liberty to cure and dry them in certain unsettled places within His Majesty's territory. If these liberties, thus granted, were to be as perpetual and independent as the rights previously recognized, it is difficult to conceive that the plenipotentiaries of the United States would have admitted a variation of language so adapted to produce a different impression; and, above all, that they should have admitted so strange a restriction of a perpetual and indefeasible right as that with which the article concludes, which leaves a right so practical and so beneficial as this is admitted to be, dependent on the will of British subjects, in their character of inhabitants, proprietors, or possessors of the soil, to prohibit its exercise altogether. It is surely obvious that the word right is, throughout the treaty, used as applicable to what the United States were to enjoy, in virtue of a recognized independence; and the word liberty to what they were to enjoy, as concessions strictly dependent on the treaty itself."1 1815-1818. This position Great Britain continued to Controversies of maintain. From 1815 to 1818 orders were issued by the British admiralty to seize American vessels found fishing in British waters, and though these orders were not continuously enforced, but were at various times and for various periods, generally with a view to negotiation, suspended, many seizures were actually made, and much ill feeling was engendered.2 Such was the condition of things when, on Convention of 1818. October 20, 1818, Albert Gallatin and Richard Rush concluded the convention, the first arti cle of which reads as follows: "ARTICLE I. "Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof, to take, dry, and cure fish on certain coasts, bays, harbours, and creeks of His Britannic Majesty's dominions in America, it is agreed between the high contracting parties, that the inhabitants of the said United States shall have forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands on the shores of the Magdalen Islands, and also on the coasts, bays, harbours, and creeks from Mount Joly on the southern coast of Labrador, to 1 Am. State Papers, For. Rel. IV. 355, 356. * Memoirs of J. Q. Adams, III. 119, 265; IV. March 18, 1818. and through the Streights of Belleisle and thence northwardly indefinitely along the coast, without prejudice however, to any of the exclusive rights of the Hudson Bay Company: And that the American fishermen shall also have liberty forever, to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks, or harbours of his Britannic Majesty's dominions in America not included within the abovementioned limits; Provided however, that the American fishermen shall be admitted to enter such bays or harbours for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them." By this article the United States, as it appears, "renounce 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 harbours" of His Britannic Majesty's dominions in America, not included within certain limits, within which the right to fish or to dry and cure fish was expressly reserved by the convention.1 "Neither side yielded its convictions to the reasoning of the other. This being exhausted, there was no resource left with nations disposed to peace but a compromise. Great Britain grew willing to give up something. The United States consented to take less than the whole. The most difficult part of our task was on the question of permanence. Britain would not consent to an express clause that a future war was not to abrogate the rights secured to us. We inserted the word forever, and drew up a paper to be of record in the negotiation, purporting that if the convention should from any cause be vacated, all anterior rights were to revive. It was by our act that the United States renounced the right to the fisheries not guaranteed to them by the convention. We deemed it proper under a threefold view: 1, to exclude the implication of the fisheries being secured to us being a new grant; 2, to place the rights secured and renounced, on the same footing of permanence; 3, that it might expressly appear, that our renunciation was limited to three miles from the coast." (Rush's Residence at the Court of London, Philadelphia, 1833, pp. 398-400. See, also, Am. State Papers, For. Rel. IV. 380–406.) * * Comparing the stipulations of the treaty of 1783 and the convention of 1818 we have the following results: Treaty of 1783, Article III. Convention of 1818, I. Right to take fish 1. On the Banks of Newfoundland; II. Liberty. (1. To take fish on the British coasts generally. 2. To dry and cure fish in any of the I. Right remains as under treaty of 1783. II. Liberty. On June 14, 1819, an act was passed by the Imperial Act of 1819. Imperial Parliament to carry this article into effect. It closely followed the language of the article, and provided regulations and penalties for its enforcement. After this act went into effect, several seizures were made, and from 1824 to 1826 more or less correspondence took place in regard to three vessels which, after being seized in the Bay of Fundy, were rescued by a band of armed men from Eastport, Maine.2 Nova Scotian "Hovering Act." From that time down to 1836 little trouble seems to have occurred. But in that year the legislature of Nova Scotia passed an act, commonly called the "Hovering Act," by which the hovering of vessels within three miles of the coasts or harbors was Sabine's Fisheries, 391. 2 Sen. Ex. Doc. 100, 32 Cong. 1 sess. 5, