Captain Dodd to Provincial Secretary Howe.

PORT HOOD, CAPE BRETON, August 29, 1852. SIR: Since my report of the 23rd I have been down the eastern shore, and returned to Port Hood on the 29th. On Friday last I had the honor of seeing the Admiral on board H. M. S. Basilisk, off Port Hood Island, and received from him a copy of two statements made by American fishermen, with reference to information said to have been given by me.

1st. R. W. Armistead, Master of the U. S. Schr. "Agenora," of Frankfort, states that, about the 27th of July last, he went on board the Schr. "Responsible," and was informed by her Commander, that if he found him fishing within three marine miles of a line drawn from Cape Gaspe to the north point of Prince Edward Island, he would seize his vessel.

2nd. William Page, Master of the U. S. Schr. "Paragon," of Newburyport, stated to Mr. Sutton, that, on or about the 23rd day of July, he was informed by the Commander of the Schr. "Responsible" that he would draw a line from headland to headland on any part of the Coast of Nova Scotia, and seize any vessel he found fishing within three marine miles of such a line.

These statements I have copied verbatim, and although not called upon to answer them, I still think it my duty to do so. The first is altogether false; there has not been any American Captain on board the Schr. "Responsible" since I have had charge of her, except a Captain Dixon, of the Schooner Empire, which vessel was repairing at that time in the Strait of Canso; and again, on the twenty-seventh of July, the Schooner Responsible was coming up from Margaree Island, both which facts can be attested to if required by half the Ship's Company; and as I had nothing to do at Prince Edward's Island, it is scarcely probable, I should have made any Statement with reference to any lines to be drawn on that Coast.

The assertion of William Page, Master of the Schooner Paragon, may be correct, for I did to several American Captains (and he may have been one of them) say, that I should draw a line from the headlands of the Coast and Bays of Cape Breton, and seize all American Vessels found trespassing within three marine miles of such line; and such are my intentions until further orders, as I consider myself bound to do so by my instructions, in which I am referred to the Convention of 1818; and as it would be great presumption in me to attempt to put any construction on that Treaty, I feel myself bound by the opinions of the Queen's Advocate, and Her Majesty's Attorney General, given in 1841; and also by the result of the trial of the American Schooner Argus, which vessel was seized by me within a line drawn from Cow Bay Head to Long Point, near Cape North, Cape Breton, and condemned.

As the Halifax and Daring are about this part of the Coast, I shall proceed through the Strait of Canso, and down the South Shore of Cape Breton, and return by Cape North.

I have the honor to remain, Sir,

Your obedient Servant,

P. S. DODD.

The Honorable the PROVINCIAL SECRETARY, &c., &c., &c.

Provincial Secretary Howe to Captain Daly.

PROVINCIAL SECRETARY'S OFFICE, September 1st, 1852.

SIR: Referring to your Letter of the 25th ult., I beg to acquaint you, that American Vessels which have regularly entered at a Port where there is a Revenue Officer, can land fish or purchase barrels, but they have no right to an irregular use of this privilege at places where no Officer is stationed.

I am, Sir, Your Obedient Servant,

CAPT. DALY, Commanding Schr. Daring.

JOSEPH HOWE

Captain Dodd to Provincial Secretary Howe.

PORT HOOD, CAPE BRETON, September 1st, 1852. SIR: I have the honor to acknowledge the receipt of your letter, dated 26th August, enclosing a copy of a Despatch from Vice Admiral Sir George F. Seymour, with statements of certain Masters of American Fishing Vessels, a copy of which statements was handed to me by the Vice Admiral on the Twenty-seventh of August, and which I answered on the Twenty-ninth.

The orders not to detain Vessels unless found trespassing within three miles of land shall be strictly attended to.

I have, &c.,

The Honorable the PROVINCIAL SECRETARY.

P. S. DODD.

Extracts from the journal of the legislative assembly of Newfound

land, 1864.

Duke of Newcastle to Governor Bannerman.

Copy of a despatch from the secretary of state for the colonies in reply to a request from the governor that the copy of a draft bill for regulating the fisheries may be looked over, and any parts pointed out, such as probably might not be sanctioned by the Crown.

