1280 MISCELLANEOUS. 



Common charity might dictate that their improvidence should not be 

 punished with an interdiction against procuring articles of so indis- 

 pensable necessity at the earliest possible moment. Lord Falkland 

 fives hi the middle of the nineteenth century: he is a British peer: he 

 is yet the governor of a British colony : he is the husband of a daughter 

 of a British king: and he never should have said, substantially, that 

 an American fisherman, when found in a British colonial harbor bar- 

 gaining with a subject of her Majesty for a boat-load of fuel, or craving 

 leave to fill his water-cask at a well, or presuming to dip a few gallons 

 from a running brook, would be adjudged a lawful prize, unless able 

 to prove to her Majesty's judges of vice-admiralty that the "usual 

 stock of those articles for the voyage" had been "exhausted or 

 destroyed." 



The sixth query was, however, necessary to complete the series, and 

 illustrate the spirit of the whole. The seventh and last answer requires 

 no comment, as it merely announces that 



' ' The rights of fishery ceded to the citizens of the United States, and 

 those reserved for the exclusive enjoyment of British subjects, depend 

 altogether upon the convention of 1818, the only existing treaty on 

 this subject between the two countries ; and the material points arising 

 thereon have been specifically answered in our replies to the preceding 

 queries." 



That this opinion is not conclusive against us, and that, indeed, it 

 has no binding force whatever, hardly need be said; especially since 

 there is probable cause to believe that it was paid for in the common 

 course of professional duty. But whether the Queen's advocate and 

 her Majesty's attorney general did or did not appear hi the "case" 

 submitted to them as the counsel of Nova Scotia, is a matter of no 

 moment to us. The judgment which they have rendered, and the 

 examination of which is now concluded, deserves no respect either for 

 its law, its common sense, its humanity, or its justice. Its only claim 

 to the notice bestowed upon it consists hi the fact that it is relied on to 

 prove that we are in the wrong and England in the right, in the contro- 

 versy which has arisen as to the intent and meaning of the convention 

 of 1818. 



We are now ready to inquire what, up to 1841, was the British con- 

 struction? First, however, let us glance at the British pretension 

 prior to the concluding of the convention. In 1817, in the orders of 

 Admiral Milne to Captain Chambers, under which several American 

 vessels were seized, it is said: "On meeting with any foreign vessel 

 fishing or at anchor in any of the harbors or creeks in his Majesty's 

 North American provinces, or within our maritime jurisdiction, you 

 will seize," &c. Here is the extent of the British claim. Captain 

 Chambers, hi reporting his doings to his commander-in-chief , remarked 

 that he ' ' did not receive any intelligence of foreign vessels being within 

 our jurisdiction until the 3d instant," (June 3, 1817,) when he was 

 informed "that they constantly resorted to the creeks on this coast in 

 order to catch their bait, clean their fish, wood, water, &c." The 

 harbors of Cape Negro and of the Ragged Island, he said further, were 

 visited by such vessels; and in these harbors and for resorting to these 

 harbors he captured eleven American fishermen. 



<*When Lord Falkland solicited Lord John Russell to submit his queries, he said: "I 

 am authorized by the House of Assembly here to defray any expense that may be 

 incurred in obtaining such opinion," &c. 



