4, .-+ • THE FISHERY QUESTION: ITS IMPERIAL IMPORTANCE. BY J. G. BOURINOT, CCEBK OF THE CAJfADIAIT HOUSE OF COMMONS ; COBEESPONDIirG SECRETARY OF BOXAL COLONIAL INSTIXCTB; HONOBABT SECRETART OF THE BOXAL SOCIETY OF CANADA. {Reprinted from The Westminstf^i Review for April 1886.) OTTAWA: J. DURIE k SON r' A IT THE FISHERY QUESTlOxN ITS IMPERIAL IMPORTANCE. 1. President ClevelancVs Message to Congress, December 9 l«8o. Congressional Record, Washington, U.S. 2. Pctjjers respecting the Fishery Question. Canada Sessional Papers, No. 101. Ottawa. 1885. 3. Report of the Department of Marine and Fisheries. Canada Sessional Papers, No. 9. Ottawa. 1885. 4. Trade and Navigation Returns. Canada Sessional Papers No. 2. Ottawa. 1885. 5. Report on the Fishery Articles of Treaties between Great Britain and the United States. Bv W. F. Whitaker Commissioner of Fisheries. Ottawa^ 1870. ' G. Record of the Proceedings of the Halifax Fisheries Com- mission. English Commons Papers, 1877. 7. Proceedings of the Royal Colonial Institute, Vols. IV. and IX. London. rpHE fisheries of British North America have been the subject X of international controversies ever since the commencement of the eighteenth century. France was the first amoncr European Powers to avail herself of the riches to be found in the waters which wash the eastern shores of the noble domain which she once possessed on the North American continent. From the earliest days of which we have any accurate historical record Basque and Breton fishermen have toiled on the prolific banks of Newfoundland. It was in the days of Queen Anne thai the B 4 Tlie Fialtery Question : ambition of France received the first ^reat blow in America, and England obtained control of the most valuable fisheries of the New World. It has been often questioned whether Englnnd, after all, received any snbstanti;d advantai,'es from the victories which, during the war of the Spanish Succession, humbled the pride of the Grand Kinij, and 2[ave to Alarlborouirh an eternal fame. In Southey's well-known poem little Peterkin but voiced the puijlic sentiment of the century when, after listening to old Kaspar^s account of Blenheim, he sagely asked, '• but what good came of it at last?" We all know that the issue was the Treaty of Utrecht — that much-abused emanation of the diplomatic in- trigues of Hailey and 8t. John. Professor Seeley, however, in his very suggestive work on the "Expansion of England," does not place himself among those historical writers who have nothing but censure for the conditions of that famous instrument. In his opinion this treaty marks one of the important epochs in the history of England's greatness. He looks upon the war as "in reality the most business-like of all the contests in which England ever engaged/' Much is certainly to be said in support of his argument, that the successful accomplishment of the designs of Louis Quatorze on the crown of Spain would have closed *' almost the whole New World to the English and Dutch, and thrown it open to the countrymen of " Colbert, who were at that moment exploring and settling the Mississippi." By the signing of the Treaty of Utrecht, however, the ambitious plans of the Fr(!nch King were foiled, and England entered on a new career of colonial and maritime greatness. Englishmen in these days will hardly care to dwell on that part of the treaty wdiich induced England to enter, as a com- petitor with Spain, on the infamous slave trade. All of us, however, will recognize the value of the provisions which gave England the undisputed possession of Newfoundland as well as of Nova Scotia, then known by the historic name of Acadie. Here was the commencement of that new Dominion which in later times was to stretch across the northern half of the continent, and in a measure compensate England for the loss of those colonies which in the davs of Queen Anne were strucjcfling to establish themselves on the Atlantic coast from Massachusetts to the Carolinas. Here for the first time the fishery question makes its appearance in history. J?y the Treaty of Utrecht France gave up Newfoundland to Great Britain, but at the same time received, certain privileges on the coast as essential to the prosecution of the fisheries which she valued so highly. As a base of opera- tions for this great industry, she retained possession of He Royale, now known as Cape Breton, and of the islets of St. Pierre and Me(|uclon, ofi" the southern coast of the Prima Vista I fa Inipi't'hd Itnportnnce. 5 of the early navigators. Half a century passed, and the battle between France and England for the supremacy in xVmerica was continued on the sliores of tiie St. Lawrence and of Lake Cham- plain. At last, Louisbourg, Quebec, Montreal, and less important French posts fell before the victorious soldiers of England, and when th'j Treaty of Paris was signed in 17G'3, of all the posses- sions France once owned on the St. Lawrence and by the sea, there remained to her only two rocky islets otf the coast of New- foundland. To St. Pierre and Mequelon, insignificant as they look on the map, she has always clung with great pertinacity whenever it has been a question of a new treaty between herself and Great Britain. The privileges she obtained by the Treaty of Utrecht, of participating in the fisherins of Newfoundland, and of frequenting a limited range of coast for purposes solely con- nected with the prosecution