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This item is filmed at the reduction ratio checked below/ Ca document est film* au taux de reduction indiquA ci-dessoua. 10X 14X 18X 22X 26X 30X tax 16X J\ 7DX 1 24X 28X 32X The copy filmed h«r« has b««n raproduead thanks to tha ganarosity of: Memorial Uiiivereity of St .John's L'axampiaira filmA fut raproduit grica i !i gAnAroait* da: Mcnwrial Uiiivarsity of St. John's Tha imagaa appaaririg hara ara tha baat quality poaaibia considanng tha condition and lagibility of tha original copy and in icaaping with tha filming contract spacificationa. Laa imagaa suivantaa ont AtA raproduitaa avac la plua grand toin, eompta tonu da la condition at da ia nattatA da l'axampiaira film*, at an eonformit* avac laa conditiona du con;^V^^^^^O THE 13J546 f/FW UNITED STATES AND THE NORTHEASTERN FISHERIES A HISTORY OF THE FISHERY QUESTION :' * Vl ■ V BY CHARLES B. ELLIOTT. LL B ( 4:J MIMNEAPOMS THE UNIVERSITY OK MIVNESOTA 1887 THK UNITED STATES AND THE NORTHEASTERN FISHERIES ■ ,ui ' \ >-< cl. * COPYKIOHT BY CHARLES B. ELLIOTT 1987 W. T. COLt t CO. MIMNBArOLtS "The public prim, hold forth the taporunceol, he fisheries The ' * , M- Marbois to Count de Vergennes, March 13, i78i. ^ Uniln/' ^'''''"" "^ '"'" ^»'««J^«Wi.-the two great Objects of the Gouvemeur Morris in ConsUtutional Convention of 1887. Thia paper was prepared and presented to the Faculty cf the Fniversity of Minnesota as part of the work of a candidate for ■>e Jegree of Doctor of Philosophy. I am indebted to the !r.te Prof. Tohn Norton Pomeroj for the greater part of the translations lom French writers on inter- lational law, and to the officials of the Department of State at krVashington for their coui^esy in allowing me access to the library and archives of that Department. Nov. 31, 1887. i [ CONTENTS ; Introduction . t " Part I-Historical AcQorsrTiov of thk Xortheasthrn F- The Fxshrrx„s and the R.v ^-^"««»« . th.tr.atv OK ;;'"^--— . - - Thr Fxshrrxks at thr closr ok'thk r, " " D-pkrr.. Constructions o. t. Tr/a ""-^ Th. Nhootxations at Ghknt ' ' ^^ ^783 The Treaty OF 1818 . * THERECZPHOCXTVTREATV0FX854 ' " * T.rE Treat V OF WASHrNOTON - ' ' Tkmporar, DxPx^OMATxc Arraoe..;, : • ■ Phhsent State OF THE Question . Pakt II_Thk Treatv of ,S^8 In Gbnbral Rut-M 01- COVSTHUCTION . ' ' ^ ' ' InD„pS«_ThcThr„Mil.Lte . In Temtonal Waters To Dry uid Cure Fi.h To Obuin Shd..r, Wood .„d W.t'r ." To- Procure B.i,, p„ ,„ co.c.„:i •""'"■"'""'-<"* tk..„ Affknoix *5 26 40^ > 44 50 57 _^^ 89 90 103 '05 106 116 «»7 117 118 119 133 137 »3o '35 THE UNITED STATED Axrr.^^ ELATES AND THE NORTH- EASTERN FISHERIES. ' INTRODUCTION. •horc ol the British North Am,, »"*^"""°"*=«<«m - .disturbing element oftterTaZl? t™""^" "" "PP^-e" «*. few „„,et,Ied question, ZZ'^ -^T"^' " » <>»« of o^U.. United State, „hich Z at .1,:' \"" '°"'«" "M-™ between the two great E„g,i,^ s"^' '"'":' •*"■' '"" 'o war From ,t, nature it i, peculiarl.^.K * "f °"' °' "Xworld. »«ling between the p^!^ h' , '" •" "" ^"« o/ in. S'««thr„.,it,ar™l~t;^,-"""'ed. The Uni;^ cer,a,n peculiar territoriafd'h,, "„ ,t T" """ "»" "old, ^on. Her subject,, while pu™ „r.herr " °'' ""'•«" - brought into direct perso. ,Uo„«c^ L,,h r"-^"''^"' '" """ foreign nation eng^ed ,n ^h^ "" '"'>'«'' of such i««'o„, of wh,, see*n,^o thl tr e™' ''""'""°"' """ """-I ^ '"■on. ConflicUng interes ,„„';:?:,':;"'""■« -d co^pe'! to lead to collision, which ren,.,' '""''"^" "■« li»ble »Pec.ve nation, difficult E I „"'^°""''""' "«"-" »>« re «" of iu fisheries. I. ha. l^^n ,hr T^"'"' "■' '""Po"- ~"n.ry to g,v. ,h„ indu„r7 ^"cnS"' "' ""^ ""ri-i-e — • «- use wards of nations. T ■ •~*uaui nations T^ »u t grnntcd certain e«fr« , *««hemhavebe «« ... '^ " extraordinarv Driv.U.,- i »-'«ori. of War ryprivilege, and exemptions f ishei ■en universally in times lO THE UNITED STATES AXD The ♦isheries are the nurseries of seamen, "the great foun- tains of commercial prosperity and naval power," from which are drawn skilled and hardy sailors to man ships of war in time / of need. They nurture and train a reserve force f o r the navies of the ^ world. Hence they have always been fostered and encouraged. From an economic point of view the fisheries are of equal importance. Countless thousands receive from them their chief article of food. " The commercial product^ obtained from the sea are more numerous and important than would be generally supposed by those who have not looked closely into the matter. To a great part of the civilized world the taking of the cod, the herring, the salmon, the mackerel, the sardine, the seal, and other fishes, is of great value and gives employment to hundreds of thousands of persons. The oil obtained from the seal, cod, shark, &c., is used for lamps, medicine and in industry. Many" parts of fish are employed in the arts and manufactures: as, the scales of the bleak for n^aking false pearls, and those of other fish for making ornaments; the skins of the seals and por- poises f. tanning purposes. Isinglass is obtained from the air ' or swimmiMg bladders of many. Fish roes are not only used as fish delicacies, but also for bait in some fishing grounds, and ex- cellent guano is made from the offal and the bones of fish. The sea is more abundantly stocked with living creatures than the land. In all parts of the world a rocKy and partially protected shore perhaps supports in a given space a greater number of in- dividual animals than any other station. The sea is filled with animals of several kinds, and each layer of water in depth seems to have its own varieties, thus resem bling the changes which take place according to elevation in the organized portions of the land." • The supreme importance of these northeastern fisheries to thousands of citizens of the United States who live along the eastern shores can hardly be appreciated by their fellow citizens living inland. Generation after generation of these people hp.ve followed the same hardy occupation. Year after y.ir from the time when their ancestors first visited the bleak coasts " — * •■* -* '••'- "^■»' "/ » ■ A^. oiinmons, quoted In Joncaa on Fisheries, in "Canadian Economics," p. 73. 1 THE NOHTH£ASTKRN FISHERIES. u they have made the same annual voyage. Millions of dollars are invented in the business. The right to particip«te in these fisheries has always been claimed by them and its justness can- *)t be controverted. The absolute right of a Gloucester fisher- man to take fish off the Canadian coast, subject to the treaty restrictions made by his government, rests on the same title as American right to the soil of Bunker Hill. The "fishery question" was intimately connected with the eajfly history ^f the United States. The men who signed the Treaty of Paris, in 1783, thought that they had forever placed beyond question the rights and liberties of citizens of the new nation in the fisheries. Every generation of American statesmen can bear testimony to their error. In one form or another the fishery dispute has always been before the public. It is a nut which our Sutc Depart- ment has been attempting to crack for more than a hundred years, and the only result is the hardening of the shell. It is true that the relative importance of the fisheries has de- creased amid the diverse and .multiform pursuits of modem commercial and industrial life, until, as compared with the whole, they are of small importance. But it is equally true that the importance of an international question is not governed solely by the number of dollars involved. The difficulty is not about "a few fish" but about the true construction ot a treaty, and the duty of one civilized nation towards the citizens ol another. PART I HISTORICAL !( / THE ACQUISITION OF THE NORTHEASTERN FISHERIES. In order to understand the fishery question it is necessary to trace its history and to consider the important position it has oc- 'cupiedin the history of the nation and of the States and Provinces situated on the Atlantic coast. Before the division of the Bndsh Empire by the successful revolt of the North American colonies, the valuable fisheries along the eastern and northeastern coasts of the continent were the property of the Empire, open to the free and common use of all its citizens. The history of the northeistem fisheries dates back to a time soon after the discovery of America. They were known to the Normans and Biscayans as early as the year 1504, and, for almost a century before any attempt was made at colonization, these adventurous toilers of the sea pursued their perilous calling on the shores of the island of Newfoundland and the adjacent mainland. ' In 1517 fifty ships were engaged in the Newfoundland fish- eries, and in 1577 the French fishermen employed one hundred .fifty vessels.' > The first tc use these fisheries were the Basques (the people of Nor- mandy and Brit^iny). According to P^re Fournier the Basques wee busj drawing cod from the water and had given the name Barsaiaos, or Codlands, to Newfoundland, Nova Scotia, and Cape Breton. The name Port-aux-Basques, a fine harbor near Cape Ray, is a reminder of the Basque fishermen.— Hatton & Harvey's " Newfoundland." * Decay of EnsHsh Rsherv \ntf of England, vrV 8, pp. 444.5. Early Newfoundland fisheries. Palfrey's History of Ne . England vcl i, pp. 65^. Early New En.jland fisheries, Palfrey's History of New England, vol. 3, p. 54. i6 THE UNITED STATES AND The value of the industry w as fully appreciated even at that early day. For almost two centuries the great rival powers of En^ and and France struggled for their "mastery and monop- oly, until at last England triumphed and France lost forever her grasp on the New World she had done so much to explore, re- tammgonly the consoling bei:.f that she had assisted in buildine up a power m the west which would one day revolt and riv^ her conrjuerer. ^ »« nritf ' rr^°" ""^ '^'" ^"'""^^^ ^^^°& *^^"*°0^ ^^ com- prised m what .was once the romantic land of Acadia. Its sovereignty passed from France to England and from England France as the tide of war ebbed and flowed in the new world and m the old Its exact boundaries were never strictly de- ZZ"t K •''"^ ""' ^'^ '^''''y °' St. Germain in 1683, it embraced wha is now Nova Scotia, New Brunswick, and tha part of Maine lying between the St. Croix and the Kennebec th^/'^J^ 'IV^ Utrecht, in 1713, England claimed for Acadia ^at part of America bounded on the south by the Atlantic l^n^r X ""T' °" '^' "^''^^ ^y ^« S^- Lawrence river, and on the east by the Gulf of St. Lawrence. Within this InT^n ' T "''"'' ^^"°"«Iy desiginatea by French and Indian names. By the English a large part of the territory was called Nova Scotia.' « lemtory 1 do not propose here to follow the eventful history of Aca. thenartr '^Jr°"'^°" ^^ '^"^^"^ ^^^^^ - '"-^-ting Z cnl r^'T"" ^'^'"" ^^^^ P'^'y^^ '^ th^ history of tiie continent Neither England or France cared much for a and of so little value. While the colonists struggled Ind fought for It as a precious possession, their sovereign, whether P w^torr'-fiT ^""^-^^-^ *--- - as"; valut'el Chries I ?o ^?"' " ^'^ ^^"^ ^^"^^ °^ European politics. c s^S^ I H .' """''^ ^° ^'^''^ ^"^ Cromwell held the !!!!;!i :;^ and erected Nova Sc otia into an English colony ' Wingor'« Ka,..«n 4«a. € and Criticai iiUiurjr of America, vol. v, pp. 405- THE NORTHEASTERN- FISHERIES. 17 Upon the restoration of the Stuarts it became, by the treaty of Breda, Frenrh Territory. By the Treaty of London, in 1686, the two powers were confirmed in their respective possessions. But the French took no steps toward establishing their rule on a firm basis, and, during the war which followed the accession of William and Mary, the Acadian land was again conquered by an expedition from Boston under the command of Sir Wil- liam Phips. On the 2Sth day of April, 1690, Phips sailed from Boston with a fleet consisting of one frigate, two sloops and four smaller vessels, and, after reducing Port Royal, St. Johns, and other settlements, returned to New England leaving an English governor in command. This expedition was a triumph for the men of New England, ind, when Phips became the first royal governor of Massachusetts, Acadia formed a portion of her domain. But by the Treaty of Ryswick in 1697, the indignant colonists ?aw the conquered territory again relin- quished to France. Goverror Villabon soon after notified the governor of Massachusetts that he had royal instructions from France to seize every English fisherman found east of the Kennebec river. The beginning of the reign of Queen Anne found England and France again engaged in war and among the causes was the claim of France to the whole of the fishing grounds. New England sent another fleet and in 17 10 Nova Scotia was once more an English colony. Three years later by the Treaty of Utrecht, England obtained a monopoly of the northeastern ^fisheries. As showing the importance attached to the fisheries at this time, it is noteworthy that among the charges against the Earl of Oxford, indicted for high treason, was one that he had in defiance of an Act of Parliament advised the Sovereign that " the subjects of France should have the liberty of fishing and drying fish m Newfoundland." " But such has been the advance of civilization and of the doctrine of human broth.prhriri;? that sr-. ^.-t -.-u:-i- flagrant crime in his own age has become one honorable to his memory. The great principle he thus maintained in dis- g ice, that the seas of British America are not to be hei-i by British subjects as a monopo: ^ , .,nd to the exclusion of all other people, has never since been wholly disregarded bv any British i8 THE UNITED STATES AND minister, and we may hope will eVer now appear in British di- plomacy to mark the progress of liberal principles and 'man's humanity to man.'" ' But the loss of Nova Scotia did not destroy the French fish- ery interests. They fortified Cape Breton, and in 1721 their fleet of fishing vessels numbered four hundred. Behind the fortress of Louisbourg they determined to make a final stand. That marvelo',.s fortification, baptized in the name of the sover- eign, had required twenty-five years to build and thirty millions of livres had been spent upon it. From its massive walls two hundred cannon frowned upon the wilderness. " So great was its strength that it was called the Dunkirk of America. It had nunneries and palaces, terraces and gardens. That such a city rose upon a low, desolate island in the n.fancy of American coloiiization appears incredible; explanation is alone found in the fishing enthusiasm of the period." In 1 745 * fl^^t sailed from Boston for the conquest of Louisbourg. ItwascommandedbyPepperrell, the son of a Mount Desert fisher- man, and three-fourths of the troops were Massachusetts men. The colonial army landed May 30, 1745, and after an investment of forty-nine days, during which nine thousand cannon balls and six hundred bombs were thrown into the besieged city, the French commander surrendered.' The importance attached to this evi it at the time is now hard to realize. Sn»ollett calls the conquestof Louisbourg" the most important achievment of the war of 1744." In 1775 the victory was pronounced in the House of Commons "an ever- lasting memorial to the zeal, courage and patriotism of the troops of New England." It was said at the time. that New England gave ft- e to Furofe by raising an army and transporting to Acadi i four thousand men, whose success proved an equivalent for all the victories of France on the continent. "I would hang any man who proposecd to exchange • Sabine's Report on American Fisheries, p. 14. * The English fleet under tlie cornmuml of Adtuiral Warren rendered but little asdidtancc other than ttu- capture ot a Frtnch frig.itc on if> -vay to relieve the garrison. Vv'olcotfd Journal, In Collection Connecticut His- torical Society, vol. I, p 165. THE NORTHEASTERN FISHERIES. »9 Louisbourg for Portsmouth," said Lord Cl.osterfield. But the interests of the colonists were again to be sacrificed to the in- terests of the sovereign, and, by the Treaty of Aix-Ia-Chapelle, in 1748, Cape Breton was restored to France.' Louisburg was rebuilt and the old dispute about boundaries was renewed. French diploir.acy was busily engaged in trying^ to repair the disasters which had befallen her arms. England attempted to detach Spain from France by promising to acknowledge her claim to participate in the fisheries.' In 1758 Louisbourg was again besieged by an army, under Lord Amherst, and again it was through the courage and energy of the men of the new world that victory attended the Brit- ish arras. Nearly one-third of the effective men of Massachusetts were engaged in this expedition, and it was at the time said in the House of Commons that of the seamen employed in the Brit- ish navy ten thousand were natives of America. Many of the Americans who were engaged in the wars of 1754 and 1756 became famous during tht struggle for Indepen- I dence. At the siege of Louisbourg were: Thornton, who signed ' the Declaration of Independence; Bradford, who commanded a continental regiment; Gridley, who laid out the works on Bunker Hill. Washington was on the frontier of Virginia. Among thos'- engaged in one or both wars were Sears, VVol- cott, Williams, and Livingston, all signers of the Declaration of I^dependence ; Montgomery, who fell under the walls of Quebec, Prescott, Gates, Mercer, Morgan, Thomas, who com- manded in Canada after the fall of Montgomery, James Clin- ton, Stark, Spence Israel and Rurus Putnam, Nixon, St. Clair, Gibson, Bull, Charles Lee, Butler, C.-mpbell, Dyer, pfterwards Chief Justice of Connecticut ; Craig,director-general of the Amer- ican hospital and a friend of Washington,Jones, the physician of Frankhn, and John Morgan, director-general and physician- general of the army. " It wa-, in Nova Scotia and Can.ida, and on the Ohio, then — at Port Royo', Causeam, Louisbourg, Que- bec, and in the wilds of Virginia .id in putting down French ' CorreRpondence of Duke of Hcdford. vol. v, p. 18. » Isham's The Fliher)r Question, p. jo, citiiijj Bussy's '• Private Mem- oirs to Eng. Ministry." 20 THE UNlTiD STATES AND pretensions., that our fathers acquired the skill and experience necessary for the successful assertion of their own." By the treaty of Paris, concluded February lo, 1763, Can- ada and all its dependencies were formally ceded by France to England, reserving to France the liberty of fishing and drying fish on that part of the island of Newfoundland specified in the thirteenth article of the treaty of Utrecht, which treaty, with the exception of what related to the island of Cape Breton and the other islands and coasts in the mouth of the St. Lawrence River and in the Gulf of St. Lawrence, was renewed. His Britannic Majesty consented to leave to the subjects of the Most Christian King the liberty of fishing in the Gulf of St. Lawrence, on condition that they kept three miles from the coast of the continent and of the islands belonging to Great Britain. The subjects of France were not to be permitted to Lome within fifteen lea^^ues of the coast of Cape Breton for the purpose of fishing. Great Britain ceded to France the islands of St. Pierre and Miquelon in full right, to serve as shelter for the French fishermen on condition that they be not fortified, or occupied for purposes other than the fishery. This concession was received with great displeasure in Eng- land, where it was said that "the fisheries were worth more than all Canada." Pitt, backed by the colonists and the Lon- don merchants, favored the total exclusion of the French from the fisheries; but Bedford believed that such a proposition woul'j put an end to the negotiations and cause a renewal of hostilities.' Junius, in his celebrated letter, charged his grace with bribery. "Belleisle, Goree, Guadaloupe, St. Lucia, Mar- tinique, the Fishery, .md the Hivannah are glorious monuments of your grace's talents for negotiation. My lord, we are too well ^xquainted with your pecuniary character to think it possible that so many public sacrifices should have been made without Some private compensations. Your conduct carries with it an intem/il evidence beyond all the legal pr jofs of a court of jus- tice." • Corresp. Dukr of Bedfcrd vol. v., pp. xvlil-iai. The French con- •oicd themselves with the rettectlon that they could retaliate by the exclusion of Engliiih fish from French markets. '\ TH£ NORT.'IEASTERN FISHERIES. 31 THE FISHERIES AND THE REVOLUTION, No longer disturbed by the French fishermen, the colonists of New England prosecuted the fisheries with vigor and energy, and were encouraged by laws which exempted boats and tackle XTom taxation. The trade was flourishing and profitable and the merchants were willing to take many chances. In 1764 the Massachusetts cod fisheries were valued at jCi55,ooo sterling per annum. A huge painted codfish hung in the s-^te H'^use, as a constant reminder of the "staple" of the colony. The fish were sent to France, Holland, Spain, Madeira, Btazil, Paramaribo and the southern colonies. Less than one- third were sent to England.' The poorer qualities were sent to the West Indies and exchanged for rum, bullion and com- modities which could be in turn exchanged for articles of Eng- lish manufacture. But fishing was indirectly to be again "a thing fatall to the plantation." The fish had become scarce on the immediate coasts of New England, and stations were planted by the wealthy merchants at Canso and at points on the Bay of vZhaleurs. But the industry was destined to re- ceive a fatal blow from the home government. Parliament de- cided to enforce the Navigation laws, which effectually checked the export trade. The West India products were made dutia- ble in colonial ports and the French again obtained virtual con- trol of the fisheries. Massachusetts merchants, thus deprived of their trade, becunie more and more rebellious, loaded their ves- sels with the fishing plants and sold them abroad. As far as parliamentary action could go, the fisheries were destroyed. But evasions of the law and the intercolonial trade sufficed to keep the industry alive and the fishing towns pro.sperous up to the end of the Revolution.' Stephen Higginson testified be- fore a committee of the House of Commons that if a pending bill to deprive New England of participation in the codfish- ciics siiuuiu puss, it would take ihe ir.euns ol iiveiihood ' Franklin's testimony before a Conrnittee ot the House of Commons. •Jiham's The Fishery Question, p. 34. THE UNITED STATES AND from 6200 inhabitants of Massachusetts and compel loooo ner- sons to seek employment elsewhere." So steadily were the fisheries pursued by the people of New England that fifty years after the landing 01 the Puritans, /n English writer of high authority wrote "New England is the most prejudicial plantation in this kingdom," and the reason given was because "of all the American plantations, his Majesty has none so apt for building of shipping as New England, nor any comparatively so qualified for the breeding of seamen, not only by reason of the natural industry of that people, but prin- cipally by reason of their cod and mackerel fisheries, and, in my opinion, there is nothing more prejudicial, and in prospect more dangerous, to any mother kingdom, than the increase of shipping in her colonies, plantations or provinces." The policy of the crown from the accession of the Stuarts down to the Revolution was in strict accordance with these ap- prehensions. The course of legislation was directed toward restraining and breaking down the commerce of the colonies. ^" ^733 Parliament passed an act imposing duties on rum, mo- lasses, and sugar imported into the colonies from the West India islands other than British. This act was designed to destroy the valuable colonial trade with the French, Dutch and Spanish islands, where the products of the islands were ex- changed for fish. The penalty for violation of the law was the forfeiture of the vessel. The people of the colonies in- sisted that they could not continue to prosecute the fisheres with profit unless they could sell their fish to the southern planters and import molasses for manufacture into spirits for domestic consumption and trade with the Indians. A fleet was sent to enforce the law but they found "ye fishermen to be 8tubbern» fellowes" and the New Englanders managed to con- tinue the rade to a considerable extent. In 1764 the act was renew- .and a determined effort made to collect the duties, with tl- .latural result of frequent collisions between the shipmasters ."VI the officers of custom in Boston, Salem, Gloucester, Fal- mouth (Portland), and other ports of New England. The colonists strugeled manfullv against whnt seemed a" a^^^"^-* i- ' W. Bradford, " Biographical Notices," p. 329. THE NORTHEASTERN FISHKRIF.S. 23 to ruin their business in order to appease the clamor of the planters of the British islands, and test the ability of the government to raise money in America under the "sugar and molasses acts," ' The "molasses excitement" is interesting as being one of the earliest of the irritating events w^hich led to the Revolution and as showing how early the fishery question became an important factor in American politics. Massachu- setts remons aiied earnestly against the law, and in 1764 the Council and House of Representatives m answer to the speech of the Governor, said that "our pickled fish wholly, and a great fart o/our codfish, are only fit for the West India market. The British islands cannot take off one-third of the quantity caught; the other two-thirds must be lost or sent to foreign plantations, where molasses is given in exch.inge. The du.y on this article will greatly diminish the importation hither; and being the only article allowed to be given in exchange for our fish, a less quantity of the latter will of course be exported the obvious effect of which must be a diminution of the fish trade, not only to the West Indies but to Europe, fish suitable for both these market^ being the produce of the same voy^^. If, tl.erefore, one of these markets be shut, the other cannot** supplied. The loss of one is the loss of both ; as the fishery must fail with the loss of eitl er." » That these evils were not imaginary is shown by a letter of Oliver, Secretary of Mas- sachusetts, to Jackson the colonial agent, written in June, 1765.' The state of the public mind is illustrated by the fact that it was charged and believed by the opponents of the gov- ernment that the crew of a captured fishing vessel were put to death by the captain of a British cruiser. In 1775 the final blow came. Parliament determmed to starve the colonists into submission. On the loth of February Lord North noved "that leave be given to bring in a bill * 1. e southern colon. ■ could not sympathiie with the people of New England in the contesi V vhat, in ridicule, they called " cheap sweet- ening." The " petty dealers in codfish and molasses " had to struggle on alone. » See Burke's " Observations " on a publication called " The Present SUte of the Nation" (1769). • Sabine's Report on American Fisher' ^s, p. 137. 24 THE UNITED STATES AND to restr . tiie trade and commerce of the provinces of Massachusetts Bay and New Hampshire, the colonies of Connecticut and Rhode Island and Providence planta- ion, in North America, to Great Britain, Ireland, and the British islands in the West Indies; and to prohibit such prov- inces and colonies from carrying on any fishery on the b&Jiks of Newfoundland, or other places therein to be men- tioned, under certain conditions, and for a time to be limited." Upon thia resolution there was a long and interesting debate but Lord North's motion was agreed too by a vote of 261 to 85. On the 28th of February the bill was taken up and testimony heard as to the value of the fisheries and the probable ef- fect of the bill if it should pass. The examination was con- ducted by Mr. David Barclay, the agent of the committee of North American merchants. Among the witnesses were Stephen Higginson, '' from Salem, in the Massachusetts Bay, a merchant," John Lane, a New England merchant, and Seth Jenkins, from the island of Nantucket. All agreed that the passage of the bill would work irreparable injury to the colonists. In answer to a question as tp how long the people of New England could exist without the fisheries, Jenkins replied, "■'Perhaps three month:' The consideration of the bill was again resumed on t; of March when Burke opposed it III a speech 01 great bitterness; but the House "re- solved that the bill do pass," and tuat "Mr. Cooper carry the bill to the Lords and desire tl.eir concurrence." Mr. Cooper appears to have performed his part zealously for the Lords gave the bill immediate consideration and also examined witnesses. After a long and animated debate, the bill finally passed by a decided majority. The twenty-one peers of the minority, in a state paper of great eloquence, entered a solemn protest. " We dissent, because the attempt to coerce, by famine, the whole body of the inhabitants of great and populous provinces is with- out example in the history uf this, or, perhaps, of any civilized nation, and is one of these unhappy inventions to which Parlia- ment is driven by the JifHculties which daily multiply upon us from an obstinate adherence to an unwise plan of governrrsf r.» Wt do not know exactly the extent of the combination against our commerce in New England and the other colonies; but we THE SO[lTnEAiI£RX, FISHERIES. 25 do know the extent of the punishment we inflict upon it, which is universal, and includes all the inhabitants; among these, many are admitted to be innocent, and several are alleged by ministers to be, in their sense, even meritorious. Thot govern- ment which attempts to preserve its authority by destroying the trade of its subjects, and by involving the innocent and guilty in a common ruin, if it acts from a choice of such means, con- fesses itself unworthy; if from inability to tind any other, ad- mits itself incompetent to the ends of its institution." Having destroyed the fisheries of New England, Lord North, on the nth of April moved that the House resolve itself into a committee of the whole on the 27th instant, to consider the en- couragement necessary to be given the "isheries of Great Britain and Ireland. A bill was passed with hat object in view, and although L.ord North disclaimed any resentment against ^ America, it was beyond doubt the culmination of a policy - having for i^ object the building up of the British tisneiies ' at the expense of the colonies. But the now thoroughly 1 aroused colonists, by their delegates in Congress assembled, attempted to retaliate by prohibiting the sale of supplies to British fishing vessels. Lord North evidently hoped to starve the colonists into sub- mission and it Wat feared in some quarters that such would be the effect of his policy. Silas Deane, who was then in Par>s soliciting aid from the French government, in an account of an interview with Count de Vergennes, dated July, 1776, and transmitted to the Secret Committee of Congn s, says, "He asked me many questions with respect to the colonies; but what he seemed most to want to be assured of, was their ability to subsist without their fisheries, and under the interruption of their commerce. T ■ this I replied, that the fis.heri°s were never carried on but by a part of the colonies, and by tnem not 90 much as a means of subsistence as of commerce; that the fisheries failing, those employed in them turned part to agricul- ture and a part to the army and navy." ' ' For an account o£ Lord North's cour see " Extract* (rem the letter* of George III to Lord North, selected by Lord Holland from the man- uscript* of Sir James Mackintosh," in appendii to Sparks' Life of Wash- lnf(ton, vol.6. 26 THE UNITED STATES AND I have follcwed the course of tl is legislation somewhat mi- nutely because it shows how Iarj,,e a pUicc in the Hves of the colonists the fislierles occupied, and the part they played as among the causes which led to the Revolution.