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2570.

PUBLIC RECORD OFFICE

།།། །། །།

Reference :-

WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

C.O. 88511 PUBLIC RECORD OFFICE, LONDON

SIB,

No. 400.

(CANADA.)

(NORTH AMERICA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, March 16, 1866 We are honoured with your commands, signified in Sir Frederic Rogers' letter of the 12th March instant, stating that he was directed by you to enclose for our con- sideration the accompanying papers, viz.:

1. A statement drawn up in the Colonial Office, respecting the United States fishery rights on the shores of British North America, as affected by the approaching termi- nation of the Reciprocity Treaty. To this statement is appended an extract from an opinion given on August 30th, 1841, by Sir J. Dodson and Sir J. Wilde.

2. A letter addressed to Mr. Addington on the same subject by Dr. Travers Twiss on April 28th, 1854.

3. Copies of certain despatches, including a complaint on this subject made in 1841 by Mr. Stevenson, the Minister of the United States in this country, and a Despatch from the Governor of Nova Scotia in answer to these complaints.

4. Copies of the Nova Scotia and New Brunswick Acts alluded to by Mr. Stevenson

and in the statement before mentioned.

Sir Frederic Rogers was also pleased to state that he was directed by you to request that we would favour you with our opinion on the following questions:-

1. Whether we concur in the views expressed by Sir J. Dodson and Sir F. Wilde, and quoted in the first of the accompanying papers;

2. If so, whether we are able to suggest any such definition of the words "bay. creek, or harbour" as would enable any officers charged with the enforcement of British rights to judge what waters were to be considered as falling within the mean- ing of those terms for the purposes of the Treaty of 1818, and what waters, though lying within two distant headlands, are to be considered as open sea;

And 3. Whether the Acts passed by the Legislatures of Nova Scotia and New Brunswick contain any provisions which are not justified by international law or the usage of nations, or which, for any other reason, Her Majesty's Government could not properly be advised to support or enforce.

We are also honoured with your commands, signified in Sir Frederic Rogers' letter of the 13th March instant, stating that with reference to his letter of yesterday respecting the fisheries on the shores of British North America that he was directed by you to transmit to us the enclosed collection of papers printed for the use of the Foreign Office in 1854, together with a memorandum pointing out those papers which especially require perusal.

In obedience to your commands, we have taken these papers into our consideration and have the honour to

Report

That we concur generally in the opinions given by the former Law Officers and by Dr. Twiss as to the proper construction of the Convention of 1818, and the extent of the exclusive fishery rights of Great Britain upon the coast and in the bays, creeks, and harbours of the British North American Provinces.

But we think it will certainly be advisable, while maintaining these rights, to proceed with the greatest practicable degree of moderation and caution in enforcing them against United States fishing vessels upon the expiration of the present treaty.

On referring to the Colonial Acts (Nova Scotia, Revised Statutes, Tit. 25, chapter 94, and New Brunswick Public Statutes, 16 Victoria, chapter 69) it is satisfactory to find that seizures of foreign vessels for unlawful fishing in the waters of the British North American Provinces can only be effected under the authority of the Colonial Govern- ments, and that the control of all legal proceedings under those Acts is vested in the Colonial law officers of the Crown. The provisions of those Acts do not appear to us to be substantially different from those of the Imperial Statutes in pari materia, and we are not prepared to suggest that they should undergo any extensive alterations, but we think that the provision that the burden of proving the illegality of a disputed seizurǝ should in all cases rest upon the claimant of the vessel seized may be open to reason- able objection, as applied to a foreign vessel, and that it would be likely (if enforced

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