of those fisheries, have remained in force up to the present time, with a few modifications necessary to preserve peace and order on the shores of the island, where a small British population has grown up in the course of years. St. Pierre is now a place possessing many of the characteristics of a port on the Breton shores, and is the headquarters of a naval squ£.dron for the protection of the large fleet of French fishing vessels which frequent the waters of Newfoundland from spring to autumn. This little island has all the essential features of a French colony — a commandant, a staff of minor ollicials, and several gens d'arnies. Its existence for nearly two centuries is very clear evidence of the importance France still attaches to the prosecution of the fisheries in North America. Disputes have often arisen between British and French fisher- men as the consequence of the concessions made originally by this famous Treaty of Utrecht. The Government of Newfound- land has deluged the Colonial Office with dispatches on the subject, and several Com mi'-sions have been appointed to prevent disputes. If Newfoundland were a portion of the Dominion of Canada, or was able to otFer anv larijje inducements to immiora- tion, we should probably hear more (;f the discontent that crops 'ip from time to time in the island, and the matter might assume a more serious i.spect ; but as it is, the whole question has never received any at;ent'<>n outside the Foreign and C(jl()nia.l Oltices, and a new Convention is (juietly arranged, as was tiie case a few weeks ago, for the purpose of tiding over difficulties as they arise. It is not with the fishery difficulty between France and Newfoundland that we purpose to deal in this paper, but with a much larger Question affecting the interests of the most important dependency of the empire, as well as those of the great island itself which still stands sullenly apart from the confetierated pritvinces. This cpiestion has arisen B-2 6 The Fisher ij Question : during the hundred years since the United States became inde- pendent of Great Britain. As long as the old colonies remained in the British Emjnre they had a right to participate in the valuable fisheries found on the coasts of Nova Scotia and other parts of the British North American dominions. Until the War of Independence, and indeed for many years afterwards, the fisheries off the Atlantic coast of the United States wore valuable, and sufficiently engrossed the enterprise and industry of American fishermen, and there was no occasion to go beyond their own territorial limits ; but as the population of Nev/ England increased, and the American fisheries became less prolific, it became necessary to seek fresh sea pastures in order to supply the urgent demands of commerce. Then the people of the American coast, especially of Maine and Massachusetts, looked longingly to the rich fisheries owned by the countries which remained faithful to the Empire, and have ever since ex- ercised their ingenuity to obtain access to British American waters. The history of the efforts made by the United States to obtain the liberty of fishing on the coasts and within the bays over which Great Britain claims, as an incident of her sove- reignty, full territorial jurisdiction, affords abundant evidence of the value their people have heretofore attached to the fisheries of Canada and Newfoundland. All that diplomatic or legal ingenuity could devise in the shape of argument has been brought forward to influence Great Britain to concede the use of these fisheries to the fishermen of New England, as long and on as easy terms as possible. As we shall see in the course of this paper, Great Britain has in this, as in other negotiations affecting the relations between herself and the United States, acted in a spirit of compromise and conciliation which at times, in the opinion of some Canadians, seemed likely to lessen the value of the fisheries, and consequently jeopardize the interests of the British people who own this great source of national "Wealth and greatness. But the statesmen of Canada as well as of Great Britain have invariably been ready to take into con- sideratiou the importance of having the most amicable under- standing on all disputed points with a people so nearly allied to them by language and interest, and have made concessions to the United States which perhaps some of their citizens have not always fully appreciated at their full value. When Great Britain formally acknowledged the independence of the Thirteen Colonies, and it became necessary to consider the question of the fisheries, the United States obtained " the liberty " to take fish on the coasts of Newfoundland, but not to dry or cure the same on that island. They were also allowed Its Imperial Importance. 