other nations, conflicts either with the letter or the spirit of our treaty obligations." a Mr. Stevenson duly communicated to Lord Palmerston the purport of his instructions, including the part embraced in the foregoing quo tation. Not long afterwards the British Government submitted to the law officers of the Crown a series of questions, embraced in the report adopted by the House of Assembly of Nova Scotia, to which Mr. Forsyth had referred when he spoke of the "assertion" of the provincial legislature. In the series of questions there was the following: "4. Have American vessels, fitted out for the fishery, a right to pass through the Gut of Canso, which they cannot do without coming within the prescribed limits, or to anchor there or to fish there; and is casting bait to lure fish in the track of the vessels fishing, within the meaning of the convention?" August 30, 1841, the law officers replied: "4. By the treaty of 1818 it is agreed that American citizens should have the liberty of fishing in the Gulf of St. Lawrence, within certain defined limits, in common with British subjects; and such treaty does not contain any words negativing the right to navigate the passage of the Gut of Canso, and therefore it may be conceded that such right of navigation is not taken away by that convention; but we have now attentively considered the course of navigation to the Gulf by Cape Breton, and likewise the capacity and situation of the passage of Canso, and of the British dominions on either side, and we are of opinion that, independently of treaty, no foreign country has the right to use or navigate the passage of Canso; and attending to the terms of the convention relating to the liberty of fishery to be enjoyed by the Americans, we are also of opinion that that convention did not either expressly or by implication concede any such right of using or navigating the passage in question. We are also of opinion that casting bait to lure fish in the track of any American vessels navigating the passage would constitute a fishing within the negative terms of the convention." e It does not appear that this document was ever officially communicated to the United States, although the Government of Nova Scotia continued to agitate the question of prohibiting the passage of the a Mr. Forsyth, Sec. of State, to Mr. Stevenson, min. to England, No. 89, Feb. 20, 1841, S. Ex. Doc. 100, 32 Cong. 1 sess. 106, 108. Mr. Forsyth inclosed with his instruction a copy of the journal and proceedings of the house of assembly of Nova Scotia at its session of 1839-40. Mr. Stevenson, min. to England, to Lord Palmerston, Sec. of State, March 27, 1841, S. Ex. Doc. 100, 32 Cong. 1 sess. 113. Sabine's Report on the Fisheries, 228, 229, 230. d For. Rel. 1873, III, 284. strait. The subject, however, was dropped after the conclusion of the reciprocity treaty of 1854. In 1870 Mr. Jackson, United States consul at Halifax, four years after the termination of that treaty, said: "It has been intimated that still further restrictions will be imposed upon our fishermen, and that an attempt will be made to exclude them from the Strait of Canso. . . . The Strait of Canso for more than a century has been open as a public highway to the vessels of all friendly nations."" The question of the fisheries was again set temporarily at rest by the treaty of Washington of May 8, 1871. The unratified treaty of February 15, 1888, contained the following clause: "Art. IX. Nothing in this treaty shall interrupt or affect the free navigation of the Strait of Canso by fishing vessels of the United States.” c 3. RECIPROCITY TREATY, 1854. § 165. With a view to adjust the various questions that had arisen concerning the convention of 1818, the British Government in 1854 sent Lord Elgin to the United States on a special mission, and on June 5, 1854, he concluded with Mr. Marcy, who was then Secretary of State, a treaty in relation to the fisheries, and to commerce and navigation. By the first article of this treaty it was provided that, in addition to the liberty secured to the United States fishermen by the convention of October 20, 1818, of taking, curing, and drying fish on certain of the coasts of British North America, the inhabitants of the United States should have, in common with the subjects of His Britannic Majesty," the liberty to take fish of every kind, except shell-fish, on the seacoasts and shores, and in the bays, harbors, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and of the several islands thereunto 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 Magdalen 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." The liberty thus defined applied solely to the sea fishery. The salmon and shad fisheries, and all fisheries in rivers and the mouths of rivers, were expressly reserved for British fishermen. a Sabine's Report, 263, 287–290. For. Rel. 1870, 430. S. Ex. Doc. 113, 50 Cong. 1 sess. 135. On the other hand, it was provided by the second article of the treaty, that British subjects should have, in common with the citizens of the United States, "the liberty to take fish of every kind, except shell-fish, on the eastern sea coasts and shores of the United States north of the 36th parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbors, and creeks of the said sea coast and shores of the United States and of the said islands," on precisely the same conditions, including the reservation of the salmon, shad, and all river fisheries, as were made with respect to the reciprocal liberty secured to the American fishermen by the preceding article." By the third article of the treaty, provision was made for reciprocal free trade between the United States and the British colonies in North America in various articles, being the growth and produce of either country; and by the fourth article, certain stipulations were established as to the navigation of the River St. Lawrence and Lake Michigan, and the use of such Canadian canals as formed part of the water communication between the Great Lakes and the Atlantic Ocean. Termination of treaty. This treaty came into operation on March 16, 1855. reciprocity It was terminated March 17, 1866, in accordance with a notice given by the United States in conformity with its provisions. From 1866 to 1869 the Canadian government granted licenses to American fishing vessels, at first at the rate of 50 cents and finally at the rate of $2 a ton for the enjoyment during each season of the same liberties as they had exercised