No. 258.
Mr. Fish to Mr. Thornton.
Sir: I have the honor to acknowledge your note of 18th instant, addressed to Mr. Davis, inclosing a dispatch from the Governor General of Canada, forwarding copy of a “minute of the privy council,” and also a report of the minister of marine and fisheries, dated 28th April last.
The reiteration in this respect of the assurance which you had previously given, that there could be no intention on the part of the Dominion of Canada to abridge any rights to which the citizens of the United States are entitled by treaty, is in accordance with the confident expectation of this Government.
It had, however, attracted the notice of the Government that, by an order in council of 8th January last, it was ordered that “henceforth all foreign fishermen be prevented from fishing in the waters of Canada.” The question arose, What are the waters of Canada?
At the date of the treaty of 1818 the boundary of Canada, as understood, was defined by the 27 chap. 49 George III, entitled “An act for establishing courts of jurisdiction in the island of Newfoundland and the islands adjacent, and for reannexing part of the coast of Labrador and the islands lying on said coast to the government of Newfoundland,” (March 30, 1809,) by the 14th section of which it was enacted “that such parts of the coast of Labrador from the river Saint John to Hudson’s Streights, and the said island of Anticosti, and all other smaller islands so annexed to the government of Newfoundland by the said proclamation of the seventh day of October, one thousand seven hundred and sixty-three, (except the said islands of Madelaine,) shall be separated from the said government of Lower Canada, and be again reannexed to the government of Newfoundland.”
The mouth of the river Saint John, referred to in this act, is understood to be between the 64th and 65th meridian of longitude west from Greenwich.
We further understood that in June, 1825, by the 9th section of cap. 59, 6 George IV, entitled “An act to provide for the extinction of federal and seigniorial rights and burthens in lands held á titre de tief and á titre de cens, in the province of Lower Canada, and for the gradual conversion of those tenures into the tenure of free and common socage and for other purposes relating to said province,” it was enacted that so much of the said coast as lies to the westward of a line to be drawn due north and south from the bay or harbor of Ance Sablon, inclusive, as far as the 52d degree of north latitude, with the island of Anticosti, and all [Page 418] other islands adjacent to such part as last aforesaid of the coast of Labrador, shall be, and the same are hereby, reannexed to and made a part of the said province of Lower Canada, and shall henceforward be subject to the laws of the said province, and to none other.
The bay or harbor of Ance Sablon is understood to be in the longitude of about 57° 8', at or near the entrance of the Straits of Belle Isle.
The treaty of 1818 secures to the inhabitants of the United States, in common with the subjects of her Britannic Majesty, the liberty to take fish of any kind on the shores of the Magdalen Islands, arid also on the coasts, bays, harbors, and creeks from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belle Isle, and thence northwardly, &c.
Mount Joly, thus fixed by treaty as the westernmost limit on the coast of Labrador of the liberty of fishing for the inhabitants of the United States, is understood to be in the longitude of about 61° 40' From that point eastward and northward, on the shores of what was then called Labrador, the fishermen of the United States have the liberty to take fish.
The act last above recited seems to establish the boundaries and the jurisdiction of Canada as extending to the bay of Ance Sablon, about four and a half degrees of longitude to the east of Mount Joly, and to include the Magdalen Islands.
It was under the impression that this act establishes the jurisdiction and the boundary of Canada, as extending to a line drawn due north and south from the bay or harbor of Ance Sablon, and including the Magdalen Islands, that on the 21st April last I invited your attention to the first paragraph of the order in council of the Dominion of Canada on the 8th January last, declaring “that henceforth all foreign fishermen be prevented from fishing in the waters of Canada,” as contemplating a possible interference with the rights guaranteed to the United States under the treaty of 1818. The minister of the privy council and the report of the minister of marine and fisheries, of which you have given me copies, give assurance of the intent of the authorities of the Dominion government not to abridge those rights; but the order in council may be interpreted by those to whom its execution is intrusted to authorize their interference with fishermen of the United States while in the exercise of their guaranteed liberty. If our understanding that the boundary and jurisdiction of Canada extend to the bay or harbor of Ance Sablon, and include the Magdalen Islands, be correct, “the waters of Canada” embrace the coast of Labrador from Mount Joly to the bay of Ance Sablon, and include also the Magdalen Islands. Desirous to avoid the possibility of any misapprehension on the part of those who may be charged with the execution of the order in council, I beg to call your attention to the acts to which I have referred, and to request, in case I am in error with regard to the eastern boundary and the extent of jurisdiction in Canada, that you will advise me of the real boundary and jurisdiction. If I am correct in this respect, and if that part of the coast of what in 1818 was known as Labrador included between Mount Joly and the bay or harbor of Ance Sablon, or the Magdalen Islands, be in “the waters of Canada,” I do not doubt that the authorities of the Dominion will recognize the necessity of such modification of the order in council of the 8th of January last, or of such additional instructions to be given as will secure the fishermen of the United States from interference while in the exercise of the liberty guaranteed to them by the treaty of 1818.
I have the honor to be, with the highest consideration,