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Les diagrammes suivants illustrent la mithode. irrata to pelure, n d n 32X 1 2 3 1 2 3 4 5 6 IT fff.fy<^.% - >"5 1 1 ^^^ - 1 ^^^i^^eI^^^^ r* B as aswgjrai-^^fe-..,. I ■ ^H iJ&i|t?WSf»*'«*^ THE FISHERY QUESTION; — Ott AMERICAN RIGHTS — IN — CANADIAN WATERS: BY — WILLIAM HASTINGS KERR, ADVOCATE. '^ »i MONTRE AL : PRINTED r,Y DANIEL ROSE, 431 NOTRE DAME STRBET. 1868. , > It w pit. THR FISHERY QUESTION. Previous to the American Rcvclution, the inhabitants of the British Colonies in North America exercised the right of fishing in all the bays, harbors, creeks and rivers of the present Provinces of Quebec, Ontario, New Branswick, Nov* Scotia, Prince Edward Island and Newfoundland. The treaty of 1783, by which the independence of the United States was recognized, provided, amongst other things, that American subjects should have the right of fishing on the Banks of Newfound- land, along such coasts of the same Island as were used by British Senmen, in the Gulf of St. Lawrence, and on the coasts, bays, and ereeks of all other British dominions in North America ; as well, as the right of drying and curing fish in any of tiie uusettied bays, harbors, and creeks of Nova Scotia, the Magdalen Islands and Lab- rador, so long as tliey should continue unsettled ; but not th« ricrfat of drying and curing on the Island of Newlouiidlaud. (I) ^ After the War of 1812, the treaty of Ghent containing no provi- sions respecting the fisheries, the British Government contended that the treaty of 1783, by which alone the right of inshore fishing on the coasts of the British North American Provinces had been granted, had by the war of 1812 been absolutely annulled, and that conse- quently such right of inshore fishing no longer existed. On the part of the United States Government, it was pretended that the rights granted by that treaty were in theif nature perpetual, and consequent- ly were not affected by the breaking out of the war. In 1818 a compromise was efiected by convention, and it was thereby agreed between the contracting parties " that the inhabitants of the said United States shall have, forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every (1) Vide Appendix No. 1, kind on that part of the southero coast of Newfoundland which ex- tends from Cape Ray to the Raniean Ifllands on the Western and Northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands ; on the shores of the Magdalen Islands ; and also on the coasts, bays, harbors, and creeks from Mount Joly on the southern coast of Labrador to and through the Straits of Belleisla, and thence northwardly indefinitely along the coast ; without preju- dice, however, to any of the ozclusive rights of the Hudson Bay Company : and that the American fishermen sliall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbor*, and creeks of the southern part of the coast of Newfoundland bore above described, and of the coast of Labrador ; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, with- oi^t previous agreement for such purpose with the inhabitants, pro- prietors, or possessors of the ground. And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry or cure fish on or within three marine milps of any of the coasts, bays, creeks or harbors of His Britannia Majesty's dominions in America, not included within the above men- tioned limits. Provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtain- ing wa'.sr, and for no other purpose whatsoever. But they shall be under such restrictions as may be necessary to prevent their taking, drying or curing fish therein, or in any other manner whatever abus- ing the privileges hereby reserved to them. "(2) Discussions as to the interpretation of the Convention were entered into as early as 1823 between the British and American Governments, the former claiming in favor of its subjects the exclusive right of fish- ing not only in the bays on the coasts of Nova Scotia and New Bruns- wick, and that portion of Canada to the south of the River an4 Gulf of St. Lawrence, and to the westward of Mount Joly on the north, but also within three mil6s of lines drawn from headland to headlan^^ of all such bays> including specially those of Chaleur and Fundy. The latter Government insisting that in those bays its fishermen had a right to fish at any distance over three miles from the land. For- (2). Appendix No. 2. tunately tho Rcpiprocity Treaty, concluded in 1854, adjusted the dif- fioulties which had arisen between the two Government? on the Fishery qucbtiou. Hy its first urticio it was n<;reed, " that in addition to the liberty secured to the United States fishermen by the above named convention of 181H, of taking curing and drying fish on etrtain coasts of Briti'ih North American Colonies, therein defined, the in- habitunte uf the United States shall have in common with tiie sub- jects of Her Britannic JMujcsty, the liberty to take fish of every kind, except slif'll fish, on the bou coasts and shores of those Colonies, and in the