under the reciprocity treaty. Licenses. tion. In 1868, however, the Dominion Parliament passed an "act respectDominion legisla- ing fishing by foreign vessels," which was amended in 1870, and which practically reenacted, with increased stringency of regulations and penalties, the Nova Scotian statute of 1836. a For the proceedings of the commissioners who decided upon and denoted the reserved places under the treaty, see Moore, Int. Arbitrations, I. 426–494, where the awards are given. The maps are in the Department of State. Dip. Cor. 1865, I. 93, 184, 259. See, in this relation, a pamphlet entitled "Letter to the Hon. William H. Seward, Secretary of State, in answer to one from him on the resolution of the Senate as to the relations of the United States with the British provinces and the actual condition of the question of the fisheries," by E. H. Derby, January, 1867, Washington, 1867, 50 pp. with an appendix of 245 pp. containing a preliminary report on the reciprocity treaty of 1854. C Dip. Cor. 1866, I. 235; Papers relating to the Treaty of Washington, VI. 286; Mr. Hunter, Acting Sec. of State, to Mr. Thornton, Brit. min., June 12, 1868, MS. Notes to Gr. Br. XIV. 363. d For. Rel. 1870, 408, 414. Position of the Imperial Govern ment. In 1870 the system of granting licenses was discontinued," and a copy of a letter addressed by the secretary of state for the colonies to the lords of the admiralty on April 12, 1866, defining the views of the British Government as to the construction of the convention of 1818, was communicated to the United States. In this letter it was said that Her Majesty's Government were clearly of the opinion that by the convention of 1818 the United States had "renounced the right of fishing, not only within three miles of the colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek." But the question, What is a British bay or creek? was one that had been the occasion of difficulty in former times. The letter said: "It is, therefore, at present the wish of Her Majesty's Government neither to concede nor for the present to enforce any rights which are in their nature open to any serious question. Even before the conclusion of the reciprocity treaty Her Majesty's Government had consented to forego the exercise of its strict right to exclude American fishermen from the Bay of Fundy, and they are of opinion that during the present season that right should not be exercised in the body of the Bay of Fundy, and that American fishermen should not be interfered with, either by notice or otherwise, unless they are found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839. . . . Her Majesty's Government do not desire that the prohibition to enter British bays should be generally insisted on, except when there is reason to apprehend some substantial invasion of British rights. And in particular they do not desire American vessels to be prevented from navigating the Gut of Canso (from which Her Majesty's Government are advised they may lawfully be excluded), unless it shall appear that this permission is used to the injury of colonial fishermen, or for other improper objects." It appears that instructions were given in 1870 not to seize any vessel unless it were evident, and could be clearly proved, that the offense of fishing had been committed and the vessel itself captured within three In view of the claims previously made by the British Instructions of 1870. miles of land.c a For. Rel. 1870, 408. See circular of Mr. Boutwell, Secretary of the Treasury, May 16, 1870, as to the discontinuance of licenses and the inshore fisheries, For. Rel. 1870, 411. See, also, Mr. Bayard, Sec. of State, to Mr. Fairchild, Sec. of Treasury, April 1, 1886, 159 MS. Dom. Let. 682. For. Rel. 1870, 419-420. c Id. 421. Action of colonial authorities. a Government, the United States recognized in the tenor of these instructions "a generous spirit of amity." But subsequently, during the same season, it was learned that the colonial authorities were asserting the right to exclude American fishermen from entering the ports of the Dominion, either for the purpose of obtaining bait or supplies or of transshipping their cargoes of fish under the system of bonded transit which had long been in existence." 6 "During the conferences which preceded the negotiation of the convention of 1818, the British commissioners proposed to expressly exclude the fishermen of the United States from the privilege of carrying on trade with any of his Britannic Majesty's subjects residing within the limits assigned for their use; and also that it should not be lawful for the vessels of the United States engaged in said fishery to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of their voyages to and from the said fishing grounds. And any vessel of the United States which shall contravene this regulation may be seized, condemned, and confiscated with her cargo.' "This proposition, which is identical with the construction now put upon the language of the convention, was emphatically rejected by the American commissioners, and thereupon was abandoned by the British plenipotentiaries, and Article I, as it stands in the convention, was substituted.” President Grant, Second Annual Message, Dec. 5, 1870. This article is criticised by Pomeroy, in an article on the Northeastern The allusion made by President Grant to the negotiations of the conven- a For. Rel. 1870, 421-422. For. Rel. 1870, 422-434. "Information furnished by various United States consuls in Canada shows that for a number of years past our fishing vessels have been permitted to carry merchandise, enter at the custom-houses, and buy supplies other than wood and water, but that this practice has recently been stopped." (Article by Prof. Pomeroy on the Northeastern Fisheries, Am. Law Rev. 1870-71, V. 389, 411, citing II. Ex. Doc. 1, 41 Cong. 3 sess. 422–434.) "Anticipating that an attempt may possibly be made by the Canadian authorities in the coming season to repeat their unneighborly acts toward our fishermen, I recommend you to confer upon the Executive the power to suspend, by proclamation, the operation of the laws authorizing the transit of goods, wares, and merchandise in bond across the territory of the United States to Canada; and, further, should such an extreme measure become necessary, to suspend the operation of any laws whereby the vessels of the Dominion of Canada are permitted to enter the waters of the United States." (President Grant, Second Annual Message, 1870.) |