* THE TREATY OF 1783. Upon the beginning of hostilities the fisheries were necessar- ily abandoned. But that the colonists fully appreciated their value and their own share in their acquisition is shown by every act, resolution and letter in which the subject is mentioned. Among the reasons assigned by the old Con- gress for the necessity of reducing Quebec and Halifax, was that "the fisheries of Newfoundland are justly considered the basis of a good marine." ^ On the 2'jih day of May, 1779, on motion of Burke, seconded by Drayton, it was resolved "That in no case, by any treaty of p;ace, the common right of fishing be given up." On the 24th of June following, on motion of Gerry, it was voted and Adams was instructed "that it is essential to the welfare of all the United States, that the inhabitants thereof, at the expiration of the war, should con- tinue to enjoy the free and undisturbed exercise of their com- mon right to fish on the banks of Newfoundland and the other fishing banks and seas of North America, preserving inviolate the treaties between France and the United States."^ On the 1st of J"'y a resolution was passed for an explana- tory article to the minister at the court of Versailles, whereby the common right to the fisheries was to be more explicitl)' guaranteed to the inhabitants of the States than it was by exist- ing treaties. On the 17th of July, in reference to the treaty with England, and again en the 29th of the same month, in a motion ijosiatt Quincy, in a speech in the Senate in 1808, enumerated the principal causes which led to a separation from Great Britain and included among them the "embarrassment of the fisheries." * Plant for reducing the Province of Canada refeired to in the In- Svruciiori o: iioiiuinuic ii. r'rankiiii, Miiii»ici 10 the Court ot France: Secret Journals of Con^^ress, vol. 2, p. 1 14. ' Secret Journals of Congress, vol. 3, p. 184. THE XOKTHKASTEKX M.-IinUIES. »7 by McKean, s: .ondecl In Huntington, it was resolved that if, after the treaty of peace, England >,hould molest the cit- izens of the United States in the exercise of tl. ir common rights in the fisheries it should be considered a sufficient cause for war and the force of the Union should be exerted to obtain redress for the parties injured,' Anticipating future trouble. Congress endeavored to secure from the French King an agreement to mai-.- common cause against England for the protection of the tisheries, and on August 14, 1779, Franklin was instructed to propose such an article.'' In October, 1781, the Massachusetts General Court passed a resolution instructing its delegates in Congress to urge the importance of the fisheries to that commonwealth, and asking that in any negotiations for peace the free and unmolested ex- ercise of the right be continued and secured to the subjects of the United States. The resolution was presented to Congress in August, 1782, and was referred to a committee, consisting of Lovell, Carroll and Madison. This committee reported on the 8th of January, 1782, emphasizing the common right to the fisheries and recommending that the King of F e be urged to use his best efforts to obtain for his allies a stipulation on the part of Great Britain not to molest them in the common use of the fisheries.* This report was referred to another committee consisting of Carroll, Randolph and Montgomery, which reported on the i6th of August that they had gathered facts and observations which they rec- ommended be referred to the secretary of foreisn affairs to be by him digested, completed and transmitted to the minister pleni- potentiary for use in the negotiation of peace. .The report was strongly in favor of the common right.* These, resolutions were violently opposed. It was declared » See Reports on Common Rights of the States in the Fisheries: Se- cret Journals of Congress, vol. 3, pp. 151, 161 ; Hamilton'* Life of Alex- ander Hamilton, vol. 3, p. ^i6. :':p:crnu::c ccrrcipoaucin-c ol the Kcvuiutiun, vol. 3, p. lOI. » Secret Journals of Congress, vol. 3, p. 15S. ♦ Facts and observations in support of the several r'aims - f the United States, not included in their ultimatum of 15th of June, 17S Secret Jour- nals of Congress, vol. 3, p. 161. aS THE UNITED STATES AND that it was absurd to expect that a war commenced for freedom should be continued for the privilege ol catching fish. Gerry, of Massachusetts, replied: "It is not so much fishing, as enterprise, industry, employment. It is not fish merely which gentlemen sneer at; it is gold, the product of that avocation. It is the employment of those who would be otherwise idle, the food of those who would otherwise be hungry, the wealth of those who would otherwise be poor, that depend upon your putting these resolutions into the instructions of your minister." As we have seen, Adams had been instructed that the common right of fishing should in no case be given up, but in July, 1781, Congress adopted a declaration, that "al- though it is of the utmost importance to the peace and com- merce of the United States that Canada and i>fova Scotia should be ceded, and more particular!" that their equal common right to the fisheries should be guaranteed to thei.., yet, a desire of terminating the war has induced us not to make the acquisition of these objects an ultimatum on the present occasion." That we finally secured the right to the fisheries was due to the zeal of Adams and his associate commissioners and not to Congress.' At this point the influence of European diplomacy begins to appear. It is now well established that France, the fraternal ally of the new Republic, was engaged in a game of duplicity, possibly rendered necessary by her compact with the King of Spain.* » Works of Madison, vol. a, p. 595. » Jay's The Fishery Dispute, p. 35. John Adams regarded the French minister as one of ♦he greatest ene- mies of the United States, believed that he was scheming to straighten our boundarieo. and contract our fisheries. He made no secret of his belief that to think of gratitude to France was the greatest of follies and that to be influenced by it would be ruin. Franklin stood firm by the Court and wrote to Livingston in his patronizing way, respecting the Insinuations o* Adams against the Court, "and the instances he supposes of their ill-will against us, which I take to be as imaginary as I know his f mcies to be, that the Count de Ver^ennes and myself are continually plotting against him and employing the newswriters of Europe to de- preciate his character, &c. But as Shakespeare says, 'Trifles light as air, &c.,' I am persuaded, however, that he means well for his country, is always an honest man, often a wise one, but sometimes, in some things, TJTE NORTHEASTERN FISHERIES. 29 Under the influence of M. Gerard and >I. de la Luzerne, the French minister to the United States, Congress suddenly took a lower tone, and on the 15th of July, 1781, gave to the peace ■commissioner& the humiliating instructions to undertake nothing in the negotiations for peace without the knowledge and con- sent of the King of France and his minister and "ultimately to govern ov.roelves by their advise and opinion, endeavoring in our whole conduct to make him sensible how much we rely on his majesty's influence for effectual support." ' ■■ This curious resolution, denounced by Madison as "a sacrifice of the .national dignity," has never been satisfactorily explained,' but there is no longer any doubt as to the moti,'e$ of France in securino- its passage. It was at Luzerne's suggestion, also, that Congress made Jay, Franklin, Jefferson and Laurens joint commissioners with Adams, who was already in Europe. Jef- ferson refused to serve and Laurens was captured on his way t^ Europe and lodged in the Tower of London.* John Adams was much disliked by the diplomatists of France and Spain, not only because of his fearless independence of charac- ter but also because of the tenacity with which he clung to the American rij.^ ' to the fisheries. Franklin was old in diplomacy and well knc .o all the statesmen of Europe. It is difficult to understand the motives that governed the vanous powers during the negotiations which led to the Treaty of Paris. But there is no doubt on one point, — the three European powers had clear and distinct views of the dis- position to be made of the Northeastern fisheries in the event of the colonies gaining their independence. The position of Eng- land was well defined by the announcement of the Earl of absolutelj out o£ his senses." Franklin to Livingston, Dip. Corresp. Rev., vol. 4, p. 136. As to this controversy, see Letter from Laurens, Dip. Corresp. Rev., vol. 3, p. 486. Wells' ^ife of Samuel Adams, vol. 3, p. 149. For an interesting sketch of the famous controversy between Adams and Franklin see an article by George Bancro't in The Century for July, 1887, entitled, "An Incident in the Life of John Adams." * xJl^t wGiftCS^. A,vCV., VOi. lOj pp. 75» <*^» OCwTCi ju — :;; vol. 3, p. 445. > Jay's The Fishery Dispute, p. Jf- * See Magazine of American. History for July, 1887. ,/ /- ..» 30 THE UNITICD STATES AND Shelburne to Oswald, that "the lim'ts of Canada would under no circumstances be made narrower than under the ParHament of 1763, and that the rh^'n of drying fish on the shores of New- foundland could not be conceded to the American fishermen." ' Spain had been very reluctant to join France in the war against Great Britain, believing " it by so doing she would be encouraging the pnnciple of revolt against lawful authority — a pri.iciple Spai*- was very anxious not to encourage in her owa American colonies. But France overcame Spanish reluctanv'' by entering into an agreement that in the event of the Britisi. being driven from Newfoundland, the fisheries . should be shared with Spain to the 'ixclusion of the United States.' Vergennes had not gone into the war for the sake of American independence but for the purpose of humiliating England. This had now been effectually accomplished and he desired to make cuch a p°ace as would preserve the in- fluence of France over tne new nation. He w^ished to confine the territory of the United States to a narrow strip along the coast of the Atlantic. These limits were to be detailed and "circumscribed with the greatest exactness and u.. .. belliger- ent powers (especially Eng! fid, France ^nd Spain) must bind themselves to prevei.. any transgression of them." ' This plan necessitated the rejection of the American vie .- of their rights in the fisheries, which had been the subject of so much confidential correspondence between the United States and His Most Christian Majesty. In order to facilitate the de- sign of Spain it was necessary to adopt the argument that when the Americans became released from the duties of British sub- jects, they also became excluded fmm the privileges of British subjects. In a letter to Luzerne, dated at Versailles, September, 1777, Vergennes wrote: "It should, therefore, be well estab- lished that from the moment when the colonists published their > Fitzmaurice's Life of Shelburne, vol. 3, p. 255. * Bancroft's Hist, of United States, vol. 10, p. 190. * Secret Merr jir given in 'ol. 3 of Count de Circourt's confidential correspondence of Vergennes, pp. 34, 38. In vol. 3 of Fitmaurice's Life of Shelburne, page 170, is given a map "of North America, showing the Boundaries of the United States, Canada, and t*.e British possessions, according to thr --oposal of the Court of France in 1783." THE NORTHEASTEKN I i. IIERIES. 3« Declaration of Independence they have ceased to nvn a share in the fisheries, because they have forfeited, by their own act, the qualification which entitled them to such a share; that con- sequently they can offer to the court of London neither title nor actual possession. From this comes another result; viz., that the Americans having no right to the fishery we can give them no guarantee on that head." ' When Jay arrived at Paris, in September, 1782, he found the negotiations already in progress. Upon the fall of Lord NortVs ministry in March, 1782, Franklin, then at Passy, lost no time in communicating with his old friend. Lord Shelburne, who was to be the new home secretary. After an exchange of placid philosophic compliments, Shelburne sent Robert Os- wald, a Scotch London merchant and a man imbued with the economic ideas of Adam Smith, to Paris, in the character of a confidential representative and friend, to consult w ith Franklin and attempt to pave the way for formal negotiations.^ It is not my purpose to follow the course of the negotiations further than to shov/ that the article of the treaty as it was finally adooted was understood by the British commissioners as an ultimatum and was accepted in a spirit of reconciliation. Franklin had designated three conditions as necessary to a treaty: Independence, the Boimdaries, and the Ancient Fishing Franchises. The first the English government was willing to acknowledge, and the others it was thought could be adjusted without much difficulty. When Jay arrived he objected to Oswald's Lommission, which authorized him to treat with "the thirteen colonies or plantations." Jay, who had formerly advocated a triple alliance between America, France and Spain, had been cured by a resi- ' De Circburt, vol. 3, pp. J76, J77. 'This argument conveniently accords with the suggestion which closes the remarkable memoir on the princi- pal object of negotiatidi . for peace, given bv M. do Circourt (III, 2% 3S) from the French archives, that it would lie for the intcrcs' of England to have the French as companions at Ncwfoundin nd, rather than the Amer- icans, and agrees with the strong opinion presented to I.onls Shelburne tiiu vji ail i iiiAt txcviic^ai, uui nil. September, 178^, against our right to the tiiheries." Jay's The F"t»hcry Dispute, pp. 27, i8; Fif/maurlce'» Life of Shilluirne, vol. 3, p. i63. ' Sir G. C. Lewis's Adminli'trations of Great Britain, p. 8i. 32 THE UNITED STATES AND dence at Madrid and now believed that both nations %vere merely attempting to use American pretentions for their own advantage. It was the policy of England to detach the United States from France and negotiate a separate treaty with each, and Jay assisted in bringing this about. Vergenr.es informed the British minister Jr.it the commission was satisfactory and used all his influence to induce the Americans to proceed with the negotiations, arguing that to acknowledge the independence of the colonies in advance of the treaty would be putting the effect before the cause. Franklin, through his earnest desire that the negotiations should proceed as rapidly as possible and influenced by his confidence in Vergennes, was willing to accept the commission; but Jay refused to treat, except on a basis of sovereign equality, thus delaying matters for six weeks. While the negotiations were in progress, the French Court sent M. de Rayneval on a secret mission to England to try and engage that power to support the French and Spanish scheme for the division of the fisheries and the limitation of the territory of the United States to a narrow strip along the Atlantic coast. In order to counteract the influence of M. de Rayneval, Jay sent Benjaman Vaughn to London' and his mission proved so successful that the scheme of France by which she hoped to cramp the future of the United States by surrounding it with an impenetrable cordon of European influence, and for the accomplishment of which her ablest diplomatists were engaged at Paris, Madrid, Philadelphia and London, was completely frustrated. Great Britain adopted the view of the American Commissioners with the full knowledge and understanding that no treaty could be made without the recognition of the equal rights of the citizens of the United States in the northeastern fisheries. Vaughn submitted to Lord Shelburne a paper containing a full discussion of the fishery question' and stating in conclu- sion "that it certainly could nut be wise in Great Biitiiin, what- ever II might be in other nations, thus to sow the seeds of future ■ !7 ^ •,.!■ ; ,~,f i'..'.^ ;r-.l=i'..-.r! ir» lay to Livinsiston; Nov. 17. 178a; Dip. Correnp. Rev., vol.8, pp. ll% 161. i('S' •'O^; note by Sparks on the Aim» of the French Court, Uip. Corresp. Rev., vol. b, p. io8. ' Dip. Corresp. Rev., vol. 8, pp. 165, iWi. THE NORTHEASTERN' FISIiLIUES. 33 wars in the very treaty of peace, or to lay in it the foundation of such distrust and jealousies as on the one hand would forever prevent confidence and real friendship, and on the other nat- urally lead us to strengthen our security by intimate and perma- nent alliances with other nations; ♦ * * it would not be wise for Great Britain to think of dividing the fisheries with France ard excluding us, because we could not make peace at ouch an expense, and because such an attempt would irritate ^imerica still more; would perpetuate her resentment, and induce her to use every possible means of retaliation, and by imposing the most rigid restraints upon commerce and Great Britain." These "considerations" appear to have decided the British ministry. The cabinet adopted the American view and Vaughn carried back to Pari'^ a i.ew commission for Oswald.' While the ne!rotintinn<; were in progress an event occured in America which had an important effect upon their future course. Vergennes was corrcspdnJiug with his representative at Phila- delphia and characterizing the American demands as preposter- ous. On the 13th of March, 1782, M. Marbois, who had probably been instructed to promote the renunciati )n of the fisheries, wrote to Vergennes: "But Mr. Samuel Adams is using all his endeavors to raise in the State of Massachusetts a strong opposition to peace, if the Eastern States are not thereby admitted to the fisheries, and in particular to that of Newfound- land. Mr. Adams delights in trouble and difficulty, and prides himself in forming an opposition against the govcrnn.ent where- . of he himsci; is President.' His aims and intentions are to render the minority of consequence; and at this very moment he is attacking the Constitution of Ma>Nachusetts, although it be in great measure his own work. But he has disliked it since the people have slmwn their uniform attachment to it. It may be expected that, with this disposition, no measure can meet the approbation of Mr. Samuel Adams; and if the States ■Lord Shelburne wrote to O-^wald, September 13, 178a: "Having •aiu ttiiii June cverjfthing which has been desired, there is notiiing tor me to trouble vou with, except to add thin: We have put the greatest confidt-nce, I believe, ever placed in man in the American Comnu««ion- fr»." I it/rnaurice'* Life of Shelburne, vol. i, p. 2b-j. • Mr. Adams was Prehident of the Massachusetts Senate. 34 THE UNITED STATES AND 1 .;,•,> to the fisheries, and be certain of partaking *^t '''urht « - ".u, intd^nc, would bo directed to. Mh; conmfe. "f Canada and Nova Scotia; bu. he could r. have used' fitter engine than the fisheries for stirring up Th prions of the Eastern people, by renewing the quest.on vhich hllain dormant during his two years absence from Bos- In He has raised the expectations of the people to an ex- ,„?„t Ditch The public prints hold forth the .mportance :;*f fish e' The'reigning toast in the East is. May tne U„*d States ever maintain their rights to the fishenes. I h^ ften been repeated in the deliberations of «he Geneva Court .No peace without the fisher.es.' However clear the nrinclple may be in this matter, it would be useless and ev n dL'rousrto attempt informing the people through the publ.c la«rs But it appears to me possible to use all means for pre^ ^^L the consequences of success to Mr. Samuel Adams and r X andTtaUe the liberty of submitting them to your ' ™:Tetrta;;t'cfdT'the hands of the American Com- ml^^ner by the English Secret Service and showed conclu- 3; .he object of' the French Court. The Amertcans deteiined to negotiate a separate treaty, Oswald's mstrucuons havirbeen so altered as to allow him to treat w,th them ol^ftely. On the Jtb of October Oswald accepted an ar^celwing citi.enf of the United States to dry thetr catch Tthe shores of Newfoundland, Strachey was now added to °he English Commissior., the government beg.nnmg to fear Ihat Oswald was becoming too liberal. After a long d,scuss, on letter John Adams wrote thirty years later. 1 oannoi samuel of M Marbois without observing that his Ph'.'''P-;f '"^^ .^;;,t Jl Adams is a jewel in the crown of that patnot and hero, almo.t a bn itantL hi. exception from pardon in General Gage's proclamation . Z ZaL Works, vol. t, p. 673. See Samuel Adan.' coma.en s on M. itarbois- letter in WeUs. Life and V '^^ Se^^ ^ ':r:^^tZ l^ls •Ln lei In his funeral discourse, Thacher says. n wa» LVv! ope' r-c,p,e, .. the Co.e o. -l-".^!."^!"^ ".Cri'^e ^;'Z::;uuS:;^;'r:p-a;jr:p^ac; ««.^on pa;to„i,o. by the French Ministry." THE NORTHEASTERN FISHERIES. .^5 the liberty to dry and cure fish on the coast of Newfoimdlaiul was transferred t> the uninhabited coasts of Nova '-cotia, Labra- dor, and the Magdalen Islands as long as they remained un- settled. The English Commissioners objected to the word "right" in this connection and the word "liberty" was substi- tuted for it.' ^ At Franklin's suggestion the article was made to include the right to take fish on the Grand Bank and all other banks of Newfoundland, and also in the Gulf of St. Lawrence and all other places in the sea "where the inhabitants of Both countries used at any time heretofore to fish." At this point, the negotiations came to a standstill on the question of indemnification of the loyalists. As the French Court was known to favor the English claims, a new instrument was drawn and Fitzherbert was added to the Englis! Commis- sion in the hope of bringing French pressure to bear. On the same day Vergennes wrote that France would no more prolong the war to support the American claims to the fisheries than would the Americans to gain Gibraltar for Spain. George III urged Shelburne to propose to Louis XVI the denial of the fisheries to the Americans.' But before this suggestion could be acted upon the commission met and Strachey explained the English concession, relative to the fisheries and concluded that the question of indemnification alone stood in the way of peace. On the 29th of November the Commission met at Mr. Jay's rooms. The following extract from Mr. Adams' diary shows what was said and done about the fisheries at this meeting and throws a flood of light on the intention and understanding of the par- bes: "29th, Friday,- Met Mr. Fitzherbert, Mr. Oswald, Mr. Frankhn, M-. Jay, Mr. Laurens and Mr. Strachey at Mr. Jay's Hotel d' Orleans, and spent the whole day in discussions about the fisheries and the Tories. I proposed a new article concern- ing the fishery; ,t was discussed and turned in every light, and muU.tudes of amendments proposed on each side; and at last the article drawn as it was finally agreed to. ' Works of John Adams, vol. ^, p. 335 » I.ham's The Fishery Question, p. i^. 36 THE UNITED STATES AND "The Other English gentlemen being withdrawn upon some occasion, I asked Mr. Oswald if he could consent to leave out the limitation of three leagues from all their shores and the fifteen from those of Louisbourg. He said in his own opinion he was for it; but his instructions were such that he could not do it. I perceived by this and by several incidents and little circumstances before, which I had remarked to my colleagues, who were much of the same opinion, that Mr. Oswald had c instruction not to settle the articles of the fishery and refugees without the concurrence of Mr, Fitzherbert and Mr. Strachey. Upon the return of the other gentlemen, Mr. Strachey proposed to leave out the word 'right' of fishing and make it 'liberty.' Mr. Fitzherbert said the word 'right' was an obnoxious- ex- pression. Upon this I rose up and said: 'Gentlemen, is tnere or can there be a clearer right? In former treaties — that of Utrecht and that of Paris — France and England have claimed the right and used the word. When God Almighty made the banks of Newfoundland, at three hundred leagues distant from the people of America, and at six hundred leagues distant from those of France and England, did He not' give us as good a right to the former as to the latter? If Heaven, at the creation, gave a right, it is ours at least as much as yours. If occupation, use and possession give a right, we have it as clearly as you. If war and blood and treasure give a right, ours is as good as yours. We have been continuously fighting in Canada, Cape Breton, and Nova Scotia for the defense of this fishery, and have ex- pended beyond all proportion more than you. If then, the right cannot be denied, why should it not be acknov .edged and put out of dispute. Why should we leave room for illiterate fisher men to wrangle and chicane?' "Mr. Fitzherbert said: ' The argument is in your favor. I mi.st confess your rea- sons appear to be good; but Mr. Oswald's instructions were such that he did not see how he could agree with us.' « ♦ * After hearing all this, Mr. Fitzherbert, Mr. Oswald and Mr. Strachey retired for some time, and returning, Mr. Fitzherbert said that, upon consulting together and weiehine everything as maturely as possible, Mr. Strachey and himself had determined to advisq Mr. Oswald to strike with us accordine to the terms <;-r THE NORTHEASTERN- FISHERIES. 37 wfc had proposed as our ultimatum respecting the fishery and the, loyalists. Accordingly, we all sat down and read over t^-x whole treaty and corrected it, and agreed to meet to-morrow at Mr. Oswald's house to sign and seal the treaties, w' -fh the sec- retaries would copy fair in the meantime. " I forgot to mention that when we were upon t'- 1 hshery and Mr. Strachey and Mr. Fitzherbert were urgiiig us to leave out the \ -d 'right' and substitute 'liberty,' ". .old then, a last, in answer to their proposal to agree upon all other articles and /e that of the fishery to be adjuste I in tnc definitive treaty, I never could put my hand to any articles vithout satisfaction about the fishery; that Congress had, thre° or four years ao-o, when they did ^e the honor to give me a commission co make a Treaty of C^ nerce with Great Britain, given me a positive instruction not to make any >ach treaty without an article in the Treaty of Peace acknowledging a right to the fishery; that I was Happy that Mr. Liurens was now present, w! o, I believeed, was in Congress at the time and must remember it. Mr. Laurens upon this ^aid, with great firmness that he wis in the same case, and could never give his voice for any artic.es with- out this. Mr. Jay spoke up and sai'd it could not be a peace, it would be only an insidious truce without it." ' Thus the entire article was made a condition of peace, and it was so understood by the British Cornmissiorers. Mr. Strachey wrote to Mr. Towns" u Novembe- .-'.o, "The article of the fishery has been particularly diffic to settle as we thought the instructions were rather limite I. It is, however, beyond a doubt that there, could have bten no treaty at all if we had not adofted the article as i! now stands." On November 29, 17S-. Mr. Oswald wrote to Lord Shel- bume, "A few hours age ae thought it impossible that any treaty, could be made." A.nd to Mr. Townsend the following day he wrote, ' If w* had not given way in the article of the fishery we should have had no treaty at all, Mr. Adams ha'.ing declared that he would never put his hand to any treaty if the restraints regardiror the three leagues and fifteen leagues were not disnensed witii. ' Works of John Adams, vol. 3, pp. 333-335. 38 THE LNITED STATES AND privilege of diving fi^h on the unsettled parts of Newfouiul- land." And Strachey wrote to Xepcan, "If this is not as good a peace as was expected, I am confident it was the best that could have been made. Now, are we to be hanged or applauded for thus rescuing England from the American war?"' As to the contemporaneous interpretation of the treaty, I quote from a pamphlet by J. Q. Adams, published in 1822." " That this was the understanding of the article by the Brit- ish Government as well as by the American negotiators is ap- parent to demonstration by the debates in Parliament upon the preliminary articles. It was made, in both houses, one of ihe great objections to the treaty. In the House of Commons, Lord North • ♦ • said ' By the third article we have, in our spirit of reciprocity, given the Americans an unlimited right to take fish of every kind on the Great Bank and on all the other banks of Newfoundland. But this was not sufficient. We have also given them the right of fishing in the Gulf of St. Lawrence, and at all other plac js in the sea where they have heretofore enjoyed, through us, the privilege of fishing. They have, lik -wise, the power of even partaking of the fish- ery which we still retain. We have not been content with resigning what we possessed, but even share what we have left." • * ♦ In this sp^^ech the whole article is con- sidered as an improvident concession of British property; nor is there suggested the slightest distinction in the nature of the grant between th< nature of : he right of fishing on the banks and the liberty of the fishery on the coasts. Still more explicit are the words of Lord Loughborough in the House of Peeis. ♦The fishery,' says he 'on the shores retained by 'Sri'ain is, in the next article, not ceded but recognized as a right inherent in the Americans, which, though no longer British subjects, they are to continue to enjoy unmoieste,\ no right, on the other hand, being reserved to British subjects to approach their shores, for the purpose of fishing, in this reciprocal treaty." The American Commissioners had determined not to be used . "-"- -"-"--:- -c» r :;•... .;ur:i.v, :; 1 ;:v vyt DriciDui iic vui. iii, |i]>. joi 303 For the answer to Stracl" y's que>tion, nee F'inkc'* •• Results of Cornwallis" Surrender," Allaniit; Mo thl^-, Jan., i836. * The Fi»herie<< tiid tl .- Mis«i,sip[)i, pjv 189, lyo. THE -NORTHEASTERN- FISHERIES. 39 /^3 to further the ambitious projects of the European powers and they succeeded in guarding; the interests of their country at every po.nt. Their attitrid. is illustrated bv an incident which occured during the negotiations. The American CommivM.,.- ers refused to continue the war for the furtherance of French and Spanish objects. " You are afraid " said Oswald to Adams "Of being made tools of by the powers of Europe." "Indeed I am," replied Adams. « What powers r asked Oswald "All of them," bluntly replied Adams.' By maintaining this position throughout, they succeeded in preserving their Independence, their Boundaries and their An cient Fishing Rights The Treaty was signed September 3, 17S3, and Article III was as follows : " It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of everv kind on the Grand Bank and on all the other banks of Newfoundland also in the Gulph of St. Lawrence, and at all other places t the .ea where the inhabitants of both countries used at any time heretofore to fish And also that the inhabitants of the United States shal have liberty to take fish of every kind on such part lilTTT ^^^"^°-^^-^ - British fishermen shall use, (but not to dry or cure the same on that island ) ; and aLo on the coasts, t^ays, and creeks, and all other of His British Majesty's dominions in America; and that the American fishermen sh.U have liberty to dry ai.d cure fish in any of the unsettled bays, harbours, and creeks of Nova Scotia, Magdalen Islands, and Labrador so long as the same shall remain unsettled; but so soon as the same, or either of them, shall be settled, it shall not be awful for the said fishermen to dry or cure fish at such settlement without a previous agreement for that pupo with ^^^^^nh^ha^s, proprietors, or possessors of the ground." ' • Flumaurke'8 Life of Shclburne, vol. 3, p 300 ~~ " * Treaties and Convenfion h^.i i- , ' rP- 309. 3,4. '•■'^" ^ ""*-'^ =»'*"=* «"^'d other Power,. 