bays, harbors, and cricks of Canada, New Brunswick, Nova Scotia. Prince Kdward Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission t(» land upon the coasts and shores of these Coloniea and the islands thereof, and .dso upon the Magdalen Islands, for the purpose of drying th'iir nets and curing their fish " It Was further provided by one of its articles, that the treaty should reoy'ain in force ton years from the date of its coming into operation, and' further, until the expirition of twelve months after either of the high contracting parties .shouM give notice to the other of its wish to terminate the same. (3) The notice so required was given by the United States Government and the Reciprocity Treaty terminated on the 17th March, IStiC. So many different o[)inions Iiave been expressed as to the rights of American >ubject8 to fish within three miles of the coasts of the fJritish North American Colonies, that it becomes necessary in the first instance to inquire whether those rights are given by treaty, or whether they spring from the principles of International Law alone. The dominion over certain portions of the open ssa has at different periods been claimed by several of the nations of the world. Spain, Portugal, Holland and England have in turn, since the discovery of America, endeavored to arrogate to themselves sovereign power over portions of the sea, but nowadays it seems to be almost universally admitted that the maritime territory of a State extends solely to the distance of three marine miles seawards from its coa'its. (4) Some (3) Appendix No. 3. (4) 1. Hautefeuille tit. 1, c. 3, § 1, p. 92. Laurence's Wheaton, pt. 2. c. 4, §6. Martens Precis 6, 4, c. 4, § 4 and 10, (three leagues according to- him.) Heffter § T5. 1 Twiss § 172. 1 Azuni pt. 1, c. 3, § 15. Kluber § 129. Vattel § 289. 1 Phil. § 19. 6 1 I: UV tlifficulty, h(»wt'vei', .Htill exi-sts od the subject, owing to the different moJes by whidi Stiit;» establish the line of their sea coasts. It is admitted by r/il that the actual line of thef-hore, with its 'ndentations, bays, and proiiioiitorie;*, curiuot be fbllowerl without producing the jrro»test ei»iit*iisiuii and doubt as to the limits of the maritime territory of eaeh Stiite. and conseciueiitly straight lines running from headland to headland of b.iys, not exceeding six miles in width, are taken as the actu:il line of (^oast fioin which the three marine miles of murine territory of the State to which the lutadlands belong are to be measured. (5) If a bay exceed six miles at its entrance, with islets belonging to the >tate thiit owns the shore of the bay, either outside or inside, at a dist;uico of six marine miles or loss from the headlands and ffom each other, the bay is the property of tlie State to which the headlands and the islets belong, and the boundary landwards of its maritime territory, is the line drawn from headland to headland, resting oti the different islt^ts, which give the greatest distance sea- wards, within six miles of each other, or of one of the headlands, the said line lying perfectly straight between each pair of its resting places, and beii.g also straight between each headland and its nc irest resting place. (C) Thus an island or islet lying off the coast of a State at a distmce of six miles or less, is considered as part of the land, territory of that State, and if another island lies at a distance of six iniles or less from *he first, seaward,, or in the entrance of a larj-e bay, such second island also forms part of the land territory of thit State, and such is the rule, no matter what may be the number of links in the chain of Islands, so long as each island lies within six miles of the coast, or of the neighboring islands in the chain. The exclusive right of fishing within maritime territory belongs to the State, No person has any right, according to the principles of 'International L:tw, to fish within the maritime territory af any coua- try or State, but that of which he is a subject. (7) Sucli right to (5) 1 Hautefeuille supra. 1 Ortolan 158. I Azuni Part I, c. 2, § 11. Laurence's Wheatoa supra. Vattel § 291. 1 I'iiiilimoro i" 19». Abdy's Kent, p. llfi. (6) The Anna, j Hob. 385. 1 Ortolan Dip. do la Mev. p. 145. (7) 1 Ortolan b. 2, c. 3, p. 161. 1 Cu.ssy b. 1, t. 2, § 52, p. 129. 1 Raynuval Institutions 1, 2, c. x. § 12. 1 Caiichy. p. 39. 