DOWNING STREET, 3d August, 1863. SIR: I have the honor to acknowledge the receipt of your despatch No. 34 of the 29th June, enclosing a printed copy of the proceedings of a committee appointed to enquire into the state of the fisheries of Newfoundland, together with a draft bill framed with a view to their proper regulation, and requesting that the provisions of this draft bill may be looked over, and any parts of it pointed out, such as probably might not be sanctioned by the Crown if it were passed. 2. I apprehend that it is not your expectation that I should express an opinion respecting the practical modes of conducting those fisheries, it being plain that the inhabitants of Newfoundland are or ought to be best capable of judging what regulations are calculated to increase the productiveness of their own seas, and with respect to imperial interests I do not think it desirable to anticipate that close inquiry to which any act passed upon this matter must be subjected in order to ascertain that it does not infringe upon the right guar

anteed to foreigners or run counter to any principle of imperial policy.

3. The observations which suggest themselves to me, however, on the perusal of the draft bill are

1st. That if any misconception exists in Newfoundland respecting the limits of the colonial jurisdiction, it would be desirable that it should be put at rest by embodying in the act a distinct settlement that the regulations contained in it are of no force except within three miles of the shore of the colony.

2nd. That no act can be allowed which prohibits expressly, or is calculated by a circuitous method to prevent, the sale of bait.

3rd. That all fishing acts shall expressly declare that their provisions do not extend or interfere with any existing treaties with any foreign nation in amity with Great Britain.

4th. That, in any part of the colonial waters, it would be highly unjust and inconvenient to impose upon British fisherman restrictions which could not, without violating existing treaties, be imposed upon foreigners using the same fisheries. On this point, however, I would refer you to my despatch, marked "confidential," of the 2nd of February.

I have, &c., &c.

Governor Sir A. BANNERMAN.

NEWCASTLE.

The Marquis of Salisbury to M. Waddington.

FOREIGN OFFICE, July 9, 1889.

M. L'AMBASSADEUR: In the note which I had the honour of addressing to your Excellency on the 28th March last, relative to the question of the lobster fishery in the waters of Newfoundland, I stated that I proposed to address to you a further communication in reply to the observations contained in your note of the 7th December on the general subject of the Newfoundland fisheries.

The note in question treats of the claim of Messrs. Dupuis-Robial and Besnier for compensation on account of the diminution of their catch of fish, which they attribute directly to the use of cod-traps by British fishermen.

In my note of the 24th August, 1887, relative to this claim, I had stated that the right of fishery conferred on the French citizens by the Treaty of Utrecht did not take away, but only restricted during a certain portion of the year and on certain parts of the coast, the British right of fishery inherent in the sovereignty of the island. And in my subsequent note of the 28th July last I observed that the right of British subjects to fish concurrently with French citizens has never been surrendered, though the British fishermen are prohibited by the second paragraph of the Declaration of Versailles from interrupting in any manner by their competition the fishery of the French during the temporary exercise of it which is granted to them. In your note of the 7th December your Excellency meets these arguments by asserting that the French had always had the exclusive right of fishery in virtue of their sovereignty over Newfoundland. That when that sovereignty was transferred to England by the Treaty of Utrecht, the right of fishery reserved to subjects of

the King of France on a portion of the coast necessarily remained an exclusive right in the absence of any express provision to the contrary. Further, that in the negotiations at Versailles in 1782-83 the English negotiators, by an appeal to the moderation of the Court of Versailles, succeeded in obtaining, not any admission of a concurrent right of fishery, but an abandonment by France of fishing rights on part of the coasts on which British subjects had encroached, in exchange for exactly similar rights on an equivalent portion of the coast elsewhere. That in the negotiations for the Peace of Amiens of 1802 the Cabinet of Paris had thought it would be desirable to establish the French right to exclusive fishery by a modification of Article XIII of the Treaty of Utrecht, but that Mr. Fox did not consider such an amendment opportune, and urged that it would be sufficient to return purely and simply to the text of 1783, as the British Government had never questioned the French right to exclusive fishery.

This train of reasoning presents a historical view of the subject which is entirely at variance with the information in the possession of Her Majesty's Government. I have thought it would contribute to the elucidation of the subject that the several points which I have briefly recapitulated above should be examined in detail by the light of the authentic records at the disposal of this Department and the Colonial Office, and the result of this examination has been embodied in a Memorandum of which I inclose copies, and to which I request your Excellency's attention.