4° THE UNITED slATES AND THE FISHERIES AT THE CLOSE OF THE REVOLUTION. At the close of the war the fishery industry was prostrate, and the memberb of Congress from Eastern States earnestly advocated the adoption of a system which would place it once more upon a paying basis. The question was much discussed durino- the session of the first Congress. In the course of the debate on the bill to levy "duties on imports," Fisher Ames, of Massachusetts, said: "We exchange for molasses those fish that it is impossible to dispose of anywhere else; we have no market within our reach but the islands from whence w e get molasses in return, which again we manufacture into rum. It is scarcely possible to maintain our fisheries with advantage, if the com- merce for summer fish is injured, which I conceive it would be very materially, if a high duty is imposed upon this article; nay, it would carry devastation throuj^hout all the New England States; it would ultimately affect all throughout the Union. * * ♦ When gentlemen contemplate tlie fishery, they admit its importance, and the necessity we are under of encouraging and protecting it, especially if they consider its declining situation; that it is excluded from those advantages w ich it formerly obtained in British ports, and participates but in a small degree of the benefits arising from our European allies, whose mar- kets are visited under severe restrictions; yet, with all these discouragements, it maintains an extent which entitles it to the fostering carf' of government. • * ♦ In short, unless some extraordinary measures .^re taken to support our fisheries, I do not see what is to prevent their inevitable ruin. It is a fact that near one-third of our fishermen are taken from their profession — not for want of skill and al 'ies in the art, for here they take the rank of every natiou on earth — but from the local, chilling policy of foreign nations, who shut us out from the avenues to market. If, instead of projection from the government, we extend to them oppression, I shudder for the consequences. 4.1 „....»., I contend they are poor; they ' See Annals of Congress, vol. i, pp. 291, 294, 334, 330, 335. THE NORTHEASTERN FISHERIES. In 17S9 Congress came to the assistance of the fishermen n„J .nau,„ra.ed the s.sten, of bounties, which cont n„^ I ^ ' the recprocy treaty of ,S54.' This act allowed a bounty of five cents per quintal on dried, and the same sum perrarrclon p.ckled fish exported, and imposed a duty of fifty cents ner quintal and seyenty.fiye cents per barrel L for gn foh fl ported mto the United States. ^ "' In his speech to Congress, in ,790, Washington suted that "our fishenes and the transportation of our own produce offer „ oC" re:s""'°;/rtr'""' ""-"v- '''•■"' '-p-^'^ - °" Plied «Th7 ■ 7" '° "''' "'''''"• 'he Senate re: plied "The naygation and the fisheries of the United St,,!. ^:: Cuh ^■■'"'"■-r" " '-P-" "imposition t" hem by all the means which shall appear to us consistent ^,1 .he,r natural progress and permanent prosperity." "■ gi:d""Tryr:d co::ri ^'' t- '"-""-'^y .e^s for their aidf "If! pZr r^er^frr r^ tthe hi"'"':- "' ""'"«' ■" '"" "-'» from tha town only $.;3. The afetl'e a"„„re p n'^ wertllfi" L''" This petition with o he"'o ?"'T T' ^°'+'° """"'• to JeSeLn, then Secretarv ,T ''^""'"' ""^ «'"'-• '''. i» ■ In this report T °ff ^^""' °" ""' ''"' "' 'h' «»her. and ..isadvantr oirx:: -cT fiir::"!' ""r-^" vantages were: ^'^n n.nermen. Among the ad- I. The neighborhood of the P-reit fi«h...- our fishermen to brin^ h fisheries; which permits wives and children ^ """"■ '^'^ ^'^ ^^ -^'^'^ ^y their ' Benton's "Thirt V V. Uefferson'« Works, vol. 7 "p "^s ""ex V^' printed in H. Min. Doc Nn ^Z:/.'^^' ' ^°"- '^' ^^°"K • 3d Doc.No.34,4JdCong., jndSes,. Sest., re- THE UNITED STATES AND 2 The shore fisheries so near at hand as to enable the ves- sels* to run into port in a storm, and so lessen the risk, for which distant nations must pay insurance. The winter fisheries, which, like household manufactures, employ portions of time which would otherwise be useless. A The smallness of the vessels, which with the shortness of the voyage, enables us to employ, and which, consequently requires but a small capital. S The cheapness of our vessels, which do not cost above the half of the Baltic fir vessels, computing price and dur-.tion. 6. Their excellence as sea boats, which decreases the risk and quickens the returns. 7. The superiority of our mariners in skill, activity, enter- prise, sobriety, and order. 8 The cheapness of provisions. 9. The cheapness of casks, which of itself, was said to be equal to an extra profit of fifteen per cent. To balance these, were the disadvantages over which Con- gress had no control: 1. The loss of the Mediterranean markets. 2. Exclusion from the markets of other nations. 3. High duties. 4. Bounties granted rival fishermen. • Among the disadvantages for which it was thought Congress could find a remedy were : j • u 1. Tonnage and naval duties on the vessels employed m the fishery. 2. Import duties on salt. 3. Import duties on tea, rum, sugar, molasses, hooks, lines, leads, duck, cordage, cables, iron, hemp, and twine, coarse wool- lens and the poll tax levied on the persons of the fishermen. It was therefore recommended that there be a remission of duties on such articles as were used by the fishermen, and that a retaliatory duty be levied on foreign oils coming to American markets. . _ . The following year the bounty on dried and pickicd iisn war, abolished and in lieu thereof a specific allowance was made to the vessels engaged in the cod-fishery. Boats of between five and twenty tons were allowed one dollar a ton per annum; those THE NORTHEASTERX FISHERIES. 43 between twenty and thirty tons were allowed two dollars and fifty cents a ton per annum, but no vessel could receive more than one hundred seventy dollars in one year. By a sub- sequent act of the same year these rates were increased one-fifth. The^e acts were opposed in Congress by Giles of Virginia and other;, on the ground of unconstitutionality. In 1799? the law was again revised so as to allows vessels of the smallest class to draw one dollar sixty cents per ton, and vessels of from twenty tons upwards two dollars and fifty cents per ton for each year, while the maximum was increased to two hundred seventy- two dollars a year. In iSoo this was again revised in matters of detail. , In 1793 an act was passed authorizing the collector of cus- toms to grant vessels duly licensed permits "to touch and trade at anj foreign port or place," and under such papers to procure salt and other articles necessary for their outfits without being subject to duty. The British government endeavored to induce the disaffected fishermen to emigrate to Nova Scotia. A vessel was sent from Halifax to Nantucket to convey the people who proposed to move, but just as two families had gone aboard, a letter was re- ceived from Lafayette assuring them that their friends in France would do something for them. The embarkation ceased at once and the vessel was obliged to return to Halifax with its cargo of two families. France was unwilling to see from four to five thousand of the best seamen in the world transfer their allegiance to England, and invited them to come to Durkirk. But only nine families availed themselves of the invitation. 44 THE UNITED STATES AND DIFFE^. ST CONSTRUCTIONS OF THE T^'.EATY OF 1783. It soon became apparent that the o governments differed in their construction of the third article of the Treaiy of 17S3. Great Britain took the position that the treaty was not a unity ? >J that while the right to the deep sea fishing was to be reonrdcd ~- permanent, certain liberties of fishing had been granted by the treaty and consequently were liable to be terminated by war. With the close of the war of 18 12 this became a question of vital importance. The United States claimed that the treaty was a unity, that the right to take fish on the coast jf New- foundland under the limitation of not drying or curing th . same on that island, and also on the other coasts, bays and creeks, together with the limited right of drying and curing fish on the coasts of Nova Scotia, Li»brador and the Magdalen Islands, was simply recognized, not created by the treaty of 17S3; that ic merely defined the boundaries between the twj countries and the rights and duties belonging to each; that 't was analogous to a treaty of partition;* that the treaty being one which recog- nized independence and defined boundaries belonged to t-hat class wl.'ch are permt.pent, and not affe-ted b> ,.ny '-i-v" sus- pension of friendly relations betweev, the ^.aticbi and conse- quently that the article relating to ihe fisheries was no more affected by war than was that part which acknowledged inde- pendence and estrl 'ished bounda'ies. In a tamuus dispatch" signed by Earl Bathurst, but understood to have been written by Mr. Canning, it is broadly static that Great Britain knows " no exception to the rule that all treaties are put an end to by a subsequent wa between the parties." It is easy ^o show that this statement is too broad. During the agitation of the fishery question in November > Lyman's Dij'lomacy of the U. S., vol. t, p. ; 17; Cushing's Th-i Treaty ^£ ".'. _u:.-..Tt.--. - -!~.fi » State Papers, For. Rel., (Pol. Ed.) vol. 4, p. 353. Earl Bati.urst to J.Q. Adams, Oct. 30, 1815. THE NORTHEAsIEKN FISHKKIES. 45 iSiS, President Monroe consulted Senator C. A. Rodney,' and received from him a wiitten opinion from v/hich I quote a^ fol- lows:' "When the treaty of Amiens, in iSo3, between Great Britain, France, Spain, and Holland, was under discus.siou in Parliamert, it was objected by some members that there was a culpable omission in consequence of the non-renewal of certain articles in former treaties or conventions, securing to Enjjland the gum trade of ihe river Senegal and the right to cut leg- wood at the Bay of Honduras, &c. f" answer to this sugges- tion in the House of Lords, it was well observed by Lord Auk'and 'thr.t from an attentive perusal of the words of the publicists, he had corrected in his own mind, an error, still pre- valent, that all treaties between nations are annulled by a war, and to be reinforced must be specifically renewed on the return of peace. It was true that treaties in the nature of compacts or concessions, the en-joyment of which has been inteirupted by war, are thereby rendered null; but compacts which were not impeded by the course and effect of hostilities, 3uck aj ihe rights of a fishery on ihe coasts of either of the powers, the stip- ulated right of cutting logwood in a particular district — com- pacts of this nature were ntn itfected I'y wrr. * ♦ * It had been intimated by some thar iy the non-renewal of the treaty of 1786, our right to cut logwood might be disputed; but those he would remind of the principle already explained, that treaties, the exercise of which was not impeded by the war, were re-established with peace. * « • He did not consider our rights in India or Honduras in the least affected by tae non- renewal of certain articles in former treaties. "Lord Ellenborough (Chief Justice of the court <-r King's Bench) 'felt surprised that the non-rencwa' of treaties should have been urg'.-d as a serious objection to the definitive treaty. • • ♦ • He was astonished to hear men of talents argue that the public huv of Europe was a dead letter ')ocause certain treaties were not renewed.' " Lord Eldon,(then and at present the high (.''laiicellor of Eng- land, and a member of tho cabinet) 'denied that the rights of * Ex Attornev Gen'-ral Roiiiuv to I'residcni 1 lonroc, Nov. 3, iSi8; Monroe MSS , Dcparimeiit of Sute. v^ 46 THE UNITED STATES AND England in the Ray of Honduras or the river Senegal were af- fectT-d by the non-renewal of the treaties." " In the House of Commons, in reply to the same objection made in thellou^e of Lords,it was stated by Lord Hawkesbury, the present Earl of Liverpool, then Secretary of State for the foreign department and now prime minister of England, which post he occupied when the treaty of Ghent was concluded, 'that to the definitive treaty two faults had been imputed,of omission and commission. Of the former, the chief was the non-renewal of certain treaties and conventions. He observed the principle on which treaties were renewed was not understood. He af- firmed that the separate (jonvention relating^' our East India t.ade, and relative to our right of cutting logwood in the Bay of Hondu as, has been altogether misunderstood. Our sover- eignty in India was the result of conquest, not established in consequence of stipulations with France, but acknowledged by her as the foundation of them; our rights in the Bay of Hon- duras remained inviolate,the privilege of cutting logwood being unquestionably retained. * • * He did not conceive our rights in India or at Honduras were affected by the non-renewal of certain articles in former treaties.' "It is remarked in the A.mual Register that Lord Hawkes- bury's speech contained the ablest defense of the treaty. The chancellor of the exchequer, Mr. Addington, the present Lord Sidmouth, and the late Mr. Pitt supported the same principles in the course of the debate. I presume our able negotiators at Ghent entertained the same opinions when they signed the late treaty of peace. "It may be recollected that during the Revolutionary war, whp 'he British Parliament was passing the act to prohibit thr colonies from using the fisheries, some members urged with great force and eloquence, 'that the absurdity of the bill was equal to its cruelty and injustice; that its object was to takeaway a trade from the colonies which all who understood its nature knew they could not transfer to tiiemsiUcs ; that Goil anu na- ture had given the fisheries to New antl noi Old England."' > Sec Hansard's Debates, vol. 23, p. 1147 » In 1765 Sir James Marriot, contlrmitiK an opinion j;ivcn bv Attorney Otrnrrai t\vo«*i ami rSi»ii»,itui vitiKi.ii r-iiJr.ay ;.. ly.Sj. ucv:;:^u viiat i::c THK NORTHEASTKRN Fr-^i(KKIK>. 47 «*The ar^umcr. - n whicn the people of America found their claim to fish on tlic bai.I^s of Newfoundland ari«e," wrote Mr. Livingston,' "first, fror- their having once formed a part of the British Empire, in which state they always enjoyed, as fully as the people of Britain themselves, the right of fishing on these banks. They have shared in all the wars for the extension of that right, and Britain could with no more justice have excluded them from the enjoyment of it (even supposing that one na- tron could possess it to the exclusion of another), while they formed a part of the Empire, than they amk\ exclude the peo- ple of London or Bristol. If so, the only inquiry is, How have we lost this right? If we were tenants in common with Great Britain while united with her, we still continue so, un' ^s by our own act, we have relinquished our title. Had we parted with mutual consent we should doub'^ess have made partition of our common rights by treaty. But the oppressions of Great Britain forced us to a separation (which must be admitted, or we have no right to be independent); and it cannot certainly be contended that those oppressions abridged our rights or gave new ones to Britain. Our rights then are not invarnlated by this separation, more particularly as we have kept up uur claim from the commencement of the war, and assigned the attempt of Great Britain to e elude us from the fisheries as one of the causes of our recurring to arms." ' fishery clauses of Ihe Treaty of Peace and Neutrality concluiied between England and France, November i6, 1686, were valid notwithstanding a subsequent war. Opinions of Eminent Lawyers on Various Points of English Jurisprudence, chiefly Concerning the Colonies, Fisheries, and Commerce of Great Britain, by George Chalmers; vol. 2, pp. 344-35S- For the effect of war on treaties ,see also, Field's International Code; Wharton's Int. Law Dig. vol. 2, chap, vi, sec. 135; Blaine's Twenty Years of Congress, vol. 2, p. 617; .Society vs. Ne%v Haven, 5 Curtis (U. S.), 492; Sutton vs. Sutton, i Rus. ,i M., 663; Phillimore's Int. Law, vol. 3. Pi'- ^-^-O" 679; Wheaton's Klem. Int. Law (Lawrence), pp. 3;,4-342. > R. R. Livingston, Secretary of State, to Franklin, Jan. 7, 1782: Frank- lin's Works (Sparks' Ed.), vol. 9, p. 135. Mn the case of Sutton vs. Sutton, l Rus. \' M.. 675, from ul.iih no appeal was taken, Sir J. Leach, Master of the Rolls, passed upon the question a» to how far territorial rights given by the treaty of 1794 were abrogated by the war of 181 1. In thi^ decision, rendered in 1S30, it was >aid: "The rela- iiuns wiiici* ii.iii ^iin^i-»it li ni.I">*tc"i v» >K.. formed one empire led to the introduction of the ninth section of the ^ i 48 "IHE UNITED STAT S AND In his somewhat celebrated pamphlet on The Fisheries and the Mississippi, John Quincy Adams says:' "As a possession it was to be held by the people of the United States as it had been held before. It was not, like the land partitioned out by the same treaty, a corporeal possession, but, in the technical language of the English law, an incorporeal hereditament, and in that of the civil law a right of mere faculty, consisting in the power and liberty of exercising a trade, the places in which it is exercised being occupied only for the purposes of the trade. Now, the right or liberty to enjoy this possession, or to exercise this trade, could no more be affected or impaired by a declaration of war than the right to the territory of the nation. The interruption to the exercise of it, during the war, could no more affect the right or liberty than the occupation by the enemy could affect the right to that. Tl'.e right to territory could be lost only by abandon- ment or renunciation in the treaty of peace, hy agreement to a new boundary line, or by acquiescence in the occupation of the territory by the enemy. The fishery liberties could be lost only by express renunciation of them in treaty, or by acquiescence, on the principle that they were forfeited, which would have been a tacit renunciation." "In case of a cession of territory," says Mr. Adams," "when the possession of it has been delivered, the article of the treaty is no longer a compact between the parties, nor can a sub- sequent war betv/cen them operate in any manner upon it. So of all articles, the purport of which is the ackncivledgment by one party of a pre-existing right belonging to another. The engagement of the acknowledging party is consummated by the ratification of the treaty. It is no longer an executory contract, but a perfect right united with a vested possession, is thenceforth in one party, and the acknowledgment of the other is in itsov/n treaty of 1794, and made it highly reasonable that the subjects of the two parts of the divided empire should, notwithstanding the separation, be protected in the mutual enjovmcnt of their '.aiidid property; and the privileges of natives being reciprocally given not only to the actual pos- sessors of land but to their heirs and assigns, it is a reasonable construc- tion that it was the intention of the treaty that the operation of the treaty oPiOuii-i lit- pel iiidiic:rL, »*iiu nui iJCprriG Upor, ;» r;;uIC OI pcULC. ' Page iGi; Lyman's Diplom.icy of the U. S., vol. I, p. 117. ' The Fisheries ^nd the Mississippi, p. 195. THE NORTHEASTERN FISHERIES. 49 nature irrevocable. As a bargain the article is extinct; but the right of the party in whose favor it was made is complete, and cannot be affected by a subsequent war. A grant of a faculta- tive right or incorporeal hereditament, and specifically of a right of fishery, from one sovereign to another, is an article of the same description." ' 'In 1823, ex-President John Adams wrote to William Thomas: "The inhabitants of the United States had a.-s clear a right to every branch of the fisheries, and to cure fish on land, as the inhabitants of Canada or Nova Scotia. * * * the citizens of Boston, New York, or Philadel- phia had as clear a right to these fisheries, and to cure fish on land, as the inhabitants of London, Liverpool, Bristol, Glasgow or Dublin; fourthly that the third article was demanded as an ultimatum, and it was declared that no treaty of peace should be made without that article. And when the British ministers found that peace could not be made without that article, they consented, for Britain wanted peace, if possible more than we did; fifthly, we asked no favor, we requested no grant, and would ac- cept none." Quoted and adopted by Mr. Cass, in his speech on the Fish- cries in the Senate, August 3, 1852, App. Cong. Globe, 1852. In a note to a speech delivered by Rufus King in the Senate, April 3, 1818, and afterwards published in pamphlet form, it is said that the fish- eries '-on the coasts and bays of the provinces conquered in America from France were acquired by the common sword, and mingled blood of Americans and Englishmen — members of the same E.apire, we, with them, had j. common right to these fisheries; and, in the division of the empire. England confirmed our title without conditioii or limitation; a title equally irrevocable with those of our boundaries 01 of our indepen- dence itself." Annals of Congress, 181S, p. ^;iS. The moment the United States became a sovereign power its citizens were entitled to the rights of the fisheries: Mcllvaine, vs. Coxe, 4 Cranch (U. S.i. 209: Opinion, Ex. Attorney General Rodney — Monroe MSS., Department of State. The United States never regarded the treaty of peace as a grant of inde- pendence or as creating the several colonies as distinct political corpora- tions. It was emphatically a treaty "f partition, and such was the view- adopted and proceeded upon by the British ministry by which it was ne- gotiated. This ministry had come into power pledged to the ide;) of a friendly separation between the two parts of the empire, conceding to each certain territorial rights. The idea of a future reciprocity betweeri the two nations, based on old traditions, as moulded by modern economical liber- alism, was especially attractive to Shelburno, by whom, ;is prime minis- ter, the negotiations wer^ iiltiin:itol v cjosfd. Wharton's Int. I,.-iw nicest, vol. 3, p. 40; Bancroft's P'ormation of the Fed. Const., vol. vi, ch. i; Franklin MSS., in Departmeni of State. 5° THE LNnF.D si AXES AND THE NEGOTIATIONS AT GHENT. The war of 1S12 had on the whole, proved disastrous to the American arms. While the navy had won credit on the ocean, uEn-land did .s she pleased on the land." The condition of affaire was -loomy when, in the autumn of 1S14, the American Commissioners arrived at Ghent. The proffered mediation of the Emperor of Russia had been refused by Great Britam and the prospects for an honorable peace were far from flattering. The Araeiican Plenipotentiaries were J. Q.Adams, J. A, Bay- ard, Jonathan Rus.ell, Henry Clay,and Albert Gallatin. Great Britain sent Lord Henry Gambler, Henry Goulburn, and William Adams, "none of them very remarkable for genius, and still less for wei-htof Influence; as compared with the American Commis- sioners °hev were unequal to their task.'" But this was of little importance, as the negotiations were directed from London, and the British Commissioners, "mere puppets of their govern- ment,'' lid not dare to move without seeking the approval of Lord '^astlereagh, or Lord Liverpool. The opening of the negotiations was very unsatisfactory to the Americans. The British Commissioners took hign ground and treated the Americans with lofty insolence, making extravagant territorial claims utterly unjustified by the state ot the war! But it soon became evident that they had pitched the negotiations in too high a key. The claims made by the Brit- ish Commissioners were not approved by the Cabinet. Lord Castlereagh advised a considerable "letting down of the ques- tion,"' and Lord Liverpool replied that, "Our Commissioners had certainly taken a very erroneous view of our policy."' The Americans bluntly refused to treat on the basis oi uti possidetis or on anv basis other than the siuius quo ante bcllum in respect to territory. It seemed to all that the negotiations were at an end unless the British government should recede from the position it had taken. This, after a care ful estimate of > Adams' Life of Gallatin, p. 519- Wellington Sup. Desp. vol. 9. p. 214- ' IMAGE EVALUATION TEST TARGET (MT-3) '^^ // ^ %^4p /<^,.% < n V y. c/. %o % 1.0 1= 1.25 •ii IIIII2 2 !!^ m 1^0 ||ii!2.0 1.4 1.6 V] c /] >^> e-H^M s :> . '^^ /A W Photographic Sciences Corporation <^^4^ .V 13 WIST MAIN STRliT WflSTI* N Y I4S«0 I 716) 373-4S03 \ THE NORIHEAsTKK.N FISHERIES. the resourses of the Empire, it decided to Jo, and once on the downward track Goulburn was not allowed to stop at trifles. "These gentlemen," wrote Adams, "after commencino- the negotiations with the loftiest pretences of conquest, finally set- tled down into the determination to keep Moose Island and the fisheries to themselves." When it became evident to the British Premier that no treaty- would be signed at Ghent, he determined to send the Duke of Wellington to America with full power to fight or make peace. Whe^his brilliant scheme was communicated to his Grace, he replied in a letter to Lurd Liverpool, which doubtless had great influence on the course of the negotiations. He told him that the government had made a blunder; "I confess that I think you have no right, from the state of the war, to demand any conces- sion of territory from the Americans. Considerino- evervthino-. it is my opinion that the war has been a most successful one, and highly honorable to the British arms; but from particular cir- cumstances, such as the want of the naval superiority on the lakes, you have not been able to carry it into the enemies' terri- tory, notwithstanding your nilitiry success and now undoubted military superiority, and have not even cleared your own terri- tory of the enemy on the point of attack. You cannot, then, on any principle of equality in negotiation, claim a cession of territory excepting In exchange for other advantage, which you have in your power. I put out of the question the posse ,Mon • taken by Sir Job- Sherbrooke between the Penobscot and P as- sainaquoddy Bay. It isevidently only temporary and till a larger force will drive away the few companies he has left there; and an oflicer might as well claim the sovereignty of the ground on which his piquets stand or over which his patrols pass. Then if this reasoning be true, why stipulate for the «.': possidetis} You can get no territory; indeed, the state of your mllit.iry oper- ations, however creditable, docs not entitle you to demand any; and you only afford the .Vmerlcans a popular and creditable ground, which, I believe, their government are looking for, not to break off the negotiations, but to avoid to make peace. If you had territory, as I hope you soon will have New Orleans, I should prefer to insist upon the cession of that province as a I 5» THE UNITED STATES AND I separate article than upon the uti fo^sidetis as a principle of negotiation." ' • i-> i At t.le preliminary meeting of the. Commissioners, Ooul- burn, speaking for the British 'Commissioners, stated that -'it was thought proper in candor to state that in relation to the fisheries, although it was not intended to contest the right of the United States to them, yet so far as respected the concessions to land and dry fish within the exclusive jurisdiction of the British, it was proposed not to renew that without an equivalent." » At the next meeting Adams replied to this by stating that they had not expected to discuss the question of the fisheries as it was not one of the subjects ol difference iu which the war originated. The duty of drafting the articles relating to the boundaries and the fisheries was assigned to Gallatin. He drew up an article which recognized and confirmed the right of the Ameri- cans to fish in tntish waters and the British right to navigate the Mississippi. The American Commission was admirably composed for the encouragement of internecine strife and the war immed- iately commenced between Adams as the representative of the East and Clay as the representative of the West From this time on the genuine diplomatic powers of Gallatin were displayed, not in dealing with the British C..-r.-nissioners, for there he found comparatively clear sailing, but in preserving the semblance of peace between his colleagues. It seemed, to Adams, with some show of justice it must be confessed, that the remaining members of the Commission had organized for the purpose of irritating him. They found fault with all he wrote, until Russell, who could find no other cause for criticism, suggested that in the future he should "spell until with one 1." Adams gives the following interesting account of one of their meetings: "Mr. Gallatin said it was an extraordinary thing that the question of peace or war depended solely upon two points, 'm « Wellington Sup. Dc«p. vol. 9, p. 4^6; Castlereagh Corresp. 3d Seric*. vol. J. p. 186. THE NORTHEASTERN FISHERIES. 53 which the people of Massachusetts alone were interested — Moose Island, and the fisheries within British jurisdiction. «I said that was the very perfidious character of the British propositions. They wished to give us the appearances of having sacrificed^the interests of the Eastern section of the Union for those of the Western, to enable the disaffected in Massachusetts to say, the government of the United States has given up our territory and our fisheries merely to deprive the British of their right to navigate the Mississippi. "Mr. Russell said it was peculiarly unfortunate that the inter- ests thus contested were those of a disaffected part of the country. « Mr. Clay said he would do nothing to satisfy disaffection and treason, he would not yield anything for the sake of them. » But' said I, 'you would not give disaffection and treason the right to say to the people that their interests had been sacrificed?' "He said. No. But he was for a war three years longer. He had no doubt but three years more of war would make us a wariike people, and that then we should come out of the war with honor. Whereas at present, even upon the best terms we could : issibly obtain, we shall have only a half formed army, and half retrieve our military reputation. He was for playing brag with the British Plenipotentiaries; they had been playing brag with us throughout the whole negotiation; he thought it was time for us to begin to play brag with them. He asked me if I knew how to play brag. I had forgotten how. He said the art of it was to beat your adversary by holding your hand, with a solemn and confident phiz, and outbragging him. He appealed to Mr, Bayard if it was not. "'Ay,' said Bayard, 'but you may lose the game by brag- ging until the adversary sees the weakness of your hand.' And Bayard added to me, 'Mr. Clay is for bragging a million against a cent.' "I said the principle was the great thing which we could not concede; it was directly in the face of our instructions. We could not agree to it, and I was for saying so, positively, at once. Mr. Bayard said that there was nothing left in dispute but ihe principle. I did not think so. " • Mr. Ciay," said i,*Mip|«»irig r»ioo.