1 Philimore 5 188. Law- rence's Wheaton pt. 2, c. 1 ^^ 8. Petrusheveoz, art. G. to of lua- to fieh within three miles then oi' the coast of one State by th«' subjectb of another, nuiHi bo founded upon the proviHious of iome treaty be- tween suoh States in force at the time of sucli fishin could make such a public exhibition of his ignorance of the elements of International Law as is apparent to every one in the foregoing extract from Mr. Rayu nd's speech. The first blunder apparent is, that he wishes to faM«n upon the British Government the reproach of pretending that the Treaty of 1783 was annulled by that of 1814. Such an untenable pretension was never in fact advanced by that Government, for the Law Officers of the Crown always enunciated the opinion, that the Treaty of 1783 had been annulled by the breaking out of the War of 1812, and that opinion was based upon reoognizcd principles of International Law, viz,, that, all treaties, (save and except, pe;haps, tijose made to gorern their conduct during war, or expressly made perpetual), concluded between two Stat.j.s, expire on the breaking out of hostilities betweea them. (8) This principle, as applicable to the Treaty of 1783, is exprepsly recognized by a recent American a \thority. (9> Mr. Raymond then proceeds to argue, that if the Treaty of 1814 had the effect of annulling that of 1783, the Convention ot 1818 was annulled by the Treaty of 1854". The error committed by hini in the first instance of confounding th3 effect of th« War of 1812 with that of the Treaty of 1814, here leads him into the greater absurdity of stating that me Treaty of 1854, by which Great Britain confeired on American subjacts great privileges in addition to those enjoyed by them under the provisions of the Convention of i818, had the effect of annulling that Convention, and then he caps the climax by flaying that by the expiration of the Treaty of 1854. the Americans are thrown back upon that cf 1783, if not annulled by that of 1818, and if annulled, upon the rights they enjoyed previous to 1783. ^Now it must be remarked, that in the Reciprocity Treaty, great care was taken not to interfere with the provisions of the Convention of 1815, 80 far as the rights of the Americans were concerned, the only portion of the Convention which was temporarily suspended, was that in which they renounced forever the right of inshore fishing off certain portions of the coast of the British North American Colonies. The Convention itself was in its nature perpetual. It set at rest forever, the rights of the two contracting States. The Reciprocity Treaty merely gave the Americans during its continuance the privilege of fishing where, by the Convention of 1818, they hrd expressly forever renounced the right to fish. Such privilege or per.uission, wats bhsed upon such provision in the treaty ; it lasted so long as that trisaty lasted, and no longer, and when the treaty expired, the privileg be- came extinct, and the rights of the parties are those admitted' and granted by the Convention of 1818. It is unvjcessary to enter into the question of the rights of the Americans to fish withiu the litnlts (8) Heflfter § t, . Phil. § 532 to 536. (S) Woolsey § 56. L's Wlieaton pt. 3, c. 2, § 9. Abdy's Kent, p. 420» ^ d and into of the niariiltne t-h and American Governmcjiis. Another question which has been frequently raised in connection with the fisheries, is the right of Great Britain to close the Gut of Ganso against American' vessels. , The Gut of Canso is " a strait in British North America, dividing Cape Breton from Nova Scotia and forming a secure and much fre- quented passage from the Atlantic into the Gulf of St. Lawrence ; it ^is about twenty-one miles long and varying from one mile to one mile and a half broad." (18) ' Taking it for granted that it forms a part of the maritime territory of Canada, still being a means of communication formed by nature between the Atlantic Ocean aud the Gulf r" St. Lawrence, both, portions of the common property of the nations of the world, it follows as a consequence, that the right of peaceable passage exists in favor of vessels of every nationality. The right being one baped on the principles of International Law and exercised independently of Grea*i Britain, that power cannot prevent the passage of United States vessels throagh that Strait (19; ' Writers on International Law are divided in opinion upon the sub- ject, but the greater number espouse the side of the question opposed to tlie pretensions of Great Britain. Moreover, the general principles of law, and the current of modern opinion as expressed in Treaties, ck'arly indicate the fallacy of the idea that the right of peaceable passage does not exist in favor of foreign vessels through the Gut of Canso. .(18) Imperial Gazetteer. (19) Abdy's Kent, p. 116. Laurence's Wheaton, pt. 2, c. 4 § 9. 1 Haute- feuillp, pp 97 k 99. 1 Phillimore § 178. 1 Cauchy, p. 42. 1 Cussy, b. I, tit. 2, § 41. 1 Azuni, pt. 1, c. 3, art. 2 § 1. 1 Ortolan, b. a, c. 8, p. 146. Vattel, b. 1, c. 23, § 292. Rayneval b. 2, c. 9, § 1. HeflFter § 33, 76. Petrua- chevecz, art. 9. Contra— 1 Twiss, ? 