7 " the liberty" of taking and curing fish on the coasts and in the bays and creeks of all British possessions in North America as long as the same remained unsettled. Their right " to enjoy unmolested the fisheries on the banks of Newfoundland and at all other places on the deep sea where the inhabitants of both countries used at any time previously to fii^h," was explicitly acknowledged in the third article of the same treat3% which was signed at Paris on September 3, 1788. During the years which elapsed between the signing of this treaty and the breaking out of the war of 1S12, the British population increased along the shores of the bays and creeks of Nova Scotia and New Brunswick, and their interest in the fisheries, enjoyed in com- mon with the Americans, became very much greater. When the war came to a close the question of the fisheries was revived, and Great Britain at once, in accordance with the rules of inter- national law, considered that any " liberty " formerly extended to the United States had naturally terminated, and refused, in obedience to the demands of the British population now largely engaged in the fisheries, to grant to the Americans "gratui- tously" the privileges they formerly enjoyed "of fishing within the limits of British territory or of using the shores of the British territories for purposes connected with the fisheries/' At the same time they very properly refused to consider the remarkable claim set tfp by the United States Government, of "an immemorial and prescriptive right to the fisheries." It is hardly necessary to observe that any rights enjoyed by the people of the old colonies in common with other British subjects ceased in those countries or waters which were still British pos- sessions when the former became independent. When no under- standinoj could be reached durino^ the negotiations which ended with the Treaty of Ghent in 1814, on account of the untenable claims set up by the American Commissioner, Great Britain instructed the officers of her fleet stationed in British American waters not to interfere with American vessels on the Newfound- land banks, or in the Gulf of St. Lawrence, or on the high seas, but to exclude them from the harbours, bays, and creeks of all His Majesty's possessions. Several American vessels were sub- sequently captured for trespassing in British waters, and the Government of the United States was at last forced to come to an amicable arrangement on a question which might at any moment lead to a serious international difficulty. The issue was the Convention signed by England and the United States on October 20, 1818, in which the rights of these two nations were clearly defined. By the first article of that treaty it was agreed that the inhabitants of the United States should have for ever, in common with British subjects, the liberty to take and euro H The Fi.ilu'i >/ Qiit stion : fish on certain parts of Newfoundland and Labiador, and on the coasts of the Magdalen Islands, under a few restrictions, on which it is not necessary to dvvel), since no serious differences have arisen on the subject. In the same article the United States " renounce for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure tish on or vntkin three marine miles of any of the coasts, bays, creeks, or harbours " of the British dominions in America not included within the limits just mentioned. At the same time American fishermen were to be permitted " to enter sucli bays and harbours for the purpose of shelter and of repairing damages therein, of purchasing wood, of obtaining water, and for no other purpose wlia^ever." Now, the whole controversy in past years between Great Britain (representing the Dominion of Canada and Newfound- land) and the United States has tvtrned upon the true effect of the renunciation on the part of the latter "of any liberty here- tofore enjoyed to take, dry, and cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbours" of British North America, In order to understand the importance of this point — wliich is in effect the fishery question constantly cropping up when all temporary arrangements like the Washing- ton Treaty of 1^71 cease between Canada and her neighbours — it is necessary to study the natural configuration of the eastern or maritime provinces of British North America. Looking at the map, we find first of all the large island of Newfoundland standing like a sentinel at the approaches of the Gulf of St. Lawrence. The French and Americans have free access, as a matter of right, to the Grand and other banks, and certain privileges of catching and curing fish on the coasts. American fishermen frequent the Grand Banks and come at times into the bays and harbours for repairs and bait; and the only important question that has arisen with respect to Newfoundland is the value of these privileges within her territorial limits. Leaving Newfoundland, we come to the fishing-grounds much frequented by the Americans for the mackerel, herring, and other fisheries. We see the fine island of Cape Breton, separated from the main- land of Nova Scotia by a narrow strait known as the Gut of C'vnseau, and noted for its wild, picturesque beauty. This pas- sage, whose average breadth does not exceed two and a half miles, takes us into the Straits of Northumberland, which lie between Nova Scotia and the fertile Prince Edward Island. We are now in the Gulf of St. Lawrence, which receives the waters of the noble artery of the commerce of the provinces of Quebec and Ontario, and of the rich country which is known as the Great West. In the middle of this gulf arc the Magdalen hit 1 mptrud Impiniance. 