-,c i:-;;i..u DCiuiioCvs •>•-• i^.;.:: tucky and had been for many years represented as a district in 'i'-V" m 54 THE UNITED STATES AND your Legislature, would you give it up as nothing? Mr. Bay&. ~, if it belonged to Delaware, would you ?' Bayard laughed and said that Delaware could not afford to give up territory. "■^Jr. Gallot.'is sa!d -t made no difference to what state it be- longed, it was to be defended precisely in the same manner, whether to one or to the other."' Adams and Clay could not agree as to the relative im- portance of t> e questions involved. Clay was the repre-' sentitive of the west, where the navigation of the Mississippi by the Bridsh was regarded as a rnstter of supreme importance. He was willing to barter the fishing rights if necessary, in order to secure the abandonment of this claim. But Adams, thfi representative of the east, the son of the man who had refused to sign the treaty of 1783 without a clause guaranteeing the fishery rights, as liaturally went 10 the other extreme. He thought the British right to navigate the Mississippi of no importance, but merely a matter in which the national pride was interested. But the fisheries were to him one of the most invaluable and inalienable of our privileges. Clay v/as not willing to concede the navigation of our most important river for "the mere liberty 01 drying fish upon a desert." " Mr. Clay lost his temper, as he generally does," writes Adams, " when- ever this right of the British to navigate the Mississippi is dis- cussed. He was utterly averse to admitting it as an equivalent for a stipulation securing the contested part of the fisheries. He said the more he heard of this (the right of fishing), the more convinced he was that it was of little or no value. He should be glad to get it if he could, but he was sure the British would not ultimately grant it. That the navigation of the Mississippi, on the other hand, was an object of immense im- portance and he could see no sort of reason for granting it as an equivalent for the fisheries."* When the commissioners came to a vote on Gallatin's pro- posed article. Clay and Russell opposed it and Gallatin, Adams and Bayard approved it. It was, therefore, voted to insert the nrti<~1«» in »Ki» nrniot CXav nrnffstintr that h«» wniilrl nnt Man. "^ ~ i — ; — «• i = "- = - ' Memoirs of J. Q. Adams, vol. 3, pp. ioi-3. * Memoirs of J. Q. Adams, vol. 3. p. 71. THE NORTHEASTERN FISHERIES. 55 On the following day, however, the question was re-consid- ered v^d Clay proposed that instead of inserting the article in the treaty, a paragraph should be inserted in the note which was to accompany it, suggesting the idea that the Commission- ers were not authorized to discuss the fisheries. While this would result in confirming the British right to navigate the Mississippi, Clay had a casuistic theory that this right would be valid only so far as it was independent of Louisana. Gallatin, who was inclined to think that the British had the argument on their side, hesitated, but finally, in the interest of harmony, accepted the amendment. Clay's compromise was adopted and the projet which was sent in on the loth of Novem- ber contained no reference to the fisheries. In the original instructions to the British Commissioners, dated July 28, it was stated that the provisions of the treaty of 1783, relating to the inshore fisheries had been the cause of so much inconvenience that the government had determined not to rerew them in their present form without an equivalent. In supplementary instructions, dated August 14,* it was declared that the free navigation of the Mississippi must be provided for. • Lord Bathurst seems to have instructed Goulbum, that the treaty could be concluded without noticing the fisheries, as the crown lawyers had given an opinion that the right had been terminated by the war. " Had we never mentioned the subject of the fisheries at all," wrote Goulburn, "I think fhat we might have argued the exclusion of the Americans from them on the general principle stated by Sir W. Scott and Sir C. Robinson; but having once brought forward the subject, hav- ing thus implied that we had (what Lord Castlereagh seemed really to have) a doubt of this principle; having received from the American plenipotentiaries a declaration of what they con- sider to be their right in this particular, and having left that declaration without an answer, I entirely concur in your opinion that we do practically admit the Americans to the fisheries as they enjoyed them before the war, and shall not, without a new --.... . .._ ,, ....... .... - .- ^^ - T -- - - T Dr. Adams and Lord Ganibier do not agree in this opinion. i>^:i I) ' Castlereagh Corresp., 3rd Series, vol. 3, p. S6. -g THE UNITED STATES AND You do us but justice in supposing that, without positive Instruc- tions we shall not admit any article in favor of the American fishery, even if any such should be brought forward by them ; indeed, we did not at all understand your letter, either public or private, as implying any such concession.'" On the 26th of November the Briti^-h counter-projet was delivered and contained no allusion to the fisheries or to Clay's paragraph in regard to the treaty of 1783, but it did con- tain a clause providing for the free navigation of the Mississippi by the British. This counter-projet was the Immediate cause of another quarrel between Clay and Adams, but it was at last decided to offer the navigatioii of the Mississippi for u^e fisheries. This was refused by the British Commlssionerr., who proposed to insert an article referring both subjects to a new commission to be appointed In the future. Adams was unwilling to ad- mit that the liberties granted by the treaty of 1783 were open to discussion, but Gallatin and the other commissioners fav- ored a qualified acceptance, subject .to the condition that the negotiations should apply to all differences not yet adjusted and involved the abandonment of no rights claimed by the United States in the fisheries. But it w:is found Impossible to draft an article which would be satisfactory. Goulburn wrote to Lord Bathurst: "I confess my own opinion to be that the question of the fisheries stood as well upon the result of the last conference as it can do upon any re- ply which they may make to our proposition of this day. The arguments which they used at the time will certainly be to be learnt only from the ex parte statements of the negotiators, but the fact of their having attempted to purchase the fisheries Is re- corded, ai d is an evidence (to say the least of it) that they doubt their right to enjoy them without a stipulation. If they receive our proposition, all will be well ; but if they reject it, they jnay derive from that rejection an argument against what we wish to deduce from the protocol."" But Gallatin's note neither accepted or rejected the offer, and Goulburn abandoned hope and wrote to Lord Bathurst > Adims' Life of Gallatin, p. 543- » Wellington Sup. Desp.,vQl. 9, p. 472 ; Adams' Life of Gallatin, pp. 544-5 THE NORTHEASTERN FISHKRIES. 57 suggestinjj that the treaty should be silent on the subject of the fisheries and the Mississippi.* The result of all was that on the 22nd of December the British Commissioners returned an an- swer stating that they were willing to withdraw their proposed article and allow the treaty to be silent on the subject. This was accordingly done and the treaty was duly signed on Christ- mas day, 1814. ' THE TREATY OF 1818. Immediately after the close of the war for Independence, the United States very generally adopted n policy having for its avowed object the expulsion of the loyalists from the country. The feeling against them was very bitter and many thousands left the country with the departing British armies. The result was that these people, instead of being allowed to become reconciled to the . anged condition of affairs, became the pio- neer population of new English provinces on the northeast shore. Very naturally the claims of the American fishermen were not viewed with favor by their old Tory enemies. As early as 1807 the colonies appealed to the British government for protection against the "agjjressions " of their American neighbors. In their jealous interest they employed a watchman who "sat in the log" and counted the vessels of the Yankee fishermen as they passed through the vStrait of Canso, counting in one day nine hundred thirty-eight. The prospective war between the United States and England was eagerly welcomed, for in that event ''won't Engl.uid whip the blasted rebels and shan't we all get our land> hack again?" It was believed that such a war would put an end to the American rights in thj fisheries as recognized in the Treaty of 1783. When the war actually came, "our banished countrymen" lost no time in presenting their memorials representing that the American fishermen cTro«H!y •«}»■••;:■!! fh^jr r~-'--'A- ^^- .„ ! i.t-_i sound policy required the cverl.isting exclusion of both F.ance and the United States from the fishing grounds. It was in- ' Wellington Sup. Denp., vol. 9, p. 479. 58 THE UNITED STATES AND sisteU that fifteen hundred American vessels had been engaged in the Labrador fisheries alone in a single seasv^n ; that these vessels carried and dealt out teas, coffee, and other artic!c8 on which no duty was paid; that these smuggler and interlopers exercised a ruinous influence upon the British fishery and the morals of British fishermen; that men, provisions and outfits were cheaper in the United States than elsewhere, and that in consequence British fishermen on the coast could buy what they needed on better terms of the American vessels than of the colonial merchants, for which reasons the merchants hoped that foreigners should no longer be permitted to visit the colonial waters for the purpose of fishing.' These representations caused m«ich excitement in New Eng- land, and were, by the Boston Centinal, pronounced " alarm- ingly interesting." The principles urged by the American Commissioners at Ghent were assumed to be unsound and in controvention of public law. The colonists clamored for "protection," until in 1815 Her Majesty's ship of war, Jasseur, commenced the seizure of American fishing vessels, and in one day no less than eight were sent into the port of Halifax as prizes. The B-itish charge d'affaires, in reply to Monroe's note of July 18, 1815, declared that the commander of the Jasseur had transcended his authority, and gave the assurance that proper orders would be issued to " prevent the recurrence of any similar interrup- tions." The seizures were, however, continued during the ne- gotiations at London. From the :ene of hi^ cuccessful labors at Ghent, Gallatin had gone to London and engaged in an attempt to penetrate the hide-bound commercial policy of Great Britain. Richard Rush, who was then minister at the court of St. James, was his colleague in these negotiations. A commer il convention was signed Julv 3, 1815, which was by its terms .0 expire in July, 18 18, and it was desirable that the two powers should arrive at a timely agreement for its renewal. TK- T' -.:*-.-' Sfatfs took advantage of this opportunity to open up e subjects left in an unsettled condition by the Treaty » Stbinc'* Report on the F'sherici, p. ii9- ^ THE NORTHEASTERN FISHERIES. 59 of Ghent — impressment, which Lord Castlereagh again de- clined to discuss, the boundaries, commercial intercourse with Canada and the West Indies, indemnity for slaves, and the northeastern fisheries. The British government was represented by Mi. Frederick Robinson, afterwards Lord Goderich, Earl Ripon, and Mr. Goulbum. Little was gained by this convention, but a com- Jjromise was affected on the question of the fisheries. In order to gain an express recognition of the permanent right it was found necessary to concede 11. rotations upon the practice. Of this compromise Gallatin wrote to Adams,' on the 6th of No- vember: " The right of taking and drying fish in harbors within the exclusive jurisdiction of Great Britain, particularly on coasts now inhabited, was extremely obnoxious to her, and was considered as what the French civilians call a servitude. And personal pride seems also to have been deeply committed, not perhaps the less because the argument had not been very abjv conducted on their part. I am satisfied that we could have obtained additional fishing ground in exchange for the words 'forever.' • • • Yet I will not conceal that this subject caused me more anxiety than any other branch of the negotia- tions, and that, after having participated in the Treaty of Ghent, it was a matter of regret to be obliged to sign an agreement which left the United States in any respect in a worse situation than before the war. • • • And if a compromise was to take place, the present time and the terms proposed appeared more eligible than the chance of future contingencies. • • ♦ With much reluctance I yielded to those considerations, rendered more powerful by our critical situation with Spain, and used my best endeavors to make the compromise on the most advanta- geous terms that could be obtainid." The convention was signed October 8, i8i8 and Article I provided that: Whereat differences hare arisen respecting the libe-ty claimed br the '-''•-■ -■'■~ Jr.nsnus.ili incicoi, i» Ukc, dry, and curr nsh on certain coa»ts, bajs, hnrbor* and creek*, of Mi* Britannic Majesty's do- minions in America, it is agreed between the high contracting parties that the inhabitant, of the sa>d Lnited .States shall have forever, in Con. men with the subjects of His Britannic Majoty.thc libort^ to take fish of ' Gallatm's Writings, vol. i, pp. 83,84. 6o THE UNITED STATES AND every kind o» that part of the southern coast of Newfoundland which r H from Cape Ray to the Rameau Islands; on the western and "itrcoTstf of Newfoundland from the said Cape Ray to the Quirpo. XdsTon he southern shores of the Magdalen I.land, and aUo on th. loits bays harbors andcreeke. from Mount Jolly, on the southern coast : L brX to and through the straits of Belle Islands, and thence northwardly indefinitely along the coast, without prejudice, however .o ;;rof the exclusive rights of the Hudson Bay Company; »nd that the Amer can fishermen shall have liberty forever to dry and cure fish in an; of the unsettled bays, harbors, and creeks of the -"^;- oartof the coast of Newfoundland hereinbefore described, and of the coast of Labrador; but so soon as the same or any part thereof, Tall be settled, it shall not be lawful for said fishermen to dry or cure fish at such portion so settled, without previous agreement for such pur- pose with thVinhabiUnts, proprietors, or possessors of the ground. And S^e United States hereby -enounces forever any liberty theretofore en- 5oy.d or claimed by the inhabitants thereof to uke. dry or cure, fish on or within three marine miles of anv of the coasts, bays, creeks or har- bor, of His Britannic Majesty's dominions in America not mcluded In the aLve mentioned limits. Provided, however, that the American fisher- men shall be permitted to enter such bays or harbors for the purpose of Thelter, and of repairing damages therein, of purchasing wood, and o^ ob- taining water, anS for no other purposes whatever. But they shall be un- der such restrictions as r. ay be necessary to P-^^V^^^'^J'^^^^;. ^es mg or curing fish therein, or in any other manner abusmg the privileges hereby secured to them. • ., , , .u„» The proviso, as at first drafted read : "Provided, however.that the American fishermen shall be permitted to enter such bays, and harbors ior the purpose only of obtaining shelter, wood,water and bait " In order to obtain as great an area for inshore fishing as possible the American Commissioners consented to omit the words "ind bait" thus sacrificing what has proved of greater importance. The treaty was made with reference to cod fish- ing, as the mackerel fishing was then of but slight importance. Soon after the signing of the treaty the Imperial Parham^nt enacted a statute to carry out its provisions.' This act provided that His Majesty in Council should make such regulations and givesuch instructions as might be deemed proper for cyrying into effect the treatv and declared that it shall not be lawful for any foreigners or foreign vessels^ fi sh for, or take, dry, or » Treaties and C^nVt^tior^ between United States and other Powers, p. 350. For protocols of co-^fercnces and report of Commissioners, sec Am. St. Pap (For. Rel.), vol. 4, p- 3S»; ^ol. 3, PP- T^S. 707. 73J-745- » ^9 Geo. Ill, c. 38. « \ ->i- V r- ^' -^'l ii tu ' THE NORTHEASTERN FISHERIES. 6l cure, ^sh within three marine miles of any coasts, bays, creeks, I or harbors, whatever, in any part of His Majesty»s dominion in American not included in the Umits of the treaty; and that if I any such foreign vessel, or any person on board thereof, shall be found fishing, or to have been fishing, or preparing to fish, within such distance of such coast, bays, creeks, or har- bor—outside of said limits, such vessels may be seized and con- demned; that it shall be lawful for United States fishermen to «nter bays, and harbors for the purpose of shelter, and for the purpose of purchasing wood and water, subject to such restric- tions as shall be prescribed by His Majesty in Council; that if any such persons after being required shall refuse to depart from such bay or harbor and shall refuse or neglect to conform to any such requirements he shall forfeit the sum of two hundred pounds. Such were the leading provisions of the Imperial Act. Be- tween the years 1818 and 1854 the Provincial Legislatures of Canada, Nova Scotia and New Brunswick passed various statutes purporting to be based on the treaty. They were more stringent and much more minute in their provbions than the Imperial Act' • ' Trouble soon grew out of the different interpretations of the treaty of 18 1 8. American vessels were seized while engaged in fishing in the Bay of Fundy when more than three miles from shore.* The United States government understood the phrase "three -arine miles from the coast" to mean from the coast following all its sinuosities. But the English government claimed that it was from a line drawn from headland to head- land. The American view was first advanced in 1824 when the « The AcU parsed by the provinces now constituting the Dominion o( Canada Hhirh were claimed to be merely declaratory of the Imperial Statute are : Dominion AcU, ,'«Vict. cap. 6 ; 33 Vict. cap. 16 ; now incorporated in Revised Sututes of i886, cap. 90. Nova Scotia Acts, Revised SUtutes, 3d series cap. 94, 29 Vict. (:d66), cap. 35- \J~.- i>»....^sl2>V Arts ;^ Vict. ^!!!£tV CS.O. 6q. Prince Edward Island AcU, 6 Vict. (1843), cap. 14. See H. R. Doc. No. 19, 49th Cong, and Sess., p. 29. « Pres. Monroe's Message, Feby. 23. '825, H. R. Doc. No. 408, i8 Cong, and Sess, Am. SUte Pap. (For Rel.), vol. 5, p. 735- 62 THE UNITED STATES AND United States complained of interference with the taking and curing of fish in the Day of Fundy and the seizure of vessels.' In February 1825 Mr. Addinjjton replied justifying such seizures on the ground that the Bay of Fundy was within the limits of the prohibition of the treaty. In 1S40 the President transmitted to ConoTCss various documents relating to the seizure of Ameri- can vesMls in Canadian waters during the year 1839. Among them was a letter from Lieut. Paine, an r.tficcr of the United States navy, dated December 29, 1839, in which the points at issue are stated as follows. "The Canadians apply the word •bays'* to all indents of the coast, and would refuse admission within lines drawn from one extreme headland to another, no matter how large an extent of water it included; while the Americans insisted that the Bays of Fundy, Chaleurs, Miri- michi, and some others are open to a line three miles from he concave shore.'' During the next three years an elaborate correspondence was conducted between the two governments. On the loth of July, 1839, Mr. Vail, Acting Secretary of State, complained to Mr. Fox, the British Minister, of seizures in the Bay of Fundy by the government vessel the Victory. In February 1 841 the Secretary of State, Mr. Forsyth, sent elaborate in- structions io Mr. Stevenson, the American Minister at the Court of St James, setting forth the claims of the Umted State-^ In the. following March, Stevenson brought the matter to the attention of Lord Palmerston,* bixt elicited no response other than a statement that the communication had been referred to the Secretary of State for Colonial affairs. A copy of the dispatch was sent to Lord Falkland, L ieutenant Governor of Nova Scotia, with the request that he investigate the allegations contained m it and report fully to Her Majesty's government. On the 28th of April Lord Falkland wrote to Lord John Russell: "The greatest anxiety is felt by the inhabi- tants of this province, that Lhe convention with the Americans > Message of Pres. Monroe, Feby. 26, 1825, H. Doc. No. 408, 18th Cong., 3d Sess; Am. St. Pap., (For. Rel.) vol. 5, p. 735- • » • t ..1--. ... I iiVn.,,,0 " ewe en«»i»rh««R of S*»n. Cass. Auf. %. • r ur Ilicai;2::jj ---l :::- -rr-.-i-j ....J.. -; - . .. -. 1853, Cong. Globe, (app.) vol. 25, p. 895, and of Sea. Ilamlln, of same date. Ibid. p. 900. • Ex. Doc. No. 100, 32d Cong.,;ist.Ses8., p. 113. THE NORTHEASIKRN KISHEKIES. 63 feigned at London on the .oth of October, .8,8, should be fst'ctly enforced; and it is hoped that the consulerat.on of the eport may induce your lordship to exert your mfluence u. such at. ner as to lead'to the augmentation of the force (a smgle veTsel) now engaged in protecting the fisheries on the Banks of N wf undlandrand the south shore of Labrador, and the em- ployment, in addition, of one or two steamers for that purpose In this letter was enclosed a copy of a report of a comm.ttee on the fisbe..ies of the House of Representatives of Nova Scot.a ' and a "case stated" for the purpose of obtaining the opm.on of the law officers of the Crown u. England. X Whether the treaty of 1783 was annulled by the var of r8i;, and whether citizens of the United States possess any right of fishery in the waters of the lower provinces other than ceded to them by the convention of x8i8; and ,^ so, what nght. 2 Have American citizens the right, under that Convention, to enter any of the bays of this province to take fish if, atter they have so entered, they prosecute the fishery rr^re than three marine miles from the shores of such bays; or should the pre- scribed distance of three marine miles be measured from the headlands, at the entrance of sucn bays, so as to exclude them? , Is the distance of three mavine miles to be computed from the indents of the coasts of British America, or from the ex- treme headlands, and what ; be considered a headland ? 4 Have American vessel itted out for a fishery, a right to pass through the Gut of Ca ..o, which they cannot do without coming within the prescribed limits, or to anchor there, or to fish there; an. is casting bait to lure fish in the track of the vessels, fishing, within the meaning of the Convention ? c: Have American citizens the right to land on the Magda- len Islands, and conduct the fishery from the shores thereof, by us.ng nets and seines,or what right of fishery do they possess on the shores of those islands, and what is meant by the term shore ? 6 Have American fishermen the right to enter the bays and harbors of this province for the purpose of purchasing wood or obtaining water, having provided neither of t^^^^J^''^'";;''* J^J^ commencement of their voyage In their uv.i: euuntry, <^r they the right only of entering such bays and harbors in cases of distress, or to purchase wood and obtain water after the usual •^^f 64 THE UNITfc-U STATES AND Stock Of these articles for the voyage of such fishing craft has ,o hedtizensof the United States of America and what re- served for the exch.sive enjoyment .f Br.t.sh subjects? These learned gentlemen, Sir John Dobson and S.r Thomas wLe al vered 'to the first query: "We have the honor to rlpor that we are of opinion that the treaty of 1783 was annulled by the war of 181.; and we are also of opm.on tha the rights of fishery of the citizens of the United States must now Reconsidered as defined and regulated by the convention of t8i8; and with respect to the general question 'if so, what tht?' we can only refer to the terms of the convent.on as ex- pfained and elucidated by the observations wh.ch wdl occur m answerine the other specific queries." T "Except „iU,i,>co,.»i..,l.n„ed limits, to wh.ch U,.- qt.ery pu 'to us aol not apply, wc are of opinion that, by the term ^"the treaty, American ca,.cn, are esch,dal fr,m, the r,gh. of fisWr^ within >hrec miles of the coast of British Amer.ca, and fha he prescribed distance of tltree nules is to be .measured rom the headlands or extreme points of land next / *= ' "^ J^^ have bef..,. mentioned, excluding the mtenor of the bays and inlets of the coasts. . ,.4 " By the treatv of .8.8 it is agreed that American cifzcns ,houM havithe libert'y of fislnng in the (=ulf ot St -awraKe, within ce.tain defined limits, in common w,.h "''^'^"^^ and such treaty doe, no. contain any words negat.v,, R the .Kh to navigate the passage of the «"'<'' <-""'"'.' '""' "'-;'2'I . may be conceded that such right ..f nav.gat.on .s not taken away by that convention; l)ut wc na^c ii>'« ..i»^- Sll Icred the cuu rsc of navigation to the (}ulf by Cape Hrcton, iin.i likewise the cai.acity and situation o f the 1 lassage of Canso, THE NORTHEASTERN FISHERIKS. 65 and of the British dominions on cither side, and we are of he IpLon that, independently o' r.aty, no forc.gn country has l^h ri"ht to use or navigate tl • . .age of Canso; and^attencW ne To" the terms of .he conve...on relating to the liberty of fishing to be enjoyed by the Americans, we are also of op.n.on fha that convention did not either expressly or by .mphcat.on ' cde any such right of using or navigatmg the pa^^nge m cue ion. We are also of opinion that casting ba.t to lure fish n'he track of any American vessels nav.gatmg the passage, would constitute a fishing within the negative terms of the con- ^ ''f '" With reference to the claim of a right to land on the Magdalen Islands, and to fish from the shores thereof it must b observed that by the treaty the liberty of drymg and cunng fish (purposes which could only be accomplished by landmg) :n any of the unsettled bays, &c., of the southern part of New- founlland and of the coast of Labrador, is ^Pe^'^^^^^^ P-'^rf for- but -uch liberty is distinctly negatived in rny se tied bay t' 1 it must therefore be inferred that if the liberty of laning on the shores of the Magdalen Islands nad been in- tended to be conceded, such an .mportant concession would have been the subject of express stipulation, and would neces- sarily have been accompanied with r description of the inland extent of the shore over which such liberty was to be exercised, and whether in settled or unsettled parts; but neither of these in-.portant particulars is provided for, even by implication; and that, among other considerations leads us to the concl.s.on that American citizens have no right to land or conduct the hshcry from the .hores of the Magdalen Islands. 1 he word^shore does not appear to be used in the convention in any other than the ee-eral or ordinary sense of the word, and must be con- strued wit:, reference to the liberty to be exercised upon .t and would therefor, comprise the land covered with water as far as could be available for the due enjoyment of the liberty granted. 6 "By the Convention the liberty of entering the bays and »,orLr, of Nova Scotia for the purpose of purchasnig wood .„A «Kt.,inin^ ^-ater is conceded in general term., unresir.clco I- 1 1: :»:.... ;» ».> v <»i Boston Courier, July 19, 1853. THE NORTHEASTERN FISHERIES. 7' led at the Department of State, reviewed the attitude of the Itish government and fully set forth the condition Oi the con- kersy. This paper attracted much attention, and on the 23rd fuly. Mason, as chairman of the Committee on Forei-n ^lations, offered a resolution requesting the President to commu- fate to the Senate, "if not incompatible with the public inter- 5, all the correspondence on tile in the Executive department the government of England, or the diplomatic representa- fes, ♦ * * and that the President be also requested t(j inform Senate whether any of the naval forces of the United States Ive been ordered to the seas adjacent to the British possessions of jrth America, to protect the rights of American fishermen, ier the convention, since the receipt of the intelligence that a rge and unusual British naval force has been ordered there to Iforce certain alleged rights of Great Britain under said con- fcntion." I An animated debate followed participated in by Mason, vard, Cass, Hamlin, and others,' The sending of a naval |rce to the fishing grounds during th e negotiatio ns was, said tr. Hamlin, "not hlriglri rre jibr less than to com pe l the United Itates to legislate under dures^£^_dnd to this he^ for one, was iwilling to submit.' Mr. Cass had never before heard of such roceedings as were now adopted by England. No matter what ie object of the force was, there was one thing certain, — the Lmerican people would not submit to surrender their rifhts. Che treaty was now thirty years old and it recognised clearly %t right of Americans to fish within three miles of any shore. Mr. Pratt thought that England did not want to negotiate )r she had sent a large force to execute her construction of the reaty. It was well known, said Mr. Seward, that any attempt drive our fishermen from these fisheries would involve the rhole country in a blaze of war. Mr. Rusk said that the object of the naval force was tobrinj.' Iboiit a reciprocity treaty and that the domineering spirit of -_!__.! -,;-.„L} .,_ 1-^ ^i_i i!.. '•p^..*'.^ wii^Ili ivJ fcJC (lid 1^1 Will U>Vt V* The resolution pasncd the senate on the ijrd of July and two lays later Daniel Webster, the Secretay of State, in 1 speech Seward's Works, vol. 1, p. 37J. 7^ THE UNITED STATICS AND , r rod .t his home in MarshfieUl, stated that the administra- ^" -^rithei riC of occupation. They should be protected "h I and' nes :nd bob and sinker." » And why should they "tT Thev Treavastnun^berwho are employed in that branch , ..rnrUe • ♦ * There are among you some, °L"": !»;"' veK^n on .he GranO Bank .or .o«y succ.- ^vev. There .hey have hung on .o .he ropes m s.orm ' d vvreek. The mos. important consequence, are mvolved m ?ht mltte Our fisheries have been the very nurser.es of our „ If onr fla..-ships have u,e. an,l conquered the enemy on :h ';», the fishenes a^e a. the bot.ont of i.. The flsherie^ were the seeds from which .hese glorious .riumphs were born and theseea,t ^ ^ ^he .reaty of tSlSwas made with the crown l^En^land If a fishing vessel is captured b, one of her ve». Uo. war and carried to a Br ish port for adju.lcat.on. the crown of England is answerable, ..nd then we .now whom we hav" .o deal with. But it is not to be expected ha. the Urn ed stltes will submit their right, to be adjudicated npon by the pir tribunals of .he provinces; or .ha. we *all allow our v!"els .o be seized on by cons.aWes or Cher pe..y officers, and rndlned by .he municipal cour.s of Quebec and Newfound- '"t at:ert:re':esoTuUr:t;'he SenatChe President trans- mitL"e"l Kcuments and stated that a frigate had been sen. to the fishing grounds -. for the purpose of pro.ec,,ng__.he r,gh.s of American fishermen under ll.e conven.,on of |8.3. The . eha.c was renewetl n, .he Sena.e soon after the pubh- cation . the correspondence when Sewar.l defended the Secre- lyo State from the charge of having conceded too n,uch,n hi. offical no.ive. Mr. -Seward said: - Now here ,s Mr. VV eb- ..er's 'ancua-e. Af.er .(uoring the treaty he says; " : 'dd"appear tha,, by a s,r:c> .ni ri.ii ccnUrua^cy/ ,kH art.:>. fishing vessels o_. .he Un.ted Mates are precluded from entering into tlu- bays,' &c- 1818 And in tne samt- ♦ It was C«M I 11^ s undoubtedly an :v,rs:ght in the convcnticn oj to mj.hr eir/; a CL>)i<:e :sinn to England. That is to say, it wjs an oversight to use language m that THE NORTHEAST£!'.N MSHERIES. 73 Invention which, by a strict and rigid construction, might be lade to yield the freedom of the great bays.'" ]The British government now practically ceased to enforce its Instruction, and the orders given to Sir Thomas Hardy in i8s2 kre merely to prevent the Americans from fishing within three liles of the shore. ^ In 1S52 a convention referred various claims to a commission |hich sat ir. London. Among these claims was one for indem Ity for the seizure of the Washington in the Bay of Fundv rhe commissioners disagreed, but the umpire, Mr. Joshua Bates' member of the great banking house of Baring Bros., decided at the Bay of Fundy was not a British bay within the meaning f the treaty and that it was open to the American fishermen ^ The Canadian fi,hermen found it difficult to contend ac.ain,t he Ar.Kncan .3 .tern of bounties^ and the right :. a free parti- pat.on m ihc American market became an object of prime im Jortance. Modification-, in the United States revenue laws were Ipposcd on the ground rhat the Canadian fish already monopo- Izcd the export trade,* but in January, .S53, the Lieutenant-Gov- Irnor of N ova Scotia was able to report to the assembly : ^ Vou HI be pleased to learn that the government of the United ftates has at length consented to negotiate on the subject of he.r commerc.al relations with the British Empire. I shall re D.ce.f these negotiations result in the opening of moreextended narkets for the productions of British Amenca, and the adiust- lert of questions on which the legislatures of all the provinces pave hitherto evinced a lively interest." ' Canadian writei7of the present time claim that WVh.