QUESTION FIVE. 161 



The fact that American fishermen do frequently fish in prohibited 

 waters will not now admit of a doubt ; but it is equally certain, that 

 under the present restrictive system of this Province, many of the 

 innocent are frequently made to suffer, and are left without redress. 

 On looking at the nature of the law and regulations under which 

 seizures are made the inducements to excite the cupidity of the 

 seizors, and their almost entire irresponsibility, leave no room for 

 astonishment at the above circumstances; but although Nova Scotia 

 may by enactments shelter its officers from consequences, it cannot 

 absolve its government from liability for injuries committed under 

 cover of its authority. 



The great evil arising out of almost indiscriminate seizure of 

 American fishing craft on the coasts of the provinces, would probably 

 be best checked by demand on the British Government for ample re- 

 muneration to all parties sustaining injury through the improper 

 interference of the provincial authorities. 



The British Case refers to an instruction of 6th October, 1838, 

 from Lord Palmerston to Mr. Fox, British minister at Washington, 

 founded upon, "An address of the legislative council and house of 

 assembly of Nova Scotia." 6 The instruction is again referred to in 

 the British Counter Case. 6 It should, however, not escape atten- 

 tion that there is no claim, either in the Case or Counter Case, that 

 any communication in the terms of the instruction was made to 

 the Government of the United States. 



There was no communication with the United States on the subject 

 of the instruction, which was either not forwarded, or recalled ; and 

 accordingly there is no evidence in the British Case or Counter Case 

 of any report from Mr. Fox of any communication with the Govern- 

 ment of the United States. 



In any event this instruction to Mr. Fox to open negotiations was 

 based upon an address of the Nova Scotia Assembly, and does not 

 alter the fact that the theory originated with Nova Scotia. 



The Department of State did not take up the question with the 

 British Government until 1841, and the notes exchanged establish 

 conclusively that there had been no previous discussion of the subject 

 of the new interpretation of the treaty. 



Mr. Forsyth, then Secretary of State, on 20th February, 1841, ad- 

 dressed a note to Mr. Stevenson, minister for the United States in 

 Great Britain, instructing him to: 



Immediately address a representation of the whole subject to Her 

 Majesty's Government; earnestly remonstrate against the illegal 



B TJ. S. Case, Appendix, 458. c British Counter Case, 49. 



* British Case, Appendix, 117. 