9 Inlands, the home of venturesome Canadian fisliennen. The coast of New Brunswick, which forms tlie western boundary of the Ljulf, is indented l>y several hays, one of which — the liay des Chaleurs, so named by the French navigators in the early days of New France — is one of the most pictures(jue estuaries and the most proliHc iishing-oroumis of the continent. In this bay, and on the coasts of (Jape Breton and Prince Kdward Island, the American fishermen during this century have dragged up fish to an enormous value. But leaving the (iulf of St, Lawrence and passiuL^ around the southern coast of Nova Scotia, we come to the Bay of Fundy, which is a great arm of the sea, bounded on the north by the province of New Brunswick, and having a small portion of the United States teriitory o[)posite to its southern headland. Tiiis bay is celebrated for its tides, which rise to the height of seventy feet, and rush into the bays and harbours that indent the coasts with remarkable velocity. One of the headlands (Blomidou) has been immortalized oy the poet Longfellow in his exquisite poem on a sad episode itj the history of the province of N ova Scotia, which forms the southern boundary of the bay. As in the days of the Acadian farmers of Grand Pre, Pleasantly gleams in the soft sweet air the Basin of Minus. '^ All the valuable fish to be caught in North America frequent this arm of the sea and the waters of the Gulf of St. Lawrence. These are the great Hshing-grounds so long envied by the fisher- men of New England. Now, it is admitted that the hirgest quantities of fish are found within three marine miles from the coasts and bays of the maritime provinces. It is clearly shown by all authorities on international law, judges who have interpreted that law, or statesmen who have negotiated treaties, that every nation has the right of exclusive dominion and jurisdiction over those I3ortions of its adjacent waters which are included by " promon- tories " or headlands within its territories. Accordingly, Gre-\t Britain has always maintained that the three marine miles from the coasts, bays, and creeks of her possessions must be measured from the headlands or entrance of such classes of indents. But this correct assertion of the territorial and maritime jurisdiction of the Dominion of Canada, as a section of the British Empire, is extremely unpalatable to the United States, since it shuts them out practically from the fishing-grounds to which they attach the most importance — from the Bay of Chaleurs, for instance, and other parts of the Gulf of St. Lawrence, where the most important inshore fisheries exist. In their anxiety, then to 10 The Fishery Question : get free access to these 'private fislieries of Canada, tliey have heretofore raised the issue, that the line of demarcation between exclusive and common water should not be measured from the headlands of bays, but should follow the shores of those iiidents as if they were sinuosities of the coast. If their contention were founded on any sound principles of international law, or sustained by any generally admitted authority, then it would be difficult to exclude them from the most important ii>hing-grounds of America. We do not propose to go at any length into this question, inasmuch as it is only necessary to refer our readers to all the recognized authorities on the subject to prove that the issue raised by the Americans is entirely untenable. Their own jurists and legal authorities have disposed of the question in a sense favourable to the British interests involved in the matter. That well-known authority Wheaton states the rule very clearly : *'The maritime territory of every State extends to the ports, harbours, bays, mouth of rivers, and adjacent parts of the sea, in- closed by headlands belonging to the same State." Chancellor Kent, an equally hii>h authority, admits that bays like Delaware Bay, which may be compared in many respects to Bay des Chaleurs, is wholly within the territoriid jurisdiction of the United States, and that this jurisdiction extends for three miles seaward from its headlands, Capes May and Henlopen. The same rule applies to Chesapeake and Massachusetts Bays, which are also inlets of large size. The eminent lawyer and statesman, Daniel Webster, admitted, when the question came under his notice in 185: New England — and many of the schooners of Gloucester and Marblehead are even yet manned by Nova Scotians — and made the commerce of the maritime provinces in the course of years very largely dependent on the United States. In those days the provinces were isolated from each other, and a commercial or political union between them seemed still far off. In the absence of such a union, the people were not ani- mated by a national feeling, but some of them began to consider whether a closer connection with the United States was not among the probabilities of the future. Manufactures were brought in large quantities from the United States in return for the natural products sent them by the provinces, and there was no prospect of the growth of a native manufacturing industry to add to the wealth and give additional employment to the people, large numbers of whom were annually leaving the country for the manufacturinfj: districts of New Ensfland. Whilst the treaty lasted the balance of trade with respect to manufactured goods amounted to £18,0(10,000 sterling in favour of the United States. The treaty came to an end iu 1865 by the action of the Washington Government. Its repeal was notoriously hastened by the desire that generally prevailed among a large number of people in the United States to punish, if possible, the provinces for the sympathy which the majority of them were believed to have extended to the South durin