^-r .~~: heirco,.truction of the Convention to be the 1 o^c See V "' Law Review, vol. n, p. 369. *• ^" American » This decision covered the whole ground and sus'a.ned th. v fconstruct„ , .. :.»v,„,i„„ „, ,8,3;p7,'^;:,y"'-'- " '""■' -""•. unJ" ,h.. .™;,:,t,r" ""'"•'"' "•• "■« '^"»'- ^>e-- "..„ ., ,^,, ^„ • Files of London Times, 1853-4. ♦ Wcb.ter's Works, vol. j, p. 467. 74 THE UXITPID oTATES AND THE RECIFROCITY TREATY OF 1854. " To deal in person is good," wrote Bacon, " wher a man's face breedcth regard, as cominonly with inferiors; or in tender cases where a man's eye upon the countenance of him who speaketh, may give him a liirection how far to go; and gener- ally when a man will reserve to himself liberty, either to avow or disavow." Lord Eldon, Governor-General of Canada, evidently believ- ing that the fishery controversy had now reached a point when it could with truth ' e called ' a tender case," came to Washing- ton in 1854 for the purpose of securing to Canadian fishermen that most desirable object — a Reciprocity Treaty. The counte- nance of his lordship must have been such as "breedeth regard," for in the course of a few weeks, and in spite of the excitement then prevailing over the "Nebraska Bill," he succeeded in bring- ing the negotiations to a successful termination. Eldon became very popular with the Americans, but this popularity served to rouse the suspicions of the people of the maritime provinces, who charged that the treaty had been "floated through on cham- pagne" and made a sharp but ineffectual oppositic i to its ratifica- tion.' This treaty was signed by Secretary Marcy on the part of the United States and by Lord Eldon acting as Minister Plenipotentiary on the part of Great Britain.' ' See Blackwood's Mag. for Aug., 18^6. » Treaty between Her Majesty and the United States of America rela- tive to Fisheries and to Commerce and Navigation, signed at Washington June 5, 1852. The following articles were admitted to either country free of duty: Grain, flour, and breadstuffs of ail kinds; animals of all kinds; fresh, ■moked and sailed meats; cotton- wool, seeds, and vegetables; undried fruits, dried fruits; fish of all kinds, products of nsh. and of all other creatures living in the water; poultry, eggs; hides, furs, skins, or tails. undresHed; stone or marble, m Its crude or un wrought state; slate, but- ter, cheese, tallow; lard, horns, manures; ores of metals of all kinds; coal; pitch, tar, turpentine, ashes; timber, and lumber of all kinds, round. THE NOHTHEASTER.V FI=IIERIES. 75 By the First Article, "It is agreed by the high contracting [parties, that, in addition to tne liberty secured to the United , States fishermen by the above mentioned Convention of Octo- 'ber 20, 1S18, of taking, curing, and drying fish on certain coasts ! of the British North American colonies therein defined, the in- habitants of the United States shall have, in common with the ' subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell fish,on the sea coasts and shores, and in the bays, harbors and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward Island, and of the several islands there- unto adjacent, without being restricted to any distance from the shore; with permission to land upon the coasts and shores of those colonies and the islands thereof, and also upon the Mag- dalen Islands, for the purpose of drying their nets and curing their fish; ■provided, that, in so doing, they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coast in their occupancy for the same purpose " By this treaty the American fishermen gained fishing rights an- alogous to thos_ enjoyed under the treaty of 1783, while the Can- adians obtained a market for their natural products free ot duty. Now commenced a period of unexampled prosperity for the Canadian fishery interests. The trade quaurupled and Ameri- can fishermen were now received ou the former inhospitable coasts with open arms. "From the making of the reciprocity treaty until its abrogation, Nova Scotia increased in wealth and prosperity at a most extra, linary rate; from its abrogation unnl the present, we have retrograded with the most frightful rapidity.'" hewed, and sawed; unmanufactured in whole or in part; firewood; pUn.«, shrubs, and trees; pelts, wool; fish oil; rice, broom corn, and bark; gyp- sum, ground or unground; hewn or wrought, or unwrought burr or grindstones; dye stuffs; flax, hemp, and tow, unmanufactured; unmanu- factured tobacco; rags. Treaties and Conventions between the United States and other Tuwcrs, pp. 3SJ-4; Am. atace Tap. (For. Rei.), vol. 5, p. 352; Philllmore'a Int. Law, vol. 3, p. 803. See Harper's Magazine, vol. 9, p. 674. ' Halifax Chronicle, 1869, quoted in Cape Ann "Advertiser," July 2, 1869. See "The Fishery Question," by Theodore S. Woolsey, North Am. Rev., March, i886. THE UNITED STATES AND But the American fishermen were not satisfied with thus con- tributing so materially towards buiidinjj up the business of their competitors at the expense of their own interests. It soon became evident that the loss of revenue irom the re- mission of duty on Canadian importat'-'ns far exceeded the value of the fishir^^ rights conceded to An erican fishermen. The Can'"'iap fishermen by reason of their proximity to the rishing ground and the cheapness of labor and material for building boats were enabled to compete with the Americans to such an ex- tent as to render their business unprofitable. The result was that in March, 1S65, the treaty was terminated In pursuance of notice given by the United States one year before.' All the old contentions were now renewed, but the British government did not insist upon a strict application of its construc- tion of the Treaty of 181S, upon which they were now thrown. Immediately upon the abrogation of the Reciprocity Treaty, the Secretary of State for the Colonies instructed the Lords of the Admiralty that it was not desired to exercise the right to ex- clude American vessels from the iay of Fundy at that time, and that the prohibition to enter British bays should not be in- sisted on except where there was reason to apprehend some sub- stantial invasion of British rights.' The Canadian government now resorted to the system of issuing licenses permitting the American fishermen to use the inshore waters. The fee for the first year was fixed at fifty cents per ton, for the second year at one dollar, and for the third year two dollars. But the im- portance of the inshore fishing to tne American fishermen had so decreased that after a trial of three years it was announced that no more licenses would be issued, — the plan having proved a failure. The following table, prepared by W. F. Whitcher, the Can- adian Commissioner 9f Fisheries, shows the amount of license fees, and the number and tonnage of American vessels availin themselves of the privilege.' ' Act of Cong., Jan. 18, 1865, U. S. Laws, "ol. 13, p. 566. » H. R. Ex. Doc. No. i, 41st Cong. 3rd Sf s. * Award of Halltax Commission, vol. i, p. 217. THE N'ORTIIEA^TEIIN FISIIEKIES. 77 Tonnage, i ^mouutof ' Uceaaa fee. 1866. Nova Scotia New Brunswick Quebec Prince Edw ard Islanf" 1867 Nova Scotia New Brunswick Quebec Prince Edward Island 18,779 $9.38950 26 1 13.00 5yj j 296.00 Si565-58 ' 3.339-35 ib68. Nova Scotia New Brunswick Quebec I'riiicv," Zd'.\;irJ liland 1869. Neva Scotia New Brtinswick Quebec Prince Edward Island 1,266.10 I 2,6i7.8s>i Licenses issued 1S66, 1S67, 1S6S and 1S69. Nova Scotia. 688 4 136 35.698 35 1.251 7.5^3-26 29,299.50 "II.OO New Brunswick I.6I4.00 6,250.87 Prince Edward Island Total 841 44.50726 37.»95-37 Upon the consolidation of tlie several provinces into the Do- minion of Canada the Canadian Parliament acquired jurisdiction over the sea coast fisheries. Various laws were passed, of \vhich there v.ere in force at the time ot the treaty of Washington the Dominion Act of May 22, 1S6S, and an amendment thereto of May 10, 1870. The principal provisions of the Act of 1S6S were: I. The Governor may grant iicenses to fish within three mfies of the coast. 2. Any one of a n- nber of specified officers may go on board of any vessel within any harbor of Canada, or hovering (in British waters) "ithin three marine miles of any ^ f" 7S THE UNITED STATES ANr» of the coasts, hays, creeks, or liarhors in Laiiada, and stay on board as long as she may remain within such place or distance. 3. If such vesse) shall he bound elsewhere and shall continue within such harbor or so hovering for twenty-four hours after it shall have been required to depart, the clliccr may bring her' into poll, search her cargo, and examine the master on oath touching her voyage and cargo; if the master do not truly an- swer the questions put to him, he shall forfeit four hundred dol- lars; if the vessel be foreign and have been found fishing, or preparing to fish, or to have been fishing, within th ee marine miles of any of the coasts, bays, creeks, or harbors of Canada not included within the above mentioned limits, without a license, the vessel, stores and cargo shall be forfeited. Provi- sion is then made for the proceedings upon seizure. The amendment of 1670 strikes out from the third section the provision allowing the \c-cl to remain within tlic harbor or hovering ioi iwcnty-fuui [anin, after n(itice to depart. Under these laws many American vessels have been .^ciiicd and confiscated. The grounds therefor as stated in a pamphlet published at Ottawa in 1S70,' and understood to be otHcia!, are as follows: 1. Fishing within the prescribed limits. 2. Anchoring or hovering within shore during calm weather without any ostensible cause, having on board ample supplies of wood and water. 3. Lying at anchor and remaining inside of bays to clean and pack fish. 4. Purchasing and bartering bait and preparing to fish. 5. Selling goods and buying supplies. 6. I.,anding and trans-shipping cargoe, of li'4i. Such were the claims of the Uritish Home and Colonial Gov- ernments as incorporated in st.itut( -, and instructions.'' m • Review of Prc^lJont (.rant's Mcosa},'e relating to Caniuli.ui Fisheries, Ottawa, 1S70, f. II. i"ur I'ri.i.icnt'-, Mo. age, ^.r H K\. J)()t:. No. jJ9,4i»t Cong., jnd -Soss, vol. xi. In tiiis M.-ssaj,-.- the Trfsiijent recommended that Congress grant to the Kxeciilixe power to suspend the operation ot the laws autliori/iui.; the tr.msit ,,( e"- 's jn boi'd atrt!-.'- !>-.;■ t !•.!!=■.! Sf-itei to Cnnad.i ' Am. Lavv Kev., vol. 5, ]> .jii. THE NORTHEASTEK.N IISHERIES. 79 THE TREATY OF WASHINGTON. On the 8th of January, 1S70, the Governor-General of Can- Bila issued an order " that henceforth all foreign fishermen shall be prevented from fishing in the waters of Canada." This was such a gross arid palpable violation of the treaty then in force Ithat, on May 31st, 1S70, the Secretary of State called the at- Itention of the British Minister to the illegal order and requested Jits mo'lification. The negotiations thus commenced resulted in ithe fishery articles of the treaty of 1S71, known as the treaty lof Washington. By Article XVIII of this treaty, Article I of Ithe Reciprocity Treaty of 1854 was revived with the stipula- jtion that it should exist for a term of ten years and for two [years after notice of its termination by either party. By Arti- cle II of the Treaty of 1854 British fishermen had been granted the right to fish in American waters down to the thirty-sixth parallel. By the Treaty of Washington this was extended to the thirty-ninth parallel. By Article XXI it was agreed that for the term of years stated, "Fish oil and fish of all kinds (ex- cept fish of the inland lakes and of the rivers falling into them, and except fish preserved in oil,) being the produce of the fisheries of the United States or of the Dominion of Can- ada, or of Prince Edward's Island, shall ho admitted into each country, respectively, free of duty."' During the negotiations that led to the Treaty of Wash- irieton, the United States offered one million of dollars for the inshore fisheries in perpetuity, rot because they were of that valut. but in order to .ivoid future inconvenience and .uinoyance. ' Tre.ities and Conventions between the United States and other Powers, p. 413. The Fishery .\rticle» of the Treatv of Washington are printed in full in the Froeeedings of the Halifax Coninil>^ion of 1S77, vol. !, p. XtV It was hoped that the Fnher^- question would be placed at rest bv this treaty. Caleb Cushlng wrote In 187.5, 'We have placed the quest!..' of the fishery on an iiidepc-ulent footin:,' • * • -ff,e fi^\■^. ^y qucslioi, i>> no more to be employed In the Doniniion of Can.id.i, n» It has been hcri • lofore, cither as a menace or a^* a lure, in the hope of fhu-. indiicinjj the L'niti'd St.ite-i to revive the reciprocitv ticatv." Cushitig's The Treatv 0' Washington, p. 246. .v* TICK UMTKD STATES AVD 1 he Bnt.sh Government .^-.rtinjr that the privilef^es ac- rnnlcd to the dti.cns of the United States were of greater value fh.m those accorded to the citizens of Great Britain, it was pro- VHlcd by Article XXII of the Treaty of Washington that a comm.ss.on should be appointed to determine the value of thr.cadd.t.onnlprivileges,-u having regard to the privileges accorded by the Un.ted States to the subjects of Her Britannic Majesty." hy Article XXIII .t was provided that one of the Commis- ,.aners .ould be appointed by the President of the United States .ne by Her Brit.,nnic Majesty, and the third by the Prcsulent of the United States ana Her Britannic Majesty con- jointly, and m case the third commissioner "shall not have been .p named within a period of three months from the date when th,« article shall take effect, then the third commissioner shall be named by the representative at London of His Majesty the Emperor of Austria and King of Hungary The fact that the United State,, was willing to leave the dunce of the third Commissioner to the representative of Aus- trin residing at London shows either carelessness on the part --f the Commissioners, or sublime faith in human nature. Only a few years had passed since an illustrious member of the House of Hapsburg had lost his life in Mexico through fHe support given the government of President Juarez by the United States. Thus to place the fate of the arbitration in the hands of one who presumably did not feel kindly t. ards the United States was to say the least, a mistake. Gr,; Britain recognized this fact and was swift to take adva. >, of it She deter- mined from the first that no third Co, .ssioner should be cho.cn within the three months and with this object in view re- sortc.! to all plausible means fur delaying the negotiations. he necessary legislation having been enacted for carrying the treaty into effect, Acting Secretary of State J. C. Bancroft Davis urote to Sir Edward Thornton, the British Minister, un- der date of July 7, ,873, that "the government of the United Stalen ,H wiirng to take the initiative and suggest to Her Ma- jesty h Government the names of a number of persons, each ,.„. o.wnnmwonm, ,n the opi,n„„ of the President he indiienced only by a he government of the Dominion strongly objects to the appointment of any of the for- eign ministers residing at Washington as a third Commissioner on the above mentioned Commission, and prefers to resort to the alternative, provided by the treaty; namely to leave the nomination to the Austrian Ambassador at London." It was now plain that the British Government had determined to "resort to the alternative." On the 6th of September Mr. Fish wrote to Sir Edward stating that as the treaty provided a means for selecting a third Commissioner, and as less than two thirds of the time had elapsed, he saw no reason to think they could not agree. "The reference in your note to the people and the Dominion of Canada seems to imply a practical transfer to that province of the rij^ht of nomination which the treaty gives to Her Majesty. The President is of tlic upitiion that a refusal on his part to make a nomination, or abstinence on his part from effort to concur in the conjoint nomination contemplated by the treaty, on the ground that some local interest (that tor instance of the fishermen of Gloucester), objected to the primary mode of filling the Commission intended by the treaty mij^ht well be THE NORTHEASTERN FISiri; i::s. 83 regarded by Her Majesty's Government as a departure from the letter and spirit of the treaty; and might justify it in remon- strating, and possibly in hesitating as to its future relations to a commission with respect to which he, as the head of the govern- ment, and to whom, in conjunction with its own sovereign, Great Britain had co..imitted the right of ^selecting a member, had delegated that right to an interesteo party, and had there- after abstained from effort at agreement in the mode of appoint- ment prescribed by the treaty." Sir Edward now claimed that some time previous he had verbally proposed to Mr. Fish, in a conversation held at the State Department, that the representatives of the United States and of Her Britannic Majesty at the Hague be authorized to se- lect "some Dutch gentleman" as the third Commissioner. But as Secretary Fish did not appear to consider the proposal as official, he now, on September 24th, renewed it. This propo- sition was declined by Secretary Fish on the ground that it was not the method provided for by the treaty which had received the constitutional assent of the Senate. Again, on the 3rd of October Mr. Fish addressed Sir Edward reviewing the entire correspondence, and quoting from a diary his memoranda of tho conversation about the Dutch gentleman. "I told him [Sir Edward Thornton] that I must frankly say that I con- sidered the proposition as one intended to be rejected in order to throw the appointment on the Austrian Ambassador at London." Secretary Fish also wrote in this letter: "The name of the Belgian Minister was omitted from the list, although the President felt entire confidence that the great intelligence and high cluaacter and inlegritv of Mr. Delfosse well fitted him for the position. The omission was designedly made in consc luence ot what had taken place in the Joint High Commission when the subject of the selection of arbitrators for the Geneva tribunal was under discussion. I find on referrin Pre9. Message, Jun- 17, 187H. Sen. Ex. Doc. No. 100, 4Stli Cong., and Sess, In response to Resoliition o£ May 27, 1S78. THE NOKTMi:.'.> , [.1{.\ FISHEKIES. 8« Halifax on the 5th of June, 1S77. The United States wa, rep- resented on the Commission by Hon. E. II. Kello"-o-, of Mass- achusetts, and Great Britain by Sir Alexander F. Gault, of Canada. Francis Clare Ford was the British agent and Dwi'^ht Foster, of Massachusetts, assisted by William II. Trescott, of South Carolina, and RicI-'^-rJ rl. Dana, Jr., of Massachusetts represented th .• United States. The case was elabora.ciy argued on both '-.ides. The United States contended that the duty of the Commission was limited, and that it w.i^ ciiarged with the decision of no political or diplomatic qu 'ens; that all such questions had been deter- mmed by the .nt ni','h Commission and that the Halifax Commission was for the -impL- purpose of an accounting- in order to determu a how •lU.^h more valuable, if any, the Cana- dian fisheries were to ti-ie citizens of the United States than the United States fisheries were to the citizens of Canada; that the value of the inshore fisheries was simply their value as ..ir.ck- erel fisheries and that to estimate one- fourth oT the entire mackerel catch as coming from within ihore v/as a libera! al- lowance and that the re: .ission of duty on fish a lU fish oil, a'dmittcd to be worth three hundred fifty thousand dollars a year, was an equivalent. "In presenting the British case," says Mr. Blame, "cv.-ry consideration was put forward by the clever mer ,ho repre- sented it, to magnify the cdi. cession made to the U .ted StUes. They dwelt at great length upon the thousands of m'Ics of coast thrown open t.. Americans; upon the fabulous wealth of the fisheries, where every one c; ught had, like ilie fish of 'he miracle in Scripture, a bit of money in its mouth; „p< <\ he Tact that the chief resource and \.iriety of fishing lay within tlie three mile limit. They nviiKiged to conceal the re.ii i-snc I>v a mass of statistics. "- The award was not made until tiie .'3rd of NOvcinlur, '*Sv^/, when, by a \ ote ui !\v(> to one, tl; Cuiiimissioni r^ >i<)n ^t•c Uv.use Ev. Doc. No. ^<), 4<;ih Cng., jnd ^c»s., J volumes, tran-iinlttei] whh 1'rei.iiknt's Ntess.i-c of M iv 17, 187S. A»tochar)(es of fr.uul in pnulucinj; evidence before tlie Comnu^sinn kit Hon, c Rep No 3:9, 4MI1 Con){ , Jnl Scs Ttu-c ch.irj;es were ni.uie against the British agent hv a C.uiadi.m expert. 86 rHK UMTKH STAIKS A*l> the UnitcJ Stato ua.^ to pay five niiUion five huiulrcd thousand dollars for the use of the fishi.ig privileges for twelve years. The decision produced profound astonishment in the United States. On the nth of March, 1S7S, Mr. Blaine moved a resolution in the Senate calling for the correspondence relating to the appointment of the third Commissioner. On the lyth^of May President Hayes sent the correspondence' to the Senate with a recommendation that Congress appropriate the sum necessary to pay the avvard, leaving its payment to the discretion of the Executive Department. The question was rcf'-.red to the Committee on Foreign Relations. On the ^Sth of May, Hannibal Hamlin, as Chairman, reported in favor of the payment of the avvard, but protested' against its justness and validity.' "Boards of arbitration, like judicial courts, are restrained in their judgments and awards by ihe jurisdiction that is conferred upon them. If an interna- . tional board of arbitration transcends its jurisdiction, and pro- ceeds in any respect u:ira vires, there is, of course, no appeal to interpose as a corrective except to that of the justice and honor of the nations interested. However .much, then, we may re- gard the award made at IFalifax as excessively exorbitanc, and possibly beyond the legal and proper powers of those making it, your committee would not recommend that the Government of the Uniied States disregard it, if the Government of Her Britannic Majesty, after a full review of all the facts and cir- cumstances of the case, shall conclude and declare the award to I e lawfully and honorably due. It the unfailing power of self-interest may be feared as a force tending to a.i opposing side, we must remember that in the other direction no nation is more vitally interested than Great Britain in unholding and maintaining the principle and practice of international arbitration; anil tqi- intelligence and virtue of the British statesman cannot fail to suggest that arbi- tration can only be retained as a fixed mode of adjusting iiit-rna- tional disputes by demonstrating its eiriciency as a rnethod of • «en. Ex. Doc. No. 44, 45fh Conp., ind Sesv ' Sen. Rep. No. 439, 45th (Jung., 2i\d Scss. THE NORTHEASTEKN KISHflRIES. 87 securing mutual justice, and thus assuring that mutual content, without 'vhich awards and verdicts are powerful only for mis- chief. In the spirit of this suggestsion your committee beg leave to call attention to several features of the award," The first of these "features" was the fact that the yward was made by two of the Commission when it should have been unanimous;' second, that the amount awarded was exorbitant. The customs receipts for the four lull years from 1873 to 1877^ showed that the United States had remitted duties on fish amount- ing to three hundred fifty thousand dollars a year, and that adding this to the award it was equivalent to almost ten mil- lion dollars for the use of the inshore fisheries for twelve years, while they were not worth more than twenty-five thcjusand dol- lars a yeai. Notwithstanding these facts the Committee recom- i It was undoubtedly the intention of the two nations that a unanimous award only should be accepted as valid. In advance oi tne organization of the Comnjission it was declared by M- Black, in the Dominion Par- liament, "that the amount of compensation that we would receive from our fisheries must be an amount unanimously agreed upon by the Com- missioners, and that, therefore, we must be willing to accept such com- pensation as the American Commissioner would be willing to concede to us, or we should receive nothing." On July 6, 1877, the London Times announced in th" most unqualified terms, that, "on every point that comes before it (the Commission) for discussion, the unanimous consent of all Us members is, by the ttrrns of the treaty, nec<:8sary before an authoritative vordict can be given." See article by Senator Edmunds, N. A. Rev., vol. 128, p. i. It seems to us that th- Halifax Award was illegal as being that of a majtrity only when the instrumen. of their appointment, considered in the light of all its parts, required u animity. Lord Salisbury cLimed his position to be based on the rules of Liternatlonal law, and cited Halleck as follows: "The following rul-s, usually derived from the civil law, have been ap- plied to international arbitration, when not otherwise provided in the articles of reference. If there be an uneven number the decision of the majority Is conclusive." Heffttr, the only writer cited by llalleck. states how and when such a rule is applied He says: (Bergson's Ed., translation of ird German Ed. LIvre dcuxieme, ch 1, sec. 109.) " Lorsquc plusieurs arbitres ont ^t< nommrfs, sans que leur fonction rc'ipcctlvt alent «5t6; vol. 37, pp. 278, 29J. THE NORTIIKASTERN FISHERIES. 89 tended that the treaty was made subject to such local kw. as affected all parties alike, but that, as a matter of international obligation, local laws at variance with the treaty should be re pealed. Secretary Evarts replied that such a rule would render the treaty rights useless and justify the renewal of the duty on fish. "This Government conceives that the fishery rigats of the United State., onceded by the Treaty of Washington, are to be exerased wh. free from the restraint and regulations of the statutes of N. ..diand,- and that for any provincial inva- s.ons of such : , Great Britain would be held responsible.' The Fortune Jay affair was settled by Great Britain paying to the United btates the sum of X 15,000 damages and thcadop tion of certain rules to prevent future trouble.' In pursuance of instructions from Congress'the President gave the required notice of the desire of the United States to ter minate the Fishery Articles of the Treaty of Washington, which consequently came to an end the ist of July, 1885.* f|| 1 TEMPORARY DIPLOMATIC ARRANGEMENT. The termination of the treaty fell in the midst of the fishing season and at the suggestion of the British Minister, Secretary iTrL ,7 "'° ' ''"''"''''' arrangement whereby the American fishermen were allowed the privileges of the treaty dunng the remainder of the season, with the understanding hi' he President should bring the question before Congress at it next session and recommend a joint Commission by the Gov ernmen.. of the United State, and G^eat Britain oconller Cong^'nTsc!."''"'"^'"' ""^ ''' '"*• "°"** ^^- ^oc. No. 84,46th 90 THr. UNITED STATES AND intercourse" between the two countries, " thus affording a pros- pect of negotiation for the development and extension of trade between the United States and British North America."' In his message of the 5th of December, 1885, President Cleveland, premising that "in the interests of good neighborhood and of the commercial intercourse of adjacent communities, the question of the North American Fisheries is one of much importance " recommended a commission "charged with the consideration and settlement, upon a just, equitable and honorable basis, of the entire question of the fishing rights of the two govern- ments."* But Congress did not approve of this method of procuring a surcease of sorrow for the fishermen. The fishermen them- selves petitioned Congress, earnestly protesting against a Com- mission and asserting that they were satisfied with the rights guaranteed them by the existing treaty. The country evidently did not want a Commission and the Senate by a vote of 35 to 10 passed a resolution declaring that.it was not advisable to sub- mit the question to a joint commission. tiiei^ PRESENT fATE OF THE QUESTION. The Act of 1868 for the protection of the fisheries even as amended in 1870, was not sufficient to give color of law to the enforcement of the terms of the treaty as understood by Can- ada. The vessel and cargo could be forfeited only on proof of the offense of fishing, or having been found to have fished, or preparing to fish, on the prohibited coasts. In order to supply this de^ciency and enable the authorities to forfeit the vessels and cargoes of the deep sea fishermen who entered under per- mits to "touch and trade," the Act of 1886 was passed.' « Agreement between the United States and Great Briuin respecting the Ssheries, concluded June 33, 1885, H. R. Ex. Doc. No. 19, 49th Cong., and bess., p. 199; Sen. Ex. Doc. No. 33,49th Cong., ist Sess.; Foreign Rel. U. S.. 1885, pp. 460, 469. > Foreign Relations U. S., 1885. * An Act to further amend the Act respecting fishing by foreign ves- •eU, 49 Vic, cap. IJ4; Reserved by the Governor-General on Wed- NORTHEASTERN FISHERIES. 9X vhe Dunr a course . ' — a ne / let Govern aenf- plicabilii r .^on of i8S6 the Canadian authoritier, pursued 'apted to lead to the end they so much desired, city treaty. Notwithstanding the t ict that th^' >* the United States en,phat:cally denied the ap- jcal customs regulations to the case of the fish- ermen pursuing their occujation under the protection of the treaty of 1818, the Canadians persisted in enforcing their con- struction of the treaty with reckless and uncalled for sever- ity; even to the extent of refusing to sell articles of food to the captain of an American tishing vessel who had exhausted his supply by rendering assistance to the starving crew of a nesday, June 2nd, 1886, for the signification of the Queen's pleasure; Royal assent given in council the 26th of November, i886; Prociaraa-* tion thereof made 24th of December, 1886. This Act provided that: "Whereas it is expedient for the more effectual protection of the Inshore fisheries of Canada against intrusion by foreigners, to further amend the act entitled 'An act respecting fishing by foreign vessels,' passed In the thirty-first jrear of Her Majesty's reign, and chapter 61 : Therefore, Her Majesty, hy and with the advise and consent ol the Senate and House of Commons of Canada, enacts as follows: I. The section substituted by thu- rst section of the act thirty-third Victoria, chapter ifi, entitled An act to amend the act respecUng filh- ing by foreign vessels,' for the third section of the hereinbefore recited act, is hereby repealed, and the following section subsUtuted in lieu thereof: 3. Any one of the oflScers or persons hereint '^re menUoned may bring any ship, vessel, or boat, being within any harbor )f Canada, or hovering in British waters, within three marine miles of any of the coasts, bays, creeks, or harbors in Canada, into port and search her c^rgo, and' mav also examine the master upon oath touch! r-g the cargo and voyage; and if the master or person in command does not truly answer the questions put to him in such examination, he shall incur a penalty of $400; and if such ship, vessel, or boat is foreign, or net navigated ac- cording to the laws of the United Kingdom or of Canada, and ^a) has been found fishing, or preparing to fish, or to have been fishing in Br' ish waters within three marine miles of any of th; -casts, bays, creeks, or harbors of Canada, not included within the above-mentioned limits, without a license, or after th- eznlration of the 'errr. na-v.pr! ?r. »h.- !si» license granted to such shl:\ vessel, or boat under the first section of this act, or, (b) has entered such waters for any purpose not permitted by treaty or co^venti'.n, or by any I- vs of the United Kingdom or Canada, for the time being tn force, such ship, vessel, or boat, and the tacLle, "■'ggJng, apparel, fu; nlture, stores, and cargo thereof shall be forfeited." 92 THE UNITED STATES AND wrecked Canadian boat. Many American vessels were seized, warned, or molested in such manner as to ' reak up their voy- ages and entail heavy loss upon the owners.' These seizures and the constant complaints of the fisliermen led to an elaborate correspondence between the two <^overn- rnents." In order to justify their acts, the Canadian aut°horities resort to a very strict and literal interpretation of the lan-ua-^e of the convention of i8iS, and assume the power tc enac" leg- islation for the purpose of construing a contract entered into by the Imperial Government, »'an assumption of jurisdiction entirely^unwarranted and which is wholly denied b- the United States."' They also deny to the fishing vessels any commercial privdeges, thus assuming the right to decide upon the efficacy of permits to "touch and trade," issued by properly qualified officials of the United States, on the ground that to allow fishing vessels to enter thf harbors under such permits would in cffec't operate as a repeal of the restrictive clauses of the treaty.* •For list of vessels see Sen. Rej.. No. 1683, ^h Cong., 2nd Sess.; H. R. Ex. Doc. No. 19, 49th Cong., 2nd Sess. List of New England vessels involved in controversv v^ith Canada, furnished bv Commissioner of Fish and Fisheries, Jan. 26, 18.S7, Sen. .Mis. Doc. S4, 49th Cong., 2nd bes8. Rev.seu list, Jan. 27, .8S7, Son. Ex. Doc. No. .5. 4"th Cong,. 2nd Sess.; H. R. Report No. 4087, 49th Cong., 2nd Sess.. Appendix C H. R. Ex. Doc. No. .9, 49th Cong.. 2nd Sess. Accompanying this correspondence will also be found the Cinadi.in Customs Acts' 47 Vic cap. 29, assented -o April ,9, ,884; 46 Vic, cap. -2. assented to M..v 25' 1883, and an analytical index for use of the customs officials. See'aKo' copy of the "Warning" signed by George E. Fisher, Minister of Marine and Fidheri..s. on page 39 of this document. » Mr. Bayard to Sir L. West, May 29, 18S6 ♦The Canadian contention is shown by thi tollowing official utterances: Or. June 5. 18S6. the Canadian minister of marine and fisheries declared ■ "It appears the Jennie and Julia is a vessel of .ibout 14 tons register that .he was to all intents and purposes a fishing vessel, and. at the time' of her entry into the port of Digby, had fishing gear and apparatus on board, and that the collector fully satisfied himself on these facts Ac- cording to the master's declaration, she was there to purchase fresh herring or.Iy, and wished to get t..em direct from the weir fishermen. The collector, upon his conviction that she was a fishing vessel and as su h debarred by the treaty of .8.8 from entering Canadian ports for the pur' po.e of trade, therefore. In the exercise of his plain duly, warned her off "The treaty of 1818 i. trpliclt lu iu terms, and by it United .Stat.. THE NORTHEASTERN FISHERIES. 93 The United States Government claims that the Treaty of l8iS related solely to the fishing rights of American vessels on the British North American coasts, ana that it in no way affects their commercial rights; that a vessel may b. fisher fishing vessels are allowed to enter Canadian ports for shelter, repairs, wood and water, and 'for no other purpose whatever.' "The undersigned is of the opinion that it cannot be successful!;- con tended that a bona fide fishing vessel can, by simply declaring her intention of purchasing fresh fish for other tlian baiting purposes, evade the provisions of the treaty of 1818, and obtain privileges not c'ontem- plated thereby. If that were admitted, the provisions of the treaty which excludes United States fishing vessels for all purposes but the four above mentioned would be rendered null and void, and the whole United Stales fishing fleet be at once lifted out of the category of fishing vessels, and allowed the free use of Canadian ports for baiting, obtaining supplies, and trans-shipping cargoes. " It appears to the undersigned that the question as to whether a vessel is a n.hing vessel or a legitimate trader or merchant vessel is one of fact and to be decided by the character of the vessel and the nature of her outfit, and that the class to which she belongs is not to be determined by the simple decoration of her master that he is not at anv given time acring in the character of a fisherman. "At the same time the undersigned begs again to observe that Canada has no desire to interru:n the long-established and legitimate . .mmercial intercourse with the United States, but rather to encourage and maintain It, and that Canadian p ,-ts are at present open to the uhole merchant navy cf the United States or, the .ame liberal conditions as heretofore accorded. " On June 7. -356, the Canadian fiovernor-Cien-rai advised the Minister of foreign af air.-, at London: -No attempt has been made either bv the authorities intr.st.-d with the enforcement cf the existing Uw or by the Parliament of the Domin- ion to iMte •-.■ u ith vessels engaged in bona fide commercial trans, upon the cu... f the Dominion. The tvo vessels %^hich h. .en »eued are both of them bevond uU question fi.hing .esseN r-d not traders, and therefore liable, subject to the fin ling of the courts, to any pen. , ^mpo^ed by law for the en.orcement of the cunve.itiur- ! ,3,8 on p xiet violating the tei r,is of that convention. * On June 14. kVS6. a committee of the p.iw counu. (..r Canada put forth the following opinions and conclusions, -rhich were appro- ed by 'h*- G ,vernor-Gcncral: " It is not, however, the case that the con.^.-„tio.i f 181S .fTect. 1 only th^ ln,hore fi»luri.-H of the British provinces; it was framed «ith the objrct of .-iffording a . .,n,plcte -nd exclusive uef.nl Ion of the rights ^nd ■.ic» v» men !i»turmen ol th United latis werethenc forward to 94 THE UNITED STATES AXD ^d yet be entitled to all the privileges of a trader/and th.t the language of the treaty should be liberally eonstrued Un the 26th of January, 1SS-7 Mr PN„i, men, con„p,„„s ol in ehosc ca.cs is .ha, c.isU g r^': , Lt hf' b een cons,rued wi,h_ a ,echnica, s,ric.„css a„3 enfo;:ea wi'h a for Intercourse .iih their people ItUtT f '"'^ Provinces, or - the scope of that conventfon t in :;e;::HT:h""'":-^''^^"^'°" °^ by which such access is denied excZ „ H ^^°*^ °'"^ Provisions purposes specifically described ^ '"'"' '■''1"'""« '' ^°- the " Such an undue expansion would, upon the other hand rertnj , . , place f, under cover of if* ,..^ • • , "'"*=r nand, certainly uke mission were accorded to United Sf^f*.. « k" '""'^^' P^""" .he h„bo„ o, ,He Do^^nL^r. t' ." .t^JZLT;:,''^';"''^ " vessel, or „, avoiding risk .o human UU. b,„ ,n o.i "o use ihl".'^" "The undersigned, therefore, cannot concur i. Mr K... a> tlon tha. 'to prevent the purchase of bait or J ,k ^ ' '°"''"- deep.,ea fishing, would be to expand he /'' ^' '"^'^'-^ "'^"^^'^ '°^ beyond the pufview, .cope Ld.nTent of th ?"'"" '° °''i-'^ -^o" y effect never contemplated • '"^^ ''''^^■' '^"'^ '° ^'^^ '° '' -" "Mr. Bajrard suggests that the possession by a fishing vessel of , mit to 'touch and trade' .hould give to her a ri, h "o ent' C T""' port, for other than the purposesL.ned in the tre.t or in o h ^ .hould give her pe.fect inlunit, from it. " Jio J" Th^ ^^rd'srate's^;:?' t * t^' -' ^'^ '^-'^- ^--- "-uL^ena;,:" United States collector of customs, by issuing a licence originally only Intended for purposes of domestic customs regulation to ^ive e..mnT from the treaty to every United States fishing vessel tZoIT^II that .imilar vessel, under the British fiag have t e Vll^ to n^ '." po.. of the United States for the purchL- of «;;.,• fL" ^1: When it I. remembered that the convention of .8.8 contained no restr Ic THE NORTHKASTKKN KISKEKXES. gC severity in cases of inadvertent and accidental violations whcic no harm was done, which is both unusual and unneccssarv, whereby the voyages pt the vessels have been broken up and penalties incurred. That the liberal and reasonable construc- tion of those laws that ha^ prevailed for many years, and *n which the fishermen have become accustomed, was chano-ed without any notice given, and that every opportunity of un- tion on British vessels and no renunciation of any privileges in regard to them." On August 14, 1886, the Minister of Marine and Fisheries said: "There seems no doubt, therefore, that the Novelty was in character and in purpose a fishing vessel, and as such comes under the provisions of the treaty of 1818, which allows United States fishing vessels to enter Canadian ports ' for the purpose of shelter and repairing damages therein, and of purchasing wood and of obtaining water, and for no other pur- pose whatever.' "The object of the captain was to ob^.i: - supplies for the osccution of his fishing, and to trans-ship his cargf .f fish at a Caiv.uian port, both of which are contrary to the letter anci spirit of the convention ci 181S." On October 30, 18S6, a committee of the Canadian privy council con- tended, and the administration of the government in council upheld the contention — "That the convention of iSiS, while it grants to United States fish- ermen the right of fishing in common with Briti-,h subjects on the shores of the Magdalen Islands, does not confer upon them privileges of trad- ing or of shipping men, and it was against possible acts of the latter ki.-:d, and not against fishing inshore, or seeking the rights of hospitality guaranteed under the treaty, that Captain Vacheni [McEachern] was warned by the collector." On November 24, 1S86, a committee of the Canadian privy council de- claicd, and the governor-general approved the declaration: "The minister of marine and fisheries, to whom said dispatch was re- ferred for early report, states that any foreign vessel, 'not manned nor equipped, nor in any way prepared for taking fish,' has full liberty of commercial intercourse in Canadian ports upon the same conditions as are applicable to regularly registered foreign merchant vessels; nor is any restriction imposed upon any foreign vessels dealing in fish of any kind different from those imposed upon foreign merchant vessels dealing in other commercial commodities. "That the regulations under which foreign vessels may trade at Canadian ports are contained in the customs l.-iws of Canada (a cop\ of which Is herewith), and which render it necessary, among other things, that upon arrival at any Canadian port a vessel must at once enter in- •'»! 96 THE UNITED STATES AND necessary interference with the American fishin.. vessels to »h prejud.ce and destruction of their business, had bt-en ai ^^^^^^^^^ On the 2nd of June, ,SS6, Mr. Phelps wrote to T nH Rosebery : » The question is not what is th. f ^ , ^ the words, but what is the cons'truction 1 '^''^ °^ dignity, theiust interests and thelri yTettir 7 1" '"' ereign powers."' ' relations of the sov. entTr'r"" h'" ^iI'T °''° "'''""' ^°' "^ "^hermen the nght ,„ en^er Cnad.on h.rbors for the purpose of selling and pl^rchn, ;: ^a^ ';r^:--r ','h tri '- "7 r ""'"'--• ;-r ""'^ '° - --=""oA3^ s' et cr.eC^ piiv deges as are permitted her own shipping ,„ ,he ports ofX Mr. Manning, Secretary of the Treasnrv ;^ .' i . lution of the House of RepresentaJr of D I' " '"" calling for an interpretation oh anff ?"'" ^^' ''^'' duties on fish, says: ^ ^"^'^ respecting the "^"•■•"g^he past summer, while American vessels re^ularlv ucj or tive millions against a communitv of sixtv millin,.! cation. „„ „, . , . ,,.. ,„„„^„. .;;-;;--; 'Z':X::^z:'^ article of e ,rt, , u ^"^ *""' '" ""■ ""ile ll.et.e„,,..nr.l Marnh in American Law Review. May-June i88' ' » Letter to House Committee on Foreign Affair* Feby c ;88- Fl R. Rept. No. 4087, 49tJ. Cong., jnd Sess. - ^«^b.v. 5. ^38,. H. THE NORTHEASTERN- FISHERIES. 97 leges of trading in Canadian ports, Canadian fishing vessel^ have been permitted freely to enter and use American port-, along the New England coast, have been protected by this De- partment in such entry and use, and have not been required to pay any other fees, charges, taxes, or dues than have been im- posed upon the vessels of other governments similarly situated. The hospitality elsewhere and generally extended in British ports to American commercial vessels has not been less, in qual- ity or quantity, as I am informed, than the hospitality extended to British vessels in American ports; but there is this marked difference, that, while this Department protects Canadian fish- ermen in the use of American ports the Dominion of Canada brutally excludes American t'shernien from Canadian ports. This denenden(je of port hospitality, a.; between this Govern- ment and the British Government, in respect to ves&els of either, is emphasized by the seventeenth section of the law of June 19, 18S6, empowering the President to suspend coiuniercial privi- leges to the vessels of any country denying the same to the United States vessels. That section is in harmony with a sec- tion in the British navigation law which authorizes the Queen, whenever British vessels are subject in any foreign country to pro- hibitions or restrictions to impose by order in council such pro- hibitions or restrictions upon the ships of such foreign country, either as to voyages in which they may engage or as to the ar- ticles which they may import into or export from any British possession in any part of the world, so as to place the <;hips of such country on as nearly as possible the same footing in Bili- ish ports as that on which British ships are placed in ports of such country." Admitting that the words "for no other purpose whatever" in the fishery clause of 1S18, rebut the idea that commercial privileges were to be granted to the United States, as at that time Great Britain had closed all her colonial ports to foreign vessels by law, it is claimed that she opened them in the same way by the proclamation of 1830, ^nd that they stand open un- til closed by law. "Since the proclamation (of 1830) the fishing vessels of Canada have enjoyed in the ports of the United States every privilege of commerce flowing from those pro- clamations. Not only did Canada know this, but a perverse dis- IMAGE EVALUATION TEST TARGET (MT-3) // W' ^My U. ms ^ 1.0 I.I !.25 1^1^ 12.5 •^ lis pi|2 2 j»^ 1^ Imlaa 1.4 1.6 — 6' <% /r ^ w Photographic Sciences Corpordtion 33 WIST MAIN STRItT WIBSTIR N Y UStO ( 7)6 1 S71 4)03 ^ .^■^^ \ ^ #> V ^ -. -^-Q ^.V- \ > ^' w %^ V 98 THE UNITED STATES AND position has induced her, while continuing in their unrestricted use and enjoyment, to endeavor to deprive our fishermen of their similar rights in Canada.'" In May, i8S6, Congress gave to the President power to suspend commercial relations with Canada, in addition to the power possessed since 1823, of discriminating against foreign vessels m the ports of the United State.. During the Second Session of the Forty-ninth Congress the indignation of the coun- try found expression in two bills looking towards retaliation. The one introduced in the House of Representatives' prohi- bited all commercial intercourse with Canada, by land or water, ^^ » The Senate would not agree to so radical a measure and proposed a bill intended to apply to that portion of our com- merce with Canada carried on in Canadian vessels. This bill was the occasion of a debate in the Senate in which some of the Senators, notably Senator Ingalls, took advantage of the oppor- tunity to refer to Great Britain in terms far from compliment- For several weeks the fishery question was the all-absorbing topic, and threats of war were freely made. The power thus vested in the President has not been exercised and negotiations have been continued looking to a settlement of the question by other means. But the reader who has followed the history of the controversy will not be inclined to attach too much credit to newspaper paragraphs stating that the "vexed fishery dis- pute IS on the point of being finally adjusted. The Canadian authorities have taken a position and seem inclined to defend to the end what they consider their rights ♦ Their cruisers' are guarding the fishery grounds, and col- Iisions with the fishermen are liable to take place at any time. Ihe United States has also sent a war vessel to the coast with instructions to watch over American interests. »l .Woodford In Am Law Review, Ma^-June, 1887 H. R. Rept. Nos. 36473648. 49th Cong , and Sess. Conpre..lonal Record. Jan. 25, ,8.87. pp. 98s. et »eq. Am. Law Rev., .Ma> June. 1887. The KortniuK.l„ p-^i. 000. Reprinted In Edectic. Ma>-, 1887. " ' American Magiiil.ie for June, 1887. \.f- — ». THE NOKTHfASTERN FISHERIES. 99 What was practically the Senate Bill passed both houses and received ths President's approval on the 3rd of March, 1887.' The enforcement of the provisions of this -.o-callei i fetaliatory law was left entirely in the discretion of the President, but as the admin' tration was pledged to the British Government to ' The full text of this important law is as follows: Be it enacted, &c., That whenever the President of the United States shall be satisfied that American nshing vesse'j or American fishermen, visiting O' being in the waters or at any ports or places of the BHtish aominions of North America, are or then lately have been denied or abridged in the enjoyment of any rights secured to them by treaty or law, or are or then lately have (been) unjustly vexed or harassed in the enjoyment of such rights or subjected to unreasonable restrictions, reg- ulations, or requirements in respect to such rights; or otherwise unjustly vexed or harassed in said waters, ports, or places; or whenever the President of the United States shall be satisfied that any such fishing ■ vessels or fishermen, having a permit under the 1j ■ s of the United States to touch and trade at any port or ports, place or places, In the British dominions of North America, are or then lately have been denied the privilege of entering such port or ports, place or places In the same manner and under the same regulations as may exist therein applicable to trading vessels of the most favored nation, or shall be unjustly vexed or harassed in respect thereof, or otherwise be unjustly vexed or har- assed therein, or shall be prevented from purchasing such supplies as may there be lawfully sold to trading vessels of the most favored nation; or whenever the President of the United States shall be satisfied that any other vessels of the United States, their masters or crews, so arriving at or being in such British waters, or ports, or places of the British domin- ions of North America, are or then lately have been denied any of the privileges therein accorded to the vessels, their mast.'.rs or crews, of the most favored nation, or unjustly vexed or harassed in respect of the same, or unjustly vexed or harassed therein by the authorities thereof, then, and in either or all of such cases, it shall be lawful, and it shall bs the duty of the President of the United States, In ills discretion, by pro- clamaticn to that effect, to deny vessels, their masters and crews, of the British dominions of North America, any entrance into the waters, ports, or places of, or within the United States (with such exceptions In regard to vessels in distress, stre:>!> ot weather, or needing supplies as to the President shall seem proper), whether such vessels shall have cone directly from said dominions on such destined voyage or by way of some port ur place '.n such destined voyage elsewhere; and also, to deny entry into any port or place of the United States of fresh fish or salt fish or any dominions to the United Slates. The Presia<;nt may. In his discretion, lOO THE UNITED STATES AND attempt to solve the questioriS by means of another Joint Com- mission, the President has not seen fit to infuse life into it. The British statesmen continued to urge the plan of a Commission until success again crowned their efiforts and a new Fishery Commission is announced to meet in Washington in the near future.' It is to be hoped that its labors, should they receive the sanction of the Senate will prove less prejudicial to the in- terests of the United States, than those :>i its predecessor. apply cuch proclamation to any part or to all of the foregoing named subjects, and may revoke, qualify, limit, and review such proclamation from time to time as he may deem necessary to the full and just execu- tion of the purposes of this act. Every violation of any such proclama- tion, or any part thereof, is hereby declared illegal, and all vessels and goods so corning or being within the waters, ports or places of the United States contrary to such proclamation shall be forfeired to the United States; and such forfeiture shall be enforced and proceeded upon In the same manner and with the same effect as in the case of vessels or goods whose importation or coming to or being in the waters or ports of the United States contrary to law may now be enforced and proceeded upon. Every person who shall violate any of the orovisions of this act, cr such proclamation of the President made in pursuance thereof, shall be oeemed guilty of a misdemean'>r, and, on conviction thereof, shall be punished by a fine not exceeding $i,ooo, or by imprisonment ^o: a term not exceeding two j^ears, or by both said punishments, in the discretion of the court Statutes of the U. S. of America, passed at the 2nd Sess., 49th Cong., 1886-87, PP- 475-6. > The members of the commission are Secretary Bayard, Pres Angell of the University of Michigan, and Mr. Putnam, of Maine, on the part of the United States, and Mr. Joseph Chamberlain, Sir Charles Tupper and Sir L. West, the British Minister, on the part of Great Britain. PART II THE TREATY OF i8t8 r* " Tliat palter with us In a double sense, That keep the word of promise to our ear, And J>reak It to our hope." Macbeth, Act v, Sec. vll. " ^"^ *»'* clings to the spirit and fraud to the letter of the convention." Phllllmore's Int. Lkw, vol. 3, p. 97. I IN GENERAL. by the Treaty of ,SiS ■ I„ V . '"""' '""^ ''"'""«' to ci.i„„s of .he VnlStul!;^,^Tjr,^'T^ *""'^ • »« -TATLS AND TREATY OF 1818. TiXE NORTHEASTERX fisiiEniEi '05 RULES OF CONSTRUCTION. 7 absurd we have n'o7;:";^,;-«Je„. and the c^^^^^^^^^^ -Iter or add to it by confecture T ^°"^ °'" ""'^^^-'^ it, to -d construed in accordanc " i'th T"'" ""^ ^« -^-P^e ed ;.?' ^^*^'-« " no superior power tn V "^ "P°" ^^^d faith H«PP'ly. .t has been found th^t ^ ? "" construing them of proceeding. Honest diplotlVv " " '!"' "^^^ P°''^- waT' on *he mere ground of e^Ten^ '" ""^'^^ Referable, even ^heirle^--^.^ ^ -^XZ:;;;!^^^^ ^-'-^^ '•" wJ:" ■ineir meaning." sav«rk„ •. ^ by the same rulet oT^s^"" '-3^^^' ---o be ascer^ «PPly to private contracts." "'^ '°""'^ of reasoning as WISHING RIGHTS OF AMERlCAV n •^•MtRICAN CITIZENS. • '^ THE DEEP SEA. deep sea arits'p!od"ucT'' ?£' ?.'^' ^°'"'"on use of the -T^^;;;;;^^— --^^ ff^J^c^been abandoned. Con,„,enUr,c, vo, ■V'^^'^^"'^'^ ^^i)- PP- .80. .8.. ^"ow the 2Z1] "*'"'" -"'ch .re ine^'h^u^Us/" '''' ^^"^ ' '«' i I- I lOO THE UNITED STATES AND But some difference of opinion still exists as to what waters are inclucfed in the open sea. The treaty of 1783 recognized the right of American fishermen "to take fish of any kind on the Grand Bank, and on all the other banks of Newfoundland, and in the Gulf of St. Lawrence," This was btit declaratory of the common international law as understood by Great Britain, as she has always distingr.ished between the "right" to fish on the banks, and the "liberty" of fishing in territorial waters. She is consequently estopped forever from closing the Gulf of St. Law- rence on the claim of exclusive jurisdiction over the land-locked seas. The Bay of Fundy was also, as we have seen, declared not to be a British bay by the decision in the cas * of the Wash- ington. Great Britain still adheres to the "headland theory" and as- sumes the right to exclusive jurisdiction over all gulfs and bays, regardless of size. The Three Mile Limit — Prior to the year 1818, the United States fishermen enjoyed the right to take fish of every kind at all places in the sea "whence the inhabitants of both countries used at any time heretofore to fish," but in order to obtain the insertion of the wonl " forever" in the Convention, the Ameri- can Commissioners consented to the restriction oi these rights on certain parts of the coast.' As the result of this compromise the United States "renounce any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on or within three marine miles of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included within the above mentioned limits." The question arose at an early period. Where shall this imagi- nary line be drawn? Shall it follow the shore, having respect to all its sinuosities and be drawn across the mouths of bays which are six miles or less in width, or shall it be drawn from fishery In the British sea* are — then all those convention* by which one or two nation* claim to themselves, and guarantee to each other, the ex- ..j„^. .--. - _. -- .-- the general rights of mnnkind." Pale^'s Moral und Political Phllonoph^, (ed. 18a I), p. 84 'Gallatin to J. Q. Adams. Gallatin's Writings, vol. j, p. Si . THE NORTHEASTERS P,S„ER,es. ,„- hMdIand to headland, thus excludin,, A ■ .. .'Unciosed waters *Lther i:l:^tof,t:;;'>r" "'-""'- '™- The cla™ has not ho^^^ \tV:^°' "V'' "'"" "''''^'- ' .870 Lord Granvi le tele, ^hd the r°™^ '"?'«' "P""- '" , »d«: "Her Males-.'. r„ "^ '^°*'^''""-*^"«"' o' Can- fisher^e",^^': be ;r n ' ''""" '""' "■' U"'"" S'^'« except w:,hi„ thre m le, ot lancl or' r""?" '""■ ^'*''"'' .hree .lies broad at ehrjol^"';?/^: "; ;'^,\7 '« «!- was stated as tollows: ..The riirht of r . o ? '''•"""° American fishermen from 1 ?"'"""""' """'•< co«. is unambiguous, and ITJv . """ """' °' *' .here appears to' be s^me do brwtrrt'he""","'"';"- ^'" •» within three miles of bays, erleks Th . ? " '''^""'"' l>«y Is less than six miles broduwiter, u' ''''"" " mil..- limit, and therefore cl .riv Z," Th! " "' """ trealv; but when i, ;. „, ^ " ''^° meaning of the -«; whether itTs " ay oTnef Br^ ""l'"- "« "-''- ions. This is a question whifh h ?" '^''""''' <'™i"- particular case wW. " .rit ^"^ • "" '"""""«' " "'•< When such a bav '/'?"''''>'''•""'"">"»' '^ws and usages. .h. America'n'fi^e™;: :: t^'e^S ''V/' "-"'^°"" wi.hin three mile, of the coas^ ' K '' , " ".''' '" " "«P' icty, dominion,., they wi 1 loTbernt ,ld I \7 "' ^" ^'■ miles of it: that is to sav :, ■ "''' "'"»" <•"« . line draw'n from'iradZd". : O::^:^"- '"^ ■""« of J^TsV::T:r it rce^riirrh""^ "'".■•" '^' ^^srsc^rt t^ T\r5f ^" - -- Co/ He said: u It do-s nJ ^"S'^-American Telegraph ____i^^o^^sj^ot^ear to their lordships that ' Memorandum from the P i ^ttle the limit, of the rl«h. of.!",.?.'!."..'!*^"''"* ' -°--"»'oa to ionh America; iJe»,(or.4l P«di -'/ vii II ' See p. 64 •upra. ' L. R. a App. C«». 394 (,87 •c". 7 to 19, vol. J, No. 4, 187 ic joasi 01 Mrltish 7) io8 THE UNITED STATES AND jurists and text writers are agreed what are the rules as to dimensions and configurations, which, apart from other con- siderations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts; and it has never, that they can find, been made the ground of any judicial interpretation." But the court held that the Bay of Conception, on the east coast of Newfoundland, was a British Bay, and said in reference to the Convention of 1818, "It seerfis impossible to doubt that this convention applied to all bays, whether large or small on that coast." The United States claims exclusive jurisdiction over the Ches- apeake and Delaware Bays,' and in 1793 the English ship Grange, captured by a French vessel, was restored on the ground that the Delaware Bay was neutral water.' The claim of Great Britain to exclusive jurisdiction over any portion of the deep sea was denied by a decision of one of her courts in 1876,* and of her claim of jurisdiction over the "QueenV Chamber" a late English writer on International law says, ** England would no doubt not attempt any longer to assert a right of property over the Queen's Chan.ber, which includes the waters within lines drawn from headland to headland, * • * but some writers seem to admit that they belong to her, and a recent decision of the Privy Council has affirmed her jur- isdiction over the Bay of Conception, in Newfoundland, which penetrates forty miles into the land and is fifteen miles in mean breadth."* "The impossibility of property in the sea" says Ortolan,' "re- > Stetson vs. United States, (Ct. of A.la. Claim), 33 Alb. L. J., 483. • Am. St. Papers, vol. i, p. 73. » Queen vs. Keyn, L. R. 3 Exch., Div. 63. The opinions of the differ- ent judges in this case contain almost all the learning, ancient and mod- en. English, American, and Continental, on the extent of territorial waters and jurisdiction over them. • Hall's Int. Law, p. 138. The maritime supremacy claimed by Creat Britain over the narrow seas has been asserted by requiring certain honors to the British flag, which have been rendered or refused accord- l-._ »— _!-...._.... TU_ -1_! 1»._1< I • .. . . »"B ••■^ vsivuiriT-ia-,:-.^-. 1 ::c via:::: i-.=c:: :ias xicvcr uccn SSnciioriCu DjT general acquiescence. Wheaton's Int. Law, (Dana) § 181 ; Whcaton's Hist. Law of Nations, pp. 154, 157; Edinburgh Review, vol. il, pp. 17, 19. • Diplomatic de le Mer, Lib. 2, c. 7. THE NORTHEASTERN- FISHERIES. 109 suit, from the physical nature of the elements, which cannot be possessed and which serve as the essential means of communica- tion between men. The impossibility of empire over tne sea results from the equality of rights and the reciprocal indepen- dence of nations." ^ The position of the United States is stated by Secretary Bay- ard as follows: ^ ^ "We may, theref regard it as settled, that so far as con- cerns the eastern c - of North America, the position of this department has uniformly been that the sovereignty of the shore does not so far as territorial authority is concerned, evtend beyond three miles from low water mark, and that the seaward boundary of the zone of territorial waters follows the coast of the mainland, extending where there are islands so as to place around such islands the same belt. This necessarily excludes the position that the seaward boundary is to be drawn from headland to headland, and makes it follow closely, at a distance , vol i,(For. Rel.) P- '83; J. Q. .Vdams' Memoirs, vol. 1, p. 376; \Veb>ter\ Works, vol. 6. p. 306; Wharton', Conflict of Laws, § Js""'; Dana\ note to Wheaton's Int. L«w, § 179, Fields' Int. Code, 2nd Ed., § :S. Church vs. Hubbard, 2 Cranch (U. S.), 187. Islands adjacent to the mainland are considered as appurtenfnt unless some other power h.iN obt, lined title to them : The Anna, Robinson'* .\din. Rep., 38s; Halleck', Int L.nv, p. iji. » B^nkershoek, De Dominio Mart,, c. 3; Valin, Comn.cnt.irie »ur r Ordonance 'dc 1681, liv. v tit. i. cr. .-tid* for a line bo>ond .oundinj,'H; Vattel, Lib. I, ch. ^3, § iS.;; IV Martoi,. Prtcis, § 153. Lord Sfowcll in The Twee Gebroeders, 3 R,,b , 3 v>, p iced the limit at a cannon shot or a marine league. Grotius extends territorial rights over as much of the tea as can be defended from the >hore: Lib. 1 1, cap. 3, ^ 13, 14. Rav- neval, Instit liv. ji, ch. .;. (^ 10, thought the hori/on u.i> the boundar'v. Casareges De Commerce Disc I. i3(,. >avs i.r» mik-s Galiani and .N.'iinl regarded the question as open to be settled b_v treaty. Also sec Ilall't Int. Law, p. 123. "The treaties between Enjjlnni' and the I'nited Statta of l8l8, and between Englan.fand Kr.ince ..f jiid ,\iij.'u-t, 183.,, settle the (C marine Kaifue-. Tlw F.nyli«h Act, iKiie a-, the limit of jui Kilitlioii over the ^cas." iiniKii 01 exclusive tisfierv ut thr 1833, a^Mumes the marine le Wheaton'* E lem Int. L.