174. Kluber, § 130. Martens Pr6cis, pp. 171-168. APPENDIX. "•^^•■O If No. 1. The definitive Treatj of Peace and Friendship between his IJrit- anuio Majesty, and the United States of America; signed at Paris, the 3d of September, 1783. Art. III. — It is agreed, that the people of the United States shall continue to enjoy, unmolested, the right to take fish of every kind od the Grand Bank> and on all tlie other hanks of Newfoundland : also in the Gulph of St. J/awrencc, and at all other places in the sea where the inhabitants of both countries used at any time heretofore • to fish. And also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of ■ Newfoundland as British fishermen shall use, (but not to dry or cure the same on that island,) and also on the coasts, bays, and creeks of all other of his Britannick Majesty's dominions in America; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled ; but so soou as the same, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settle- ment without a previous agreement for that purpose with the inhabit' ants, proprietors, or possessors of the ground. No. 2. . Convention between Great Britain and the United States, signed at London, October 20, 1818. Aet. I. — Whereas diflferences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof, to take, dry, and cure fish, on certain coasts, bays, harbours, and creeks, of H ,8 Britannic Majesty's Dominions in America, it is agreed between f'ae high contracting parties, that the inhabitants of the said Uaited States, shall have, forever, in common with the subjects of His Brit- annie Majesty, the liberty to take fish of every kind, on tha* part of 15 the southern coast of Newfoundland, which extends from Cape Ray to the Ramean Islands, on the western and northern coast of New- foundland, from the said Cape Kay to the Quirpon Islands, on the shores of ihe Magdalen Islands, and also on the coasts, bays, har- bours and creeks, from Mount Joly, on the southern shore of Labra- dor, to and through the Straights of Belloisle, and thence northwardly indefinitfeiy along the coast, without prejudice, however, to any of the exclusive rights of the Hudson's Bay Company : and that the Am- erican fishermen shall also have liberty, for ever, to dry and cure fish in any of the unsettled bays, harbours, -and creeks, of ike southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador; but so soon as the saaicr or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry oc cure fish at such portion so settled, without previous atan«e from the shore ; with pc'rinission to land upon the coasts and shores of those Colonies and the i»lands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish : provided that in 80 doing they do not inlcfere with tlie rights of private properly, or witli Uritish fishermen in the peaceable u.^e of any part of the said Coast in their oceupancy for the same purpose. It is understood that the above luentioned liberty applies solely to the sea fishery, and that the s;dmon and shad fisheries, and all fisher, ies in rivers, aad the mouths of rivers, are hereby reserved exclusively ' for British fishernKin. — flfrtsfrt Trenties, Vol. IX. 'i No. 4. The inshore fisheries of a, country are the heritage of the inhabit- Huta of it8 coasts, sufficient in nearly every instance to provide them with all the necessaries of life ; but like all other supplies vouchsafed * by nature to man, if a system of over cropping be persevered in, the water, like the land, becomes barren. Mackerel have been driven off" the coasts of the United States by over- fishing, and their vessels are now forced to seek in Canadian waters the fish which their own maritime territory no longer affords . them. For many years past, from four to five hundred American vessels per season fish in the Gulf of St. Lawrence and the Bay of Fundy, Their take is equal to three-fourths of the whole Cod and Mackerel fishery of the United States, and is valued at $12,000,000. It must be remembered, moreover, that they fish almost exclusively withiu three miles of the Canadian coast. (See Year Book of Canaiht, 1808, p. 90. Letter from Secret iry of Treasury in answer to Resolution of House of llepresentutives of- ^ 7th February, 1868. Ex. Doc. 24-0, pp. 12 and 13.) The United States TarilF imposes a duty of #2.0 ) a barrel upon t foreign caught fish. Last, ye.ir the license fee levied by our Govern- ment upon United State.s vessels fishing in Canadian wuters w is fifty ; cents a ton. This year the f(!0 is to be $2.00 per ton. Ijist year ' the tonnage of such ves-sels fishing in Canadian waters was e.stiiuat9d • 17 at 19,000 tons; supposing that the same vessels this year fish in our waters, we shall for the paltry sum of $38,000 allow them to take $ 12,000,000 worth of our property. In other words, we levy on our fish, caught and exported by American vessels, a duty of $1.25 on every £100 worth. Can it be wondered at that our fishermen starve. Shut out from the markets of the United Stiites, overwhelmed by the numbers and wealth of the foreigners, who monopolize their fishing grounds, seeing year by year fish becoming scarcer, and they themselves becoming poorer and poorer, is it too much to say that ere long their patience will be exhausted, and that they will ask for that protection elsewhere which here alas has never been extended to them. Verily the people of the New Englan.. Stat are justified in laugh- ing at our folly. For a mess of pottage we consent to sell our birth- right, and allow our neighbors to reap the harvest placed by Provi- dence ripe for the sickle at our doors.