, the United States should be restored to the enjoyment of the fisheries as under the old reciprocitytreaty; and also to the navigation of the inland waters of Canada; provided, further, that like permission in the United States should be granted to Canada. Canada was also willing to further agree to enlarge and improve the access to the ocean, provided she could have assurance of the permanency of the arrangement for reciprocity. The proposal further contemplated throwing open the coasting-trade to each party; reciprocal patent and copyright laws; arrangements for a reciprocal transit trade; extension of the provisions of the extradition treaties, and a re-adjustment of the Canadian excise-duty.

No steps were taken in the direction of carrying out these suggestions. The present importance of some of these points may be estimated from the following tables for the fiscal year ending June 30, 1869:

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II.-Statement showing the number, national character, and tonnage (computed from aggregate number of trips made during the season of navigation) of vessels which passed on and through the Welland, St. Lawrence, Chambly, Burlington Bay, Rideau and Ottawa Canals, St. Our's and St. Ann's Locks, during the fiscal year ending June 30, 1869, and amount of tolls collected thereon.

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