\w, p. J56, Oana'> iioti 113 THE LXITED STATES AND her sway over ;,I1 ^.Ifs an,I bays whatever their sue. The one wnter above referred to, IVaili.uore, who seems to sustain the Bnfsh claun, says: -Besides tne rights of property and juris- diction wth.n the Umit of cannon shot from ti: . '^ore, there are certain portions of the sea which, though the) , ,d this veree may under special circumstances, be nrescribeu lor. Maritime terntona r.ght. extend, as a general rule, over arms of the sea, oays, gulfs, estuaries, which are enclosed but not entirely surrounded by lands belonging to one and the same State. V/.th respect to bays and gulfs so enclosed, there seems to be no reason or authority for a limitation suggested by Martens. Thus Great Bntam has immemorially claimed and exercised property and junsdictzon over the bays or portions of seas cut de^(' ' r^'rV'""°"'P''°'"°"^°^^^°^"°^her, and called tlie 'King's Chamber.' " ' This limitation, discarded by Phillimore, is supported by an almost unbroken line of authorities. Sir Travers Twiss, a late ^n.M.sh writer, thus describes what he calls jurisdictional waters. After stating that hostilities cannot be carried on within a certain distance of a neutral shore he says: "This distance is held to extend as far as the safety of a nation renders it necessary, .nd Its power is adequate to assert it; and as that distance can- not with convenience to the nations, be variable, depending on he presence or absence of an armed fleet, it is by praclice fden- tified with that distance over which a nation can co->^mand obedience to its empire by the fire of its cannon. That distance IS, by consent, taken to be a maritime leajrue seaward along all the coasts of a nation. Beyond the distance of a sea lea<.ue from Its coasts, the territorial laws of a nation are, strictly speak- ing, not operative." The waters whi.h he prefers to call •>terrilori.,l" he thus de- scribes: "If a sea is entirely closed by tiie territory of a nation, and has n„ other communication with the ocean than by a chan- nel of which that nation ma, take possession, it appears that such a se . .s no less capable of being occupied and becumi.,.. property than ,I,c land. In the san.e manner a bav of the sea^, thejdmres of which are the territory of one and the same na- 'Co ifn rTi«>n f '1 rJ . ■ \jt*%ti t^a « « 'i- i. ch a, I :> iu. I THE NORTKKASTEU.N FISHERIES. , tion andof which t!ie entrance may be effectuV'v H.f . , WlWman ,a,.s .ha. ...ha s.a Within gunsho, „ ^ '•f'^"'"''' cupi«i b, ,he occupation of .he coaf. "^ l',: .e'':, ':r'..Wh"- - Xrat:x ;;:i'::;^-r i-i'fr- width of rivers nr m. ^ u, exceed the ordinary "iM ui nvers, or the dcable ranee of cannon a..*i-- j wh.reco„„-„„ou, possession ends, where he 2l M "" -ch .„..: -taX-^ro/ :ir;os:X'tri: und is, .he.e,„.e, .he ..j. o/L: ,^'1" st" Th:";:.^:; «iv>.iv nroken by bays, cau.s ..fr rf fi, t.me dominion must always be mc. ure / """■" these points of the shore Jr. n '"'"'"'^^ ^'^"> ^^^^--^ «"«^ of h. fiT f : ^°'^^' J^'^'--'^ '"'-"""vemencc would result It has therefore, been agreed in p.ctice, to dr..w an inn n.rv hne from one promontory to anotl,cr and tc tai the li cl , . Law o( Nati ions, vol. I, ch.x,§§, 7,-177. ■aw, vol. I. r> » Institutes of Int. L Free.* du Droit de. Ciens. §^0. (Kd. iSr,^y ' Droit* et De voiri dcH Nations Neut ro^. I'o'o. i. tit. I. ch. J,g,. 114 THE UNITED STATES AND adopted by almost all nations, is anly applicable to small bays, and not to those of great extent which are in reality parts of the open sea and of which it is impossible to deny the complete as- similation with the great ocean."* Kliiber says,' "To the territory of a state belong those mari- time districts ana regions susceptible of exclusive possession. In this number are the parts of the ocean which extend within the continental territory of a nation, if they can be commanded by cannon from the two banks, or if their entrance only can be closed or defended against vessels.'' * And Ortojan says :» "^\ e should range upon the same line ,as ports and roads, gulfs and bays, and all indentations known by other names when these in- dentaticns made in the lands of the same state do not exceed in breadth the double range of cannon* or when the entrance can be governed by artillery, or when it is naturally defended by islands, banks, or rocks. In all these cases we can truly say that the gulfs or bays are in the power of the nation which is mistress of the territory si rounding them." Baro de Cussy examines the subject at great length and after referring to many authorities says,' "Sovereignty over the terri- torial waters of the sea reaches as far as the range of cannon fired from the shore. The sovereignty also extends to maritime districis and regions, such as road=, bays, and straits, whose en- trance and exit can bt defended ty cannon. ♦ • ♦ AUb.iys and 'traits, however, cannot belong through their entire surface and extent to the territorial sea of the State whose shores they wash. The sovereignty of the State over large bays and straits is limited to the distance which has been indicated in the preced- ing rule." "Common usnge,"* says Ileffter, "has established the range of cannon as the distai ce within which it is not lawful to tres- pass, a line of limit which not only obtained the suffrages of Grotius, . f Bynkershoek, of Galiana, of Kluber, but has been adopted by the laws of many nations. ♦ « • If the strip » Droit des Gens. § 130 (Ed. 1861). » Diplomatic de la Mor, vol. I, p. I4S- * > Pr^c!§ du Droit Maritime des Nations, \<)l. i, lit. J, §§ 40, 41. « Droit International Public, § 75- 7^ (Ed. il^), Bcrgvon.) * The italic* are mine. THE NORTHEASTKRN FISHERIES. 115 of sea which washes the coast is considered as belonging to the contiguous state, it follows, for even a stronger reason, that waters connected with this portion of the sea ought to be under the dominion of the neij^hboring State, which is able to guard them, to defend the approaches to them, and to hold them under its exclusive control. Such are the ports and harbors which form a means of access to the territory. Some nation*, as much by an extension of their rights as for other reasons, have arro- gated to themselves a kind of dominion, or at best exclusive use, over certain pc'tions of the high seas. Thus in England they include within the dominion of the State, under the name of the King's Chamber, the bays situated between two prom- ontories."' Thus we fin«l the position assumed by Great Britain sustained by only one English text writer "All other modern jurists of authority agree both in the gciieral principle and its application to the particular case. Such unanimity exists only btcause the principle itself is not arbitrary, but is founded upon the essential nature and necessary elements of territorial property and do- minion. "J The moderr rnle which limits the territorial g-bt to the dis- tance of a cannon shot, or three marine miles from the shore, comes from Bynkershoek. Thus a nation claiming jurisdiction over its marginal waters is enalled as the first condition of valid appropriation to defend and protect it from the shore, by means of artillery. At the time when the rule became fixed in inter- national law, three marine mile^ was the ordinary range of the cannon in use. This is, of course now greatly extended, but the increased power and effectiveness of modern artillery has not as yet been taken into consideration. Bluntschli' states that the three marine miles aie too narrow, and in 1864 the United States suggested to England that the limit should be five miles. Fiore • The treaty *'etween France and Great Britain dated August 31 d, 1839, provides that the subjects of each pov er shall enjoy the right of fishing within three miles of low water mark, and that in the case of bays of which the opening shiiH not exceed three miles, this distance shall be Law of Nations, vol. i, c. x. § 182. * Am. Law Review, vol. v, p. 406. * Law of Nations, book 4, § 30J. ii6 THE UNITED STATES AXD says* that "la zone do jurisdiction pourrait s'^trcndre i propor- tion des perfectionnement des moyens d'artillerie/' That the position taken by the United States on this question and so ably defended by her statesmen, is based upon sound principles of international law, is evident to any one who ap- proaches the subject free from preconceived theories and na- tional sympathy. That 3uch is f.he generally accepted rule of law, is beyond'dispute, but, in view of the increased range and efficiency of modern artillery and oth.-r engines of offensive and defensive warfare, it is reasonable to suppose that at some time in the near future the limit will be extended. But the words used in the treaty now under consideration are "three marine miles" from the shore and no such new rule can be adopted and engrafted on the treaty by the mere will of one of the contract- ing parties. In the language of a learned Engli.. judge,' "we must as- sume that it [the treaty of 1818] was drawn by able men and ratifi-. i by the governments of two great powers, who knew per.«;ectly well what they wers. respectively gaining or conceding, and took care to express what they meant." We must also assume that these able men were cognizant of the rules of international lav/, and we learn from the testimony of one of the Commissioners that they believed that the United States retained for its citizens "the right of fishing in the sea, whether called a bay, gulf, or by whatever term designated, that washed any part of the coast of the British North Ameri- can provinces, with the simple exception that we did not come within a marine league of the shore." It is generally admitted that whenever under the law of na-. tion, any part of the sea is free for navigation it is also free for fishing. Prior to the treaty the American fishermen in com- mon with those of all other nations could fish within three miles of the shore, and by the treaty no restrictions arc placed upon this na^-iral right. , r • In terrUorial waters: It is expressly provided that the Ameri- • Vol. I, p. 373- « Young's Aiiiii. iJcC. p. loo. « See p. 66, supra. THE NORTHEASTEKN FISHEHIES. 117 can fishormen shall have forever in common with the subjects of Great Britain the liberty of taking .'sh of any kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameai' Islands and on the western and northern coasts of Newfoundland from said* Cipe Ray to the Quirpon Islands; on the southern shores' of the Magdalen Is- lands, on the coasts, bays, harbors and creeks Tom Mount Joly ©n the southern shores of Labrador to and through the straits of Belle Isle and thence northwardly ind litely along the coast. "And the United States hereby renounces forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry or cure fish on or within three marine miles- of any of the coasts, bays, creeks or harbors of His Britannic Majesty's dominions in America not included in the above mentioned limits." RIGHT TO ENTER HARBORS ANu BAYS FOR PURPOSES OTHER THAN ISHING. TO TRY AND CURE FISH. The American fishermen have the right forever to dry and cure fish in any of the unsettled bays, harbors, and creeks in "^he southern part of Newfoundland from Cape Ray to the R: u Islands, and of the coasts of Labrador, while the same renuuiis unsettled; but in any portion so settled it is necessary to obtain previous permission from the inhabitants, proprietors or posses- of the ground. > The word shore is used here instead of coast as elsewhere. Shore has a definite legal meaning, and describes that part of the riparian soil which lies between high-water and low-wa*e»' and which is covered bj the ebb aud flow of the tide. The fishermen n.ay use the shores when exposed. See Angell on Tide Waters, pp. 33-35. iiS THE UNITED STATES A NO FOR THE PURPOSE OK OUTAIMNG WOOD AND WATER AND FOR bJIELTER. It .ly ided that the Ar IS expressly provided tnat tne American fishermen shall be permitted to enter all bays and harbors for the purpose ol shel- ter, of repairing damages, of purchasing wood, and obtaining water, "and for no other purpose whatever." But they are to be under such restrictions as shall be necessary to prevent their taking, drying, or curing fish thei ,in, or in any other manner abusing the privileges secured to them. These privileges are expressly gram d, and all others claimed must be either implied in them, or based upon the theory that the United States possesses all rights not expressly renounced, or upon the comity of nations, or as commercial privileges Soon after the ratification of the treaty a controversy arose over the construction of the clause allowing the fishermen the right to enter bays and harbors for the purpose of shelter. The Provincial authorities gave this clause. a very narrow and inhos- pitable construction, limiting it to vessels in actual distress, while the United States fish rmen claimed, very reasonably, that they were entitled to enter tiie poi:> for shelter whenever, by reason of rough weather, fogs, or calms, it was impossible or inconvenient to pursue their labors outside. The evident rea- sonableness and justice of this construction of the language o^ the treaty is a sufficient reason for its adoption by anyone not controlled by a desire to harass and annoy. An attempt was also made to limit the exercise of the right to enter for the purpose of obtaining wood and water to in- stances in which the supply brought from the ht)me ports had become exhausted. This was one of the questions submitted by the Legislature of Nova Scotia to the Law otTicer^ of the Crown in 1841 ' and it was by them given a more liberal construction. "By the convention the liberty of entering the bays and har- bors of Nova Scotia for the purpose of obtainiii<^ wood and water is conceded in general terms, unlimited -by any rcstrict- ' • See p. 65, THE NUi; rilKASTF-liX FISHKKIK>. 119 ions express or implied, Hni'tiiig the enjo\ nicnt to vessels duly provided with these articles at the commencement of their voy- age, and we are of ♦ihe opmion that no such condition could be attached to the enjoy meiit of the liberty." Consequently we may consider this dit"ficulty settled as far as it can be settled by reason and authority. The United States fishing vessels may enter the bays and haibors of Canada to 'htain wood and water whenever they ar2 in need of th .-e articles. To require these small vesse' bring with them supplies of wood and water sufficient for voyage would completely nullify the treaty and destroy value of the fishing rights. They may al-o etr .: and lie a' '.nchor for a reasonable tmie whenever fishing outside is im[)ossible or difficult, even when not compelled to seek safety from actual destruction evident to all. When the fishermen enter the bays and harbors for legiti- mate purpose , it is perfectiv proper for the local authorities to exercise supervision over them in ordt-r to prevent a violatio of the treaty. Thus it is proper for them to send an officer on board a vessel to remain there until it departs, as a means of placing temptation beyond the reach of the fishermen. But when the Provinciil authorities order the vessel to leave within twenty-four hours, or immediately, they are committing a viola- tion of the treaty as serious as any within the power of the fishermen. These fishermen are in express terms allowed to enter the ports for certain purposes, and any law which denies them the right is null. for the ; rpose ol procuking bait; pkeparing 1 ■ fish; cleaning and packing fish; sell'ng gouds and purcriasino supplies; la-,ding and trans-shipping fish. The right to enter harbors for the purpose of bartering for or purchasing bait for use in the deep sea fishing has been ^.......ww. ..^ v>>.. {^v>« LI iiiiiciii uTiuvi iTiC Ileal), 1 IMS Claim 19 based on the ground that as the treaty had reference to inshore fishing only and that as t' Jeep sea fishii- ,; was in no v> ay under I20 THE UNITED STATES AND consideration it could not have been the intention to exclude vcEJels engaged in that kind of fishing alone from the ordinary commercial privileges accorded to vessels engaged in other branches of commerce. The American claim and the grounds upon which it rests are well set forth by Mr. Phelps in a letter to Lord Rosebery, dated June 2, 1886,' as follows: "Recurring, then, to the real question in this case, whether the vessel is to be forfeited for purchasing bait of an inhabitant of Nova Scotia, to be used in lawful fishing, ft may be readily admitted that if the language of the Treaty of 1818 is to be interpreted literally, rather than according to its spirit and plain Intent, a vessel engaged in fish- ing would be prohibited from entering a Canadian port 'for any purpose whatever' except to obtain wood or water, to repair damages, or to seek shelter. Whether it would be liable to the extreme penalty of confiscation for a breach of this prohibition in a trifling and harmless instance might be quite another ques- tion. Such a literal construction is bett refuted by considering its preposterous consequences. If a vessel enters a port to post a letter, or send a telegram, or to buy a newspaper, to obtain a physician in case of Illness, or a surgeon in case of accident, to land or bring off a passenger, or even to lend assistance to the inhabitants in fire, flood, or pestilence, It would, upon this con- stnictlon, be held to violate the treaty stipulations, maintained between two enlightened maritime and most friendly nations, whose ports are freely opened to each other In all other j^laces and under all other circumstances. If a vessel is not engaged in fishing she may enter all ports; but If employed in fishing, not denied to be lawful, she is excluded, though on the most inno- cent errand. She may buy water, but not food or medicine; wowl, but not coal; she may repair rigging, but not buy a new rope, though the inhabitants arc desirous to sell it. If she even entered the port (having no other business) to rep'^rt her- self to the custom hcv.sc, • • • she would be equally within the Interdiction of the treaty. • • • It seems to 5^.- r!„ar that the treaty must be construed in accordance with those ordinaiy and well settled rules applicable to all written in- « Ex. Doc. No. 19, 4yth Cong, mtl Ses*. THE NORTHEASTKRV FISHERIES. 121 Zn7T-\ "^.l "'"'^""' ''''^ '^'"^'-^^^ ''''^«'^^^"« -"«t con- stantly fail of the.r purpose. By these rules the letter often gives way to the intent, or rather is only used to ascertain the i./tent. Thus regarded, it appears to me clear that the words for no other purpose whatever,' as employed in the treaty- mean no other purposes inconsistent with the provisions of the treaty, or prejudicial to the interests of the provinces or their inhabitants and uere not intended to pievent the entry of American fishing vessels into Canadian ports for innocent and mutually beneficial purposes, or unnecessarily to restrict the free and friendly intercourse customary between all civilized mari- ^me natrons, and especially between the United States and Great Britain. Such, I cannot but believe, is the construction If^u^ce " ^ "^"" '^'' ''""'^' ^y "">' -nJightened court Since 1818 important changes have taken place in the methods of fishing in the regions in question, which have ma- terially modified the conditions under which the business of mshore fishing is conducted, and it is but reasonable that this oe taken. nto consideration in any present construction of the treaty. Drying and curing fish, for which the use of the adji- cent coasts was at one time essential, is now no longer fol- lowed. xModern inventions for artificial freezing and fhe employment of vessels of a larger .ize now permit the catch and direct transportation of fish to the home markets without recourse to the contiguous shore. The mod. of taking fisi, in.hore has also changed, and .ince the introduction of purse-seines, bait is no longer needed for such fish.ng. By means of the purse-seines mackerel are now caught in deep waters entirely exterior to the three mile line. As It IS admitted that the deep sea fishing was not under con- sideration in the negotiations of the treaty of iS.S, nur was affected thereby, and as bait for inshore fishing is going argeiy out of use, the reasons which may have' formerly existed for refusing to permit American fishermen to pro cure bait within the hne o* » -^ - -. ^ *„_ . ., , .. " •^••b"«- ii"iii iiie shore for fear they should use it in the same inhibited waters for the purpose of catching fish, no longer exists. Consequently it is claimed by the American government that to prevent the pur- ,j, THE UNITED ST.\TK, .vND , I •, , „.v Other si.ppl/ needed m deep sea fi.hiiig, " ,a be To exlid h« eonvLionto object, wholly beyond rpnr'::: ,::■;, ».. in.e„.. and .o give 1. an eSee. neve, "t;:'v-::'is Lt-eCd .» .. cer..n extent .ranted by the Thi> ^ i^.^* 1 F J ,(,5 ,„„.s passed for BHtlsh g°-T::; ;'^ *, ;f,tw into effect, to n,ake provision T TTalV uch Ics'nl ga and providing any penalty there- :; Ne h!r thtl^lperlaf Act nor the several Provincial Acts rn.air:ny pvi Jn declaring "-.-;-- CTot "euf while this claim may be sustained with some show of .11 .hould not be insisted upon as a right. If claimed at success It shouia noi uc j.j „„„„ the dutv of "good .11 it should be as a privilege founded upon the duty or g • LT„™1" and the obligation of international comity. It „e.ghborho'»-» > U. S. Stilt, at Large, vol. 4, p 4i7- Til. VORTHKASTER.V Hsli; U1K>. 123 American vessels were eiU.tled to no commercial privilecres in British colonial ports. " At the time ox the Treaty of 17S3 it was the policy of Great Britain to exciude all foreign vessels from her colonial ports on this continent. The Treaty of 1794 declared Lhat as to commer- cial privileges it should not 'extend to the a mission of vessels of the United States into the seaports, harbors, bays, or creeks His Majesty's said territories " in America. This policy was continued until after the ci .. of the war of 181 2, when the United States attempted to counteract it by retaliatory legisla- "on. The treaty of 1815 aeclared that "generally, the "mer- chants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce,^/ subjeci always to the laws ayid statutes 0/ the two countries re- spectively. " Non-intercours laws were passed by Congress in 18 18 and again in 1820, the latter of which excluded^all British vessels arriving by sea from any place in L nver Canada, New Bruns- wick, Nova Scotia, Newfoundland, St. Johns, Cape Breton, or any of the British Colonies on the continent. In 1822 Great Britain passed a law permitting American built vessels to im- port certain goods directly to the West Indies. The following year the United States met this favor by suspending the laws of i8i8 and 1820 in respect to certain British ports, and authoriz- ing the direct importation of colonial produce thf^refrom on con- dition that similar privileges be granted American vessels. Much irritation grew out of these laws, res-ilting in the closing of the British ports in 1825 end the American 'ports in 1827. Great Britain objected to the language of the ' of 1S23.' The > The following statement of the history of that legislation was given by Senator Smith, of Maryland, in the Senate. -During the session of 1822 Congress was informed that an act was pending in Parliament tor the opening of the colonial ports to the commerce of the United States. In consequence, an act was passed authorizing tlie President (then Mr. Monroe), in case the act of Parliament was sati>factory to him, to open the ports of the United States to British vessels by his proclamation. Th» act of Parliament was deemed satisfactory, and a proclamation was ■ccordintrlv IssUL'd a"d f^"" ^--iJ" .-/^■t>i...«r.,^...l !'_/».> ._!.. »__ commerce, and I think contraiy to justice, a Treasury circular issued tilrecting the collectors to charge British vessels entering our ports with •H THE UNITED STATES AND nuesticn was much discussed during the p-csidcntial campaign that resulted in the election of Jackson. The oPPO"^"ts <)f President Adams charged that the negotiations had fa.led be- cause of the blunder of the administration in claiming the admis- sion of American vessels into Canadian ports as a right instead of soliciting it as a privilege. Upon the accession of Jackson, his Secretary of State, Van Buren, was instructed to reopen ne- eotiaiions and try to secure the coveted ..rivilege.' He was successful and on October 5th, 1830, Fresiden Jack- son issued his proclamation declaring the ports of the Unit.d States open to British vessels coming from all colonial ports on or near the American continent. The Canadian auth. es claim that they have not violated tb.e arrangement ot ifiSv oe- cause they have withdrawn commercial privileges irom fishing vessels only. But this position is not tenable. No pa-^cular kind of vessels was nancd aiul 1.0 qualifying words were used The proclamation included all craft, recognized as vessels by the United States, that i., all thu.c uf five tons burden and up- wards, having licenses; those of twenty tons and upwards hav- ing enrollments; and tho.e possessed of certificates of registry, the alien t;;;;^ge and dis^^mn^^^^^i^uties. This o. 'er was remon- trated against by the British Minister (l think Mr. '. .ughan). The trade however, went on uninterrupted. Congres. met ar.d a bi 1 was drafted in 1823 by Mr. Adams, then Secretary of State, and passed both Houses, with little, if any, debate. I vot.d for it, believing that it met, in the spirit of reciprocity, the British Act of Parliament. This bill, how^ ever contained one little -vord, ' elsewhere,' which completely defeated all ou expectations. It was noticed by no one. The effect of that word . ehewhere' was to assume the pretentions alluded to in the instructions to Mr McLane. The result was that the British Government shut their colonial ports imn,ediatcly, an<^ thenceforward. This act of 1822 gav. U8 a monopolv [virtually] of the Vest India trade. It admitted free of duty a variety of articles, such as Indian corn, meal, oats, peas^ and beans. The British Government thought we entertained a belief thatthey could not do without our produce, and by their acts of the .,th of June and Jth of July, .825, vhey opened their ports to all the world, on terms far less advanugeous to the United States than those of the ac of 1.22 \ Thetnstructions given McLane by Van Buren led to the rejection of Van Buren'8 nomination as Mi.nister to England in 1832, on the ground »K». h. h.ad adoDted the British side of the question and injected the result oi a Presidential election into a diplomatic nefeotiation. THE NOitTllKASTEHN 1 ISUERIES. 125 legally issued and in force. In 1S38 Mr. Justice Story held that under the statute a registered vessel was not entitled to carry on the whrde fishery as an American vessel, or to the privileges of an American vcsscl» but this was at once recog- nized as a defect and cured by Act of Congress of April 4, 1840. Certificates of registry are, as a rule, required from vessels engaged in foreign trade and permitted to those engaged in do- mestic trade. Vessels of twenty tons burden rnd upwards, 'nrolled in pursuance of law, and having a license in force, are ".'ssels of the United States entitled to the privileges of vessels -•ngaged in the coasting trade and the fisheries. The same qualifications and requirements are for registry as for en- rollment. If vessels are to be coasters or fishers, they must be licensed, and only for one >ear, and cannot carry on any other business unless another document has been obtained from the Treasury, which is a per- mit "to touch and trade." A registered vessel cannot be licen-^ed to carry on the North Atlanti. fisheries, hut she ma_\ carry on such fisheries without a license. Enrolled ves-sels, having a license, may generally go from one of our ports to another without <:-.;ry or clearance, but regis- tered vessels must enter and clear. A r.. tored vessel, carrying on whale fishery, may enter foreign ports for • Ic.-, but a whaler only en- rolled and licensed cannot thus enter. N . ,ol from a foreign port can enter, and unload, excepting at ports desi^^nited by Congress; nor can merchandise iome in vessels of less burden than thirty tons, and the cargo must be accompanied by a manifest, whii.h must be exhibited to the prst boarding otTicer, and again on entry. If an American vessel, licensed for fishing, shall be found within three leagues of our coast with foreign goods on board of greater value than :J5oo, she is liable to forfeit- ure with all her cargo, unless possessed of 4 permit "to touch and trade" at foreign ports, and then she ifiust r--,'ularly enter, surrender her per- mit, pay duties, and be subject to all regulations for vessels arriving from foreign ports. We separate American vessels Into subdivisions, as by registry, by enrollment and license, by license I'lcasure kk hts make another sub division. Rut foreign governmcnr, cannot say that a vessel, regularly documented, is by reason of hci class, not an American vessel. The classifications rL-fcrred in the Segiiining, and reft-r now, chiefly to fees, tonnage taxes, entrance and ieir.iTuc. production of manift'sts, passen- ger-lists, oaths, unlading, aiui similar things, when our vessels arc in our own ports. Ferry boats arc .\merii an vcsscN, but they need not from district to distt'ct is, as to clear. inie and entrance, subject to the same rules as vessels under finntKr license and cnnillttient, jmd, on tiie other hand, a licensed and (.■luilU-d vessel touiliing at a (uieign port. 126 THE UNITIO STATtS AND does not thereby, become subject to our tonnage duty, nor to clearano and entrance fees as if fro.n a foreign port. U is fo' our own I'nven- cnce that vessels are classified as fishermen, inasmuch as our la "on- trol bj. mmute regulations the business of fishing in respect to contrar?. with those so employed. The, punish fishernL, who de ert andr'^ the la ^r" IV'-' ''^'^'"" °' '''' P^°"^'^^ °^ "^^- "'ch. bu n" ' o 17J^ 'Z\ T"'' ""'"''''' "''^■^' ^''^^'" 'h«-' -°""rted legis at on of 1830, and Pres.dent Jackson's proclamation of that ,ear, are entiled to commercial privileses in Canadian ports.' There can be no question that the Canadian statute of No- vember 1SS6, authorising the search and forfeiture of United States fishmg vessels, is a withdrawal from American fishermen of commercal privileges such a, are enjoyed by Canadain fish- ermen m the ports of the United States. While the right claimed of bringing to and searching fishinc. vessels suspected of the intention of violating the treat;, may b^ offensue as a revival of the ancient British "hovering act - yet, .f the search be fairly conducted and under circunltanies from which he intention to fish may be rersonably suspected. It may be tolerated, as the custon^s laws of the United States authonze such searches of vessels four leagues from the shore/ But the law was passed avowedly for the purpose of author- zmg the forfeiture of fishing vessels entering Canadian ports or the purpose of purchasing bait, ice and other supplies, and or any purpos^e other than shelter, repairs, wood and water. Leg.sIat.on of this character operates as a repeal of the arrange- ment o ,830, and to that repeal the United States can only respond by a similar repeal of our own laws and by a refusal to confer hospitalities or privileges on Canadian vessels or boats of any kind m our ports. ^^ A violation of con.it v nu.y be looked on as an unfriendly act but ..ot as a cause for a just war. En-^land may judge for herself of the nature and extent of the comitv and courtesy she will show us. Im the present case we don't propose to reta!