You will find what appears to Her Majesty's Government to be indisputable evidence that the sovereignty of Newfoundland has from the earliest times belonged to the British Crown, and that the interests of France were limited to the possession of Placentia, and to temporary occupancy by conquest or settlement of certain portions of the adjacent coast. All these interests were abandoned by the Treaty of Utrecht, which stipulated that no claim of right should ever henceforward be advanced on behalf of France, and that it should be allowed to her subjects to catch fish and dry them only on land on a certain specified portion of the coast. The concurrent right of British subjects to fish off this part of the coast was undoubtedly asserted and put in practice subsequent to the Treaty, and not later than 1766, and a short time afterwards it began to give rise to repeated complaints from the French Government, not on the ground that it was in itself contrary to the Treaty, but because of the manner in which it was exercised, which was said in many cases practically to derogate from and annul the liberty of fishery accorded to the French. The arrangements made at Versailles in 1783 were not obtained by appeals to the moderation of the French Government with the view of obtaining concurrent rights of fishery for British subjects, but were the outcome of negotiations in which the French Plenipotentiary endeavoured, but unsuccessfully, to obtain the explicit concession of an exclusive right of fishery for the French. It is no doubt by an accidental error merely that Mr. Fox, who was Secretary of State during the latter portion of these negotiations, is mentioned by your Excellency as having given certain assurances during the later negotiations for the Treaty of Amiens in 1802, when he was not a member of the Government. But I have been unable to discover, either in the instructions of Lord Hawkes

bury in this latter period, or in the Reports of Lord Cornwallis, who was the British Plenipotentiary, any indication that either of them gave any assurance whatever that the British Government had never questioned the exclusive character of the right of fishery accorded to the French under the Treaty of Utrecht. Such a statement on their part would indeed have been in absolute contradiction to the facts.

The question therefore hinges mainly on the interpretation to be given to the arrangements made at Versailles in 1783, and on this point I must be permitted to invite special attention to paragraphs 29-38 of the Memorandum which I have the honour to inclose, and to refer your Excellency to Lord Palmerston's note to Count Sebastiani of the 10th July, 1838, of which your Excellency has only quoted a small, and that, as it seems to me, the least significant, portion.

For you will find, on reference to the original, that certain words have been omitted, in making the extract, which materially alter the sense, and that the privilege which, as Lord Palmerston states, "has. in practice, been treated by the British Government as an exclusive right during the period of the fishing season, and within the prescribed limits," is described by him as "a privilege which consists in the periodical use of a part of the shore of Newfoundland for the purpose of drying their fish;" while in the very next sentence Lord Palmerston goes on to say that "the British Government has never understood the Declaration to have had for its object to deprive British subjects of the right to participate with the French in taking fish at sea off that shore, provided they did so without interrupting the French cod fishery." A perusal of this passage of the preceding paragraph, and of those which succeed it, showing the grounds on which Lord Palmerston based his conclusion, will, I think, convince your Excellency that the arguments advanced in my previous communications are in consonance with the views which have always been expressed by Her Majesty's Government.

To turn to the more immediate object of this correspondence, the question of the injury said to be caused to the French fishery by the use of cod-traps by British fishermen, I have already had the honour of informing your Excellency that, pending the enforcement of the Act which has been passed by the Colonial Legislature for the entire suppression of these traps, special instructions have been issued to the British naval authorities which Her Majesty's Government trust will be effectual in preventing any undue interference by such engines with the fishery of French citizens. In this and in all other respects it is the earnest wish of Her Majesty's Government to do all in their power to insure the enjoyment by the French fishermen of the rights given to them under the Treaty and Declaration of 1783.

But I can only repeat that the claims preferred on account of Messrs. Dupuis-Robial and Besnier do not appear to Her Majesty's Government to be such as they can consent to entertain. These claims rest virtually on the fact that the amount of fish caught by the complainants was considerably below the average of former seasons, that they believe from hearsay evidence that British fishermen who used cod-traps in the vicinity were more successful, and that they attribute their own want of success to this cause, as they do not know to what else it could be attributable. It is admitted by some