=atc; we simply respoiul, ue, too, suspend comity and hospitality." ' ^ ' Reply of Secjr. Manning, Fchy. 5, 1887. W< urndof Mr L. Jenkiim. -' ' \-u.. ■See i.ranu » v> neaton \ ln( Law Int. Law tt iTo THK NORTJ1KA5,TI:rN HSMEHIES. 127 This is the only remedy for the denial of commercial privi- leges, among which I class the privilege of entering Canadian ports for the purpose of purchasing or selling bait, goods, mer- chandise, or supplies of any kind, and landing and trans-shipping fish overland to the United States. THE RIGHT TO NAVIGATE T E GUT OF CANSO. The denial of the right to iui\ igatt- the Gut or Strait of Canso is a matter of the most vital importance to the American fishermen. They claim no right to fish in the Strait, hut as the Atlantic Ocean and the Gulf of St. Lawrence which it connects are both free to them, they have the right to pass through it in going cither way. In order to reach the Gulf of St. Lawrence it is practi- cally necessary to pass through t'.iis .str.iit, and according to the rules of international law recogni/ed by the United States, it cannot permit this passage to be closed. " Straits which serve as a means of communication between two seas " savs Heffter.' "should be regarded as free and common to the use of all na- tions, when they can be passed by vc-cls beyond the range of cannon placed upon the ailjaccnt shores. If this is impossible, the strait will be subject to the sovereignty of the riparian state. Nevertheless, it is agreed that no one people can prevent others from the innocent use of these channels of c are passages communicating from one se.i to another. If the use of these seas is free, the coniii iiications ought to br equ.illy free; for otherwise the liberty of thesi au. seas wouM only be « chimera. It is not sufficient, therefore, in order that propcrtv in a strait may be attnbuteil to ition mistress of its 'chores, to sa\ that the strait is actually pou er of this nation, tliat it has the means of controlling passage by its artillery or by any othei mode of action or defc u^e; in a word, that it is able to have the waters really in it- ni-^P-io.,. Tlic snateria! objects to pro- ' Droit Internationa! I'liblii. • Diploinatie de la Mir, torn ufi. 12S THE UNITED STATES AND exist over such strait, hL sovereign empirt cannot certain rights ereSns,?;:: Tr" "^"'"^ '"P""- «■-• >- reco,„i.ed h, inter: io, f 'Vh fTf Vr°' -' such that the vcssek wh:.K • , ' *^^ ^^""^'^s ^re along the cort V -th ""■'^''' ''^'" ^""^ °^^'^^^ ^° P-« state which no . ^ """«"-^"S-' ^^e cannot refuse to the of e"u Ir: r *'^'".'^°^^^^ ^^^^ --'^^ht, for its own security pilots or bv ?K ^ ^. ' accomplished by the aid of skillful andVcCn by :::i:.^'^^ ^^^"^^" ''-'''- '^'- «-^ na^rirrt!'^ ^"'^ ;r -^^-P^-^^language:^ ^If .he of the ch. nn el b V ' 7". " ""''''''''"^ '^ ^^^^' ^^e navigation free Ev n V- ''''"'' '^'^'y ^^ <^on"-ted ought also to be terHtory of th ''"'' '^ '^""'^'^^ '^^ ^° ^^ -'d- by the row asl be """' r"""»"' ^"' '''' ^he same time so nar exlsv" r^rt i d^^-^""°r'"^^°'" '°^^ ^^--' ^^« strait is contra terbvh."%u''' '°^"^^'^" ''^^^ -^h wjth the srtts ::.:e:ti"^ ^' "'^^ -"^^-^ ^ ---^^^-^^ 'o8. 33d Cong.. ..t Sess Benton sThm' y"^ v"" "^^ ^"'^- ^°- Woolse/s Int. Law. § c, ■ Nor"hTm rI' ,^^*" ^ '«^^. vol. .. p. 362; Elem. Int. Law (Dana), p .^^ °'''' ^"'- *' P" '»"^' ^Vheaton'^ * Elem. Int. Law, p. 36a. THE XOnTIIIJASTEKN- FiSilKKIi..,. PROVINCIAL CONSTRUCTION OF A TREATY. 129 whTch do nnVT r""^'" ^"'^ ^"'^^ ''' international law t^a fh . ' °^ argument. One uf the n.ost axiomatic is tha thetreaty making power of Government i. the po. h Lh th i::t7"Th;'^ "'^; ^^"^^^'^-^^ ^--^ ^- '"^--•- o' tne t eaty The organ of a government which is char-^ed with he admm.trat.on of its foreign affairs is to be .ddressed bX stateorfed''T " r^'^"'"'"'^^ s ate or federal, cannot be .et up as a defense to a charc^e o v^atmg a treat,. Consequently the claim of Canada to con stn^e a treaty contracted between the United States and Great Br tarn because she is peculiarly interested and because the con t:te7r;Gr:r-r- ''^"^' '^ '- ''-^y ^- ^-- ^^^^ nation N fth T ^ ''"• " '^'^"^^ °"^>' ^° ^" independent claim of rilh^ . ^ P°''"' "" "°"'"^^ ^ ^^^^^v, the cla.m of nght to construe one contracted between the sovereic^n sett cirm'?: '"'-T '' P^^P-^— As well might Massach^- Ctur of S T ""^ '° T" '"^^P-^^-^ negotiations with the Cou tof St.James as Canada with the United States. Both lack the essential element-sovereignty Grla'l'B^if '?'''" '" ''"^^'^ ^"'^^^^^ ^^e responsibility of SLI! K. ^"'"""^ '"'"^^'°" °^ ^h« fishery treaty and th«respons.b.hty was accepted by Great Britain in the Fortune WoTh ", f '':'^^^however,to add," wrote Earl Kim! b.hty of determmang what is the trueconstruction of a treaty made Majesty s Government, and that the degree to which this coun- try would make .tself a party .. the strict enforccMnent of treaty rights may depend not only on the liberal construction of the treaty, but on the moderatio., and rcasonnhN.n.... „ :.u „.u: .,. these rights are asserted. H. Ex. Doc. 84, 4f,tJi Cor ' Halifax Com., vol. Forum for Oct., i8S6. 2nd S iCss. p. 1544; "le "The Fis!.er^ Dispute." in Tht 130 THE UMTKD STATES AND CONCLUSION. A careful study of the lonjr dispute over w.e fisheries, shows conclusively thnt the United States has cn declared that "there was nothing in its use as a fishery that our fisliermen desired the governint.it to procure for them at the price of an equivalent, whether in opening our markets to Canadian fish, or in monc; that when the Treaty of Washington had, at the cost of $5,500,000 and other con- sideration, opened these waters as a fishery, the shore people prevented our taking bai»: by mobs and violence to our vessels and seines; that Great Britain, unwilling to restrain them, naid damages for the Fortune Bay outrage; that we did not use the cod fishing in the limits; that the mackerel was iiisi-rnificant and that the use of these watei rs as a fishery adjunct to our un- THE NORTHF VSTEKN FISHERIES. 131 doubted right of common fishing in the ocean had no practical value for fishing under our flag and was n*- asked for by our fishermen." ' The Canadians always placed an excessive valuation upon these fisheries, and have generally succeeded in getting us to take them at their own valuation. Most of whatever value they may have had to our fishermen in former times has disap- peared within the last fiftecri years. The change in the char- acter of the fisht\es, beginning while the reciprocity treaty of 1854 was in operation, has continued down to the present time, and bids fair to be continued by means of new inventions which increase the value of the deep sea fisheries at the expense of the inshore fisheries. If the fish ran be taken far out at sea by means of nev.' appliances and preserved by artificial fre<'ring, the necessity for going inshore is greatly decreased. It is very improbable that the purse-seine will go out of use. The pioba- bility of the invention of even more destructive appliances is much greater. Every attempt to use the purse-seine in tlie gulfs has proved a failure and the fishermen now confine their operations more and more to the shores of their own country. The statistics bear out these statements, ^n 1S73, fishing ves- sels caught 77,01 1 barrels of packed mackerel in Canadian waters, of which 25,670 came from within the three mile limit. In 1877, sixty vessels caught 7,319 barrels, and in 1S82, one vessel caught 275 barrels, of which not over 100 barrels came from waters opened to the American fishermen by the recipro- city treaty. These one hundred barrels were worth $2,337.50 and the United States paid for the privilege of catchino' them the sum of $458,333 in addition to the remission of duty on many millions pounds of Canadian fish.' The undeniable fact is that our fishermen have no use for the inshore fisheries which are now closed to them. Their future value will be governed by the changes in the methods of con- uucting the industry and every indication points to a diminution of their present value. It should be regarded as established, that the value of the prohibited fisheries is not sufficient to justify granting tlie tree entry of Canadian fish into tFie >The Century Jet., 1S86. »N. A. Rev.'March, 1S86. 13^ THE L'NIIED STATE.-, .v\D ports of the United States in exchange therefor. At the present frne there is no ab.>Iute necessity for connecting fee fish.ng and free fish, as the : ia.e has gone b, when there Is any just proportion between t!-,-,';i. ' It is possible that th. a.'t commission may reacn a set lement of the differe. that will meot the aop oval o tl wi';r;h''" '' ''- ''''-' ''--'^y intcrested^'ars ti a^ain t- t '^''' ^^^^"^'- ^^^'^ "^^ ^^^ ^'^- end be books ? >f the enlorcement of the law now on the statute Congress gave the President power to retaliate upon Canad.an vessels for acts de.med by hi. -triendlv or in con- travention of ex.sdng commercial regulat s • " '=°" No absolute prohibition of commerce .• rh Canad.. ' contem- p. ted by the law. The President ma. .is disc:.e.on app y the proclamation ^Ho any part or to a.. ,f the foregoing ^ub jects and may revoke, qualify, limit, and renew such^proclama- non from time to time as he may deem necessary to the fulUnd juste ,, the purposes of this act," thai is, .to" fi herme: An '■''" 1- ^'"^'^''^" ''''''' ^^^^^^ Am'ericln ushermei,, An.encan trading and other vessels." Under the liberal provisions of this law. :n the exercise of h« sound and L gal discretion, it seems that the P^ In m.ght protect the fishermen from petty annoyance w thou striking a death blow at the business of importing eggs which appears to trouble so many writers.^ Vessels loaded'wi;h tW of retw."'" '''''' '' '^'''-'' ^^^'"^^'^^ ^-- 'h^ «P-^^- The real difficulty in the way of a find settlen.ent of the df - pue ., ,, ,^,,, co„nection with other grave problems. eHe , ; -\""'"'"'' '''^ ^"-'■•^l over the northeastern fish- anff and revenue reform. The Canadians cannot separate it f.om the great questions .f commcrciai reciprocity and im- peml unuy. The Englishin.n tliinks that a, the 'bottom of enforcement ._., the r.i.U.J! V ■ ^ '" '"IK"'"''"^ ««"i"^t tht P 77 ^VL .-nam -. I he Ksht ry Dl »i>ulc, THE NOKTHEASTERN FISHERIES. 133 the whole matter will be found his ubititiitous enemy— the Tri*iKm'jti t Irish man Saturday. Review, Sept. 3, 1877. Sir Charles Dilke, in an article on the Present State of Europe, Fortnightly Review, June 1887, »ays: "The American fishery troubles would not of themselves be found difficult of solution were it not for Irish discontent." ■i PRINCIPAL AUTHORITIES. GENERAL. Adams, Henrv: The Life of Albert Gallatin Phila., iSSo. Adams, John: Works, edited bv C. F. Adams. lO vols. Boston, 1S56. Adams, J. Q.: Memoirs of, comprising portions of his Diary from 1795 to 1S48. Edited bv C. F. Adams. 12 volumes, Phila., 1S74. " The Duplicate Lett'.r-. Tiie Fi-sheries and the Mississippi, Docu- ' ments relating to the Transactions at the Negotiation of Ghent. Washington, 1822. " The Fisheries. Niles Reg., vol. 33, p. 25. Adams, Samuel Life and Public Services, being a narrative of his acts and opir.iuns and of his agency in producing and forwarding the American Revolution, with extracts frpm his Correspondence, Papers, and Political Essays, by William V. Wells. 3 vols., Bos- ton, 1865. American State Papers: Documents, Legislative and Executive, from 1789. Foreign Relations, 6 vols., 1789-18:7. Anonymous: Review of President Grant's Message relating to the Fisheries. Pamphlet, Ottawa, 1S70. " Canadian Fisheries Saturi.iy Review, v.)l. 6i, p. 593. Bancroft, George History of the L' i States. :o vols., edition of 1S55, " Historv of the Constitution of the United States of America 2 vols., 188: Benton, Thomas H Thirty Years View; or a History of the Workings of the American Government for Thirty Years, iSjo to 1850. 2 vols., 1854-56. BlaitiC, James G. : Twenty Years of Congress, from Lincoln to Garfield, with a review of the events which led to the political revolution of i860. 2 vols., 1SS4. Boyd, A The North American Fi>hery Question. Fortni^'htlv Rev., June, 1886. Castlcrcay. (Viscount): Memoirs, Correspondence, Dispatches, and otht' papers, edited by the Marquis of Londonderry. I2 vols, in three series. Diplomatic Correspondence of the American Revolution, edited by jarcd bparks. 12 vols., Boston, iSjy^s. \ 136 THE UNITED STATES AND \ Collins, J. W. : Open Letter in The Centur v, Oct, 1SS6. Gushing, Caleb: The Treaty of Washington, 1873. Edmunds. George B.: The Fishery Auard. N. Am. Rev. vol nS n , Ford, VV. C: The Fishery Dispute. The Forum, Oct., 1886 " ' ' Franklin Benjamin: Works, edited by Jared Sparks. ,0 vols Phila iSrS Gallatin, Albert: Writings. 3 vols., edited l.y Henry Adams'; Phila ' xStV Hamilton J. C: History of the Republic of the United States a« Traced in the Writings of Ale.xander Hamilton and his Co^ temporaries. 7 vols., Phila., 1S6S. "' Isham, Charles: The Fishery Question, its Origin, History and Present Situation, with a map of the Anglo-American fishin.. grounds and .short bibliography. " Questions of the Day, No XU » New York, iSS;. ^' ^^^• Jay, John : The Fishery Dispute, a suggestion for its adjustment by abrogatmg the Convention of ,8.8. and resting on the Rightf V W^. Tl ''"''"''''''■'^^'-^•'^'783. A Letter to -Son Wjlham M. Evarts, New York, 18S7. Jefferson^ Thomas: Writings. 6 vols., edited by H. A. Washington; Joncas, L.Z.: The Fisheries of Canada. A paper read before the T.t-TTV''" ^'^-"«— t of Science, Montreal, .884. pubhshed m "Canadian Economies," pp. ^..y,. Montreal] '"^^°' ]In.. ils^"""" '■'"' °' ''' ^'^'^'■^ ^^^^"°- Scot. Rev.. Lome, Marquis of : The Canadian Fishery Dispute. Fortnightly Rev March. 1887; Eclectic. May, 1887. Madison, James: Letters and oiher writings. 4 vols., Phila 1867 Marsh, A H. : The Canadian Fisheries Question. American Law Re- view for May-June, .S87, vol. xxi, pp. 369, ,,,8, St. Louis, 1887 ^""' •'men ^ ^^ ' "^^^ ' ^ -^^"^ "^""^^ ^''^'"^' " ^'""'-" States- men, Boston, 1885. North, F.H.: Gloucester Fishermen. Century, Oct. 1886 ^'''^' ^3^6. "'''°'^ °^ '"' ^"'"^ ^"""°"- ''^^- ^'"^ '"^t. J"l^ Phillirr.ore, Sir Robert: Commentaries vs. International Law 3 vol- * umes, London, 1857. Pomer«^,I. N.: The Northeastern Fisheries. Am. Law Rev vol ? p. 389. • • ^' Rodney, C. K ■ Letter tr> Pr^-i.-J.-r-.f »f.-.^.».. Rush, Benjamin: Notes of -c, r-ioverribcr, i8iS, Ma. N cgotiations. MSS. Sta» e Department. I •r/(E N'JR rULASTERN r-'FMF.S. = 37 Sabine, Lorenzo: Report on The Principal Fisheries of the American Seas, prepared for the Treasury Department of the United States. Washington, 1853. " The American Fisheries. N. Am. Rev., vol. 62, p. 350, Schurz, Carl: Life of Henrv Clay. " American Statesmen," Boston, 1SS7. Schuj^ler, Eugene, LL. D : American Diplomacy, and the Furtherance of Commerce. Chapter on ;The Fisheries, pp. 404-420; New York, i886. Secret Journals of Acts and Proceedings of Congress from the first meeting thereof to the (dissolution of the Confederation by the adoption of the Constitution of the United States. 4 vols Boston, 182 1.- Seward, W.H.: Works, edited bylGeorge E • .er. 5 vols., Boston,i884 Shelburne, Earl ol: Life, by Lord Edmona [- :t2maurice. 3 vols., 1876. Treaties and Conventions between the;United States and other Powers Washington, 1871. Vergennes, Count de: Confidential Correspondence, edited by De Cir- c6urt. 3 vols, 1876. Webster, Daniel: VVorks. 6 vols, Boston, 1872. Wellington, Duke of,: Dlspatcho.. |i2 vols. Supplementary Dispatches 17 vols., edited by his son. Wharton. Francis, LL. D.: A Digest of the International Law of the United States, taken from documents issueH by Presidents and Secretar.es of State, and decisions of Federal Courts and opin- ions of Attorneys-General. In three volumes. Washington, .SS6. Wheaton. Henry: Elements of Internationa! Law. (Dana) B n.iS66 Winsor. Justin: Critical and Narrative K..:ory of America, vol. v, Boston, 1887. .< . , Woodbury, Charles L.: The Canadian Fisheries Dispute. Ameri.n Law Review for May -June, 18S7, pp. 431-445. WooUey, Theodore S.: TheJFishery Question. N. Am Rev., vol. 142. p. 330, March, 1S87. I »3S THE L-NiTtD STATFS A N O y ;^ PUBI If racVMI NTS. =., Oct. 27, 1781. Secret Journals Resolutions of Massacliusetts Le ofCo gress, vol. 3, p. j ^o. Lovell's Report on the Fisheri -sjan 6, 1782. Secret Journals of Con- gress, vol. 3, pp. 151-10: . . report was incorporated in the report of another commi ... jnade Au". i6, ifSi. Letter of Secretary Gallatin on To.t rage and Fisheries. Feby 18 i8o? Ex. Doc. 7th Cong., 2nd Sess. • ' Resolutions on Detention of Fishing Vessels, Feby. 23, 1818. Committee on Commerce and Manufactures instructed to inquire into the ex- pediency of providing by law for casesof fishing vessels d-.tained in Nova Scotia. Sen. Doc. No. ns, 15 Cong., ist .se^s. Message of President Mr nroe on the capture of American fishecp-.en, Feby. 16, 1825. Transmitti.n^^ copies of correspondence rpon the' subject of the capture and detention by British armed vessels of American fishermen. Ex. Papers No. 93, 18 Cong., 2nd Sess. Message of Presir^ent Monroe, with papers relating to the capture and detention of American fishermen, Feby. iS, 1825. H. Doc. No. 405, i8th Cong., 2nd Sess. 5 Am. St. Pap. ,^For. Rel.), p. 675. Message of President Monroe relating to American Fisheries, Feby. 23, 1825. Transmitting further report from the Secretary of State -n the subject of the capture and detention of American fish- ermen in the Bay of Fundy. Ex. Papers, No. loi, iSth Cons, Message of President Johnson, Transmits information relative to the rights and interests of American citizens in the fishing grounds adjacent to he British Provinces, if. Ex. Doc. No. ~6S, 30th Cong, isl S - Letter of Secretar McCuILich on Canadian F Transniictuii; ':omniunic,. lions from (i ing additiou.il information relating tu and the regulations of the Canadian G granting licenses to for.l ,mi vessels to ii -n in Miei- uatcrs. Ex, Doc. No J95, 40th C. , , :Jnd Sess Report of Secretary McCuUoch or. Colonial Trade and Fisheries, Feb^. 8, 1S69. Transmuting papers and a report of K U. De'rbv on the colonial trade and th.- fisherie^ on the coast of thj British Provinces H. Kx Doc No. 75, 40th Cong., 3rd Se-. Message of Pre^•dcnt Grant on tlu- Fisheries, April 6, 1870. U. Ex. Doc. No ^39, 4,,t Cong , jnd Sess. On Sir Fiduard Th.iintons proposal of a fi^herv commission; see For Rel. 1871, p. 497. Report on Cod and Whale Fisheries Jan. S, 187.'. H. Misc, Doc. No 3:, 43nd Cong , ind SevH.. vol. i, Contain> Report of Th.mias Jtffer- •on on the subje. t of the cod and «hale fisheries to the House o( Representatives, Fcby. I. 1791. being Ex. Doc.-. Mt Con-.. ■^I'-rics, May J5, 1S6S. ^V. Rrega ct^ntain- ■ Canadi.m ri-.hcrie> rnment in regard to II. jeiTe j.'jn 1 Woriv., Nol. 7, p. 53s.) .\: o Report r40 TJIE I MIKH STATES A.Nb by Lorenzo Sabine on the Principal Fisheries of the American Seas, made Dec. 6, 1852, and transmitted by Secretary Corwin as a part of his annual report on the finances at ;nd Session of the 32nd Cong. This is a very elaborate and valuable report. Resolution of Vermont Legislature relating to the Fisheries, Jan. 15 1877. Instructing the Senators and requesting the Repre-enta- Uves of the State of Vermont to use all proper efforts for legis- latlon for the protection of the fisheries, &c. Sen. Misc. Doc No. 28, 44th Cong., 2nd Sess. Documents and Proceedings of the Halifax Commission, 1877, under the Treaty of Washington.* 3 vols. H. Ex. Doc. No. S9, 4Sth Cong, and Sess. ' Me8s.ige of President Hayes on the Fisheries, March 19, 187S. Trans- mitting information relative to the appointment of a third com- missioner under the 23rd Art. of the Treaty of Washington. Sen. Ex. Doc. No. 44, 45th Cong., 2nd Sess. Message of President Hayes on the Fishery Question, Mch. 21. ,878. Communicating the correspondence between the United States anu Great P Uain in relation to the appointment of a third com- mis,ion under the l.c.ity of Washington, ^3cn. Ex. Doc. No. 44. 45th Cong., 2nd Sess. Resolutions approving report of Committee on Foreign Relatio.is. May »8, 1878. Sen. Mis. Doc. No. 73, 45th Cong., 2nd Sc --. Report in favor of payment of Halifax Award, May 28, 1878. Sen Rep No. 439, 45th Cong., 2nd Sess. Message of Preside.a Hayes as to appointment of Maurice Delfosse as third commissioner on Halifax Commission, June 17, 1878. Sen Ex. Doc. No. 100, 45th Cong., 2nd Sess. Resohtlons of Massachusetts favoring abrogation of the Fishery articles of the Treaty of Washington. Feby. 28, .879. Sen. Mis. Doc No. 80, 4Sth Cong , 3rd Ses'^^. Reports on Propagation of Salt Wa.er Fish and Rights of Nations over Deep Sea Fisheries, Jan. 4. ,879. H. Rep. No. 7, 46th Con« ijt^Ses. See also H. Reo. No. 85. 40th Co,^.. 2nd sl, J^n *',: Report on Fisheries, by Repr-.entative W. W. Rice. Apr. 2.S, .SSo Favors resolution. .questing the President to take measures , ,: ward, securing Ir" nnity to citizens of the fnited States for damages sust.une.! . them from past acts of unlawful viob-nr. commuted by the inba,,i,an,s of Newfoundland, and to procure tSe ea.ly at,rogatio„ nf the Fishery A^tMes of the T eaty c' Washington. H. Rep. No. .275. 46th Cong.. 2nd Sess ' Me..ageof President Hayes recommending th U du.ies be rei.npose.. ..pon \ fJth nnd fish oil. the Diodii. f Mf ( • • vju . ti iiiiieni TH£ NORTHEAoTKllN IISHEKIKS. 141 Insists that local laws are superior to treatv'stipulatiop.- Miv 17, 1880. Sen. Ex. Doc. No. iSo, 46th Cong.' 2nd .Sess. ' ^ Messages of President Hayes relating to Fortune Bay affair, May ,7 ,8So H. Ex. Doc. No. 84,46th Cong., 2nd Sess. Report on the Fishery Provision, of the Treaty of Washington, June o 1880. By Representative S. S. Cox. Favorable to House liill No. 6453, relating to certain provisions of the T- ity of Wash- ington; treaty rights as to inshore fishing; reward paid to Her Britannic Majesty for the freedom of the ♦ishery ; fishermen of the United States driven by unlawful force from the fishing grounds; local legi. lion of Newfour . md the excuse; bill is intended to provide bot remedy now po.ssibic for wrongs In- flicted; favors imposition of duties on fish oi! and fish pro- duced by the Dominion HJieries. including Prince Edward Island and Neufoundland. H. Reports No. 1746, 46ih Conr- 2nd Sess. 't t j,-. Alleged fruu.l, in proof = re Halifax Commission, Febv. 22, i88i. H Rep. No. 329, 4611-, Cong,, 3rd Sess. Report that certair. provisions of theTre..ty of Washington be termina- ted. K.by.4. ,882 H. Rep. No. 23,, 47th Cong., , St Sess. Proposed legisl,.tion for p,o:, r: of AtlanMc fisheries, not antagoni,fc to treaty obligations .sith Great Britain. Mc 24 18S4 Sen Rep. No. 365, 48th Conif., 1st Sess. Resolution of the Massachusetts Legislature, relating to seizures of American fishing vessels. Jan. 16, ,6S6. Sen. Mi. Doc. No 127 Mr. D.ngley-.s resolution, relative to the e.clu.ion of American fi^hin. ves,sels from Canadian ports. Apr 5 ;3S6. H. R. Mi,. Doc No' 233. 49th Cong., 2nd Sess. Extension of Certain Ri:,hts under the T of Washington. Message of President Cleveland transn. ■ i„ .espon.se to Senate resolution of J.,n. 5. .886, accomiu-ied- by correspondence be- t-. .n the Lnited States and Grea' Hritain. Contains Procla- ZT\^\r'i""' '"""" "' J-"- ^'- 'SS5. giving formal noti e that the Fishery Articles of the Treaty of Washington would exp.re on the .st d.u of July, .SS5. Sen. Ex. Doc. No 33, 49th Cong., i,t Sess. Brecke.u,dgeV resolution on seizure of the Da. id R. Adams. May «o. .866. "M.S. Doc. No. 279, 49th Cong, , St Ses,. ^ Mr. StoneVresoIuHo, on the seizure of the Da. id R. Adams. Ma. .0. .886. "M.s Doc. No. 276, 49th Con..., St Sess. Report fromConunitteeon Comn.crce, on securing statistics of the Fisheries of the L'. S. .Ma, ., ,886. M. Mis. Doc. No Mr. 4')th Cor Se.s.i 204; Sen. Hoar * resolution of Inquiry as to th c iici/ure and detention in am I.p THE UNITED STATES AND xviis. L>oc. ^o. i_)8, 4yth Cong, ist Scss. Report from Secj. of State in reference to resolution of Sen Ho.r of Jul^9. .886. J.,, .4, .886. Further response fron" S :; ^ State to same resolution, Julj 30, 1S86. Sen. Edm^d'sresolutionastorightsof American fi.hing vessels, July .3 18S6. Sen. M,s. Doc. No. 146, 49th Cong. , St sL ^ " Mr. Belmont's resolution of inquiry as to the construction of the tariff law of ,S83 relating to the inportation of fre.h fisl. Dec. 7 8 6 H. M.S. Doc. No. SI, 49th Coug. 2nd Sess. Report from Secy, of State with correspondence with^Great Britain concerning r ghts of Vm'erinn fi v, , "'^''^•n, ^„„„ ° ^ -American fishermen, supplementary to correspondence communicated, Dec. 8, iSSo. H. Ex Doc Xo 153, 49th Cong. 1st Sess. °''- ^°- Rights of American fishermen in British North American waters, Mes- sage of President transmitting correspondence, Dec, 8, .SS6 H Ex. Doc. No. .9. 49th Cong, .nd Sess. Resolution to print txtra copies of above document. H. Mis. Doc. No. .8, 4ath tnng., znd Scss. ' ^^ Reply of Secy . of Treasury to the Resolution of the II. R. of Dec. 14, ,887 call.ng for an mterp-etation of the tar.ff law respecting th du ncs^on fish, Jan. ro, :8S7, H. E.x. Qoc. No. 78, 49th Cong., .nd Rights of An^erican fishermen under Treaty of 181S. Report No 364S 49th Cong., 2nd Sess. Report of House Com. on Foreign Affairs' o wh.ch were referred the President's Message of De^. 8. r 6 (Ex. Doc. No ,9) and the reply of the Secretary of the Trea.urv o Jan. .0^,887. (E.V. Doc. No. 78) to the Resolutions of ^I Hou J adopted Dec. 14, 18S6, and House Bill No .0^41 Reply of Secretary of the Treasury to the Resolution of the Hou.- of Representat.ves of D-c ,4, ,886, calling for the interpretation of the tariff la.s resp,. -.ve duties on fish. Appendix. .. Frozen fish,„. U hat a,e American Fisheries.^ .-Duties col- lected on hsh; d. Statistics of fisheries and of commerce with Ca^na_da.^ January .0. .S87. H. E. Doc. No. 78, 49.I. Cong.. Report from Committee on Foreign afr..irs on the P.esi.ienfs Mes,a.e of Dec. ,8. „vs., the reply of th. See,, uf the ITeasur. on Ja^n 10, ,886, and House Mill N... ,024,. Jan. ,8. .8S7. ' H Rep" N". 3^-1^ 49th Cong., 2nd .Sess. ' '"''• «en. Gorm.,n's resolution favoring prohihition of transit through the ySH.:;. .'•■•■'"• '"""'^ "' ''-''"'^ '•■"'" Can.,da.J..n. ,8. 1SH7. .Sen. M.S. Doc. N„ 3,,, 4^,1, Cong , 2„cl Sess. ixtriMirt ot .Seiiat. Committee on F oiei^'ri Rel.itioiis Instnuted t o inqu.re THE XOUTHi; A'^TERN FISHERIES. Into the matter of the rights and interests of American fi>l levievvs the CanaJi.u, legislation and recommends men. H'j ler- if sage of retaliatory bill (S. 3i73) 'Contain. re.stimon'v'an7-trtU- tic8. Jan. 9, 1887. Sen. Rep. N-O.I6S3, 49th Cong., 'jndSess. Communication from Commissioner of Fish and Fisheries, with li.t • New England fishing vessels inconvenience.? by the Caoadi^,. authorities, being in addition to list furnished by Secretary of State. Jan. 26, 18S7. Sen. Mis. Doc No. 54, 49th Cong., 2nd Sess. Revised list of vessels involved in the conlrovei^v uith the Canadian authorities, Jan. 27, 1SS7. Sen. Ex. Doc. No. 55, 49th Con-., 2nd Sess. ° Reply of Secretary Mannir,- to inquire by the House committee of For- eign Affairs. Feby. 5, 1887. xVppendix. B. to H. Report, N0.40S7, 49th Cong. 2nd Sess. Devoted chiefly, to a consideration of commercial privileges of American fishing vessels in Canadian ports. Canadian \on-intercourse, Feby. 16, 1S87. H. Rep. No. 4087, 49th Cong., 2nd Sess. Report of House Committee on Forei ri Af- fairs in favor of the adoption of Senate Bill 3173, with certain amendments. Contain,, Appondi.x A. Considv-„tion of the rights of American fishermen; Appendix B. L. tter of Secv Manning of Fc.y. 5, 1SS7. Appendix C. List of American ve's- sels seized or detained in Canadian ports during 1SS6. Report from Committee on Forei-n Affairs on bills, S. 3173, -to author- ize the President to protc. t ,1 ul defend the rights of American vessels etc," and House biil :-S6, '-to -nect American vessels against unwarrantable disc- ;nation, .1 the ports of British North America.- Feby. .^. ,887. H. Rep. No. 40S7, 49th Cong. 2nd Sess. -t . / ty Sen. Hoar's resolution -th.it under present eircun.st.inee, no ne-otia- ti Cong., 2nd So,s. Resolution requesting Pr.Mdent to tr:,nMnit correspondence in re.^ ud to the deprivations inflicud la Canadi.m portson American ."-.els June 2,, ,887. H. Mi,c. Doc. No. 88, 49th Cong., 2nd Se.s. Mr. Boutell :'s resolution instruaing Committee on Foreign Affairs to repjrt back to the House Senate H. No. 3173. (Rctaliatorv liijl ^7. It. K. ,»iis>. i>oc. No. 1 10, ^9tli Com, .) ilid .St .f H^ THE VSn-Kl' ^lATES AND Resolutions 'nqui. i„g what legislation will pro.notc the Interest, of the fisheries. H. Mis. Doc. No. 66, 49th Cong., 2nd Sess Resolution b^ Mr. Fry In opposition to the «p,,i„tn.ent of a joint Com- mission to consider the fishcrj. question between the United States and Great Britain. Sen. Mis. Doc. Nos. 37 and 59, Jh Cong., 2nd;Session. ^^' ^^ ^. % .v^, ^^'^^ <^-^ %>.t^ IMAGE EVALUATION TEST TARGET (MT-3) # A Q.r V ^ Ux ^'■% 1.0 I.I 1.25 1^128 125 l|o "^ Has lAP lllll 2,0 1.6 V] .^- ^^W /% vv^ % b PhotogTciphic Sciences Corpordtion 73 WEST V«IN SIRftT WnSTf R N Y 1 4510 ( 716) I71-4J03 iV 5^ -^-0-^ <> ^ <> m* iv APPENDIX f TABLE A. Toiuia«e of AnseriCiin flsblng vessels over twenty toiia, other than w;, 74,763 1 1809 I ."i5.165 ■ y 7.).7:ii) H2612 ' 1M70 ' 1871 I 12.903 j 30.1,.; 19 Fourteen jears embracing term of Treaty of ^ WaahijgtoQ ' 1872 1 •M. t03 ' ^ 187a 9'.l.i3l2 i 1 03.41)0 ' ' 1874 i 1873 08 70.3 ' 1S7H 1 77,314 1877 18 :s 79.078 71.500 1.170- 00.543 ' 74.839 18.su 01.9.35 1 l.'"8l , 00,305 1 JSSd 1 07.01 1 1 ' 18.s;j ! 81. .322 ! 1 1««4 72.009 1 itna 1 73.973 J ' l«8fl 1.048.458 70.137 ; " 70.137 K ^ 148 THE UNITED STATES AND ffl II Is . 000000 i e*»ooi?« NOrs« ► IB 10 in 00 -17] s OiS'-st-si 3 ^ •» ?. ^1 S5 K oil S^i ^?* q c *»» 4 1 1 I'' ■r Q s o s c c . 5 . onocfl :»«<■* 1 II-ss aeasooo-^05 s ost-t-*05r5 ■* ■<)i »(< M 10 >a cJ t-'cqaoVn"'* 5^ 8§g5?8 .3t ft-ioooiao -< LT "-I t- «-<«00«5O to l^0>" «"»'«" ^F^F-1.-|rtfH «» oooopo ■5 e l 05 55 f^ • ocseq^oow ■g ,5 t-"ojia'40'i'"ii ;^ sococo 8 n M * m M ll Nt3-" loao ; : :iOt- 888 ; i l88 ?§3 i : ;8i ci't-'— ; --fsj Olio ; : :«iii ot-xa)0' 1 Ti «'4< h- 1; ic M -1 fix <-! t-»S10«"J'C5«'30S laaxw^oofCM ^" M la -2 1- •(■ X 0! :; ~ ri ' w ia_a>_n_t^?ic)cir:_ * — 1 n io-f"«C'-«o'»er ri '10" laxooiia oiaxoc>aoc-ilN0SOt»t» q.»« 95 x_35_S!_r-_« ■* N *^IOOXC0 X«30 § ^^ t*f-i p^ 00 CO CC kC oo XCBf-l ^ •* 10 ■* O 93 ■* "f » >-' I 9» iaes>«sr-'«93 i a « <* >c ® t- X o» c -> « t"t-t-t-t-t-t-XXX Qoaxxxxxx XX i?a n S Si. I «3 SI ^ 5 ^, * » X ig §«£5q o o ■sriM K ^2 2x22 X jx =5 5 85222 33t»« ff '2222 2 ccciaa :«i3 I ill ■ .0 i 3 » ■ e? 22 2 S§§5; 3 3 =1 5c3i I '50 THK USITEl' STATE> AND a I ■3 2 J n-»W JO ON : :S3 ^ 1 •annA ^ s ■«]iiiTitiox : 85 li s a 8":S •09K JO ON , « .-=* 5 ••ni»A .""lOi o Eh •sSsunox '33 Si ■j<>qinD{{ :8 :S| ■new JO ON 2 : 3 .S3?i§l •OniB^ •93«traoj^ 95?|S|! s :a35 ■jaqoiDfj oeRjooN ^||S|3 •eajBA sssa •saonnox. jaqmn^^ ^ .M 3 « 5 lA OO ^M •TOKJOOJ4 ■anpiA OQ i^ 2 O » s ■* ■9»nanox •jeqiDON 0030 3 K o jg 5i • •2'2-^ |?|1a azzxc (I, JS n 1' ® s a B a : O b §2. S-2 •• s 5 S • •< ii «4 O.S5SS3 J, = i "J s S S ft sS .i« 5.H irt -25 5> X — - *) SrS25il i S -a S C a 04 _^_ i I '"' s a "5 c $ » 3; ^ 9 tft c^ 1 n to S S,*,3 '^ "(i '11 i i a ■•> H > S ssf sag s d or xmsa-* r; >• - a a o ■°*K JO 'ON CI a '> 8 p. ^ k a 0=3 : S 1. 3 b,^ s a i THK SOU UiEA^ ; <:r.\ FISHER'KS. n;i TABLE G. Quantity and value of foreign caught fish imported Into the United States from the British North American Possessions other than British Columbia, for rear end- log June 30, 1886 la Foreign Ves.ieta: Into Northern border districts Into Atlantic districts Total In foreign vessels In American Vessels, Into Northern border districts Into Atlantic diarricts Total in American vessels Total in American and foreign vessels Brought in cars Grand Total 9 Pn 6.-54 1,C9;J,820 1,183,474 15S,4ai 353,210 508,691 3,692, 165 482.577 2,174,742 t SatvV. 5rPi< eae .X'^'^^ >A.»te'--' ATLANTIC OCJ^AN t/ f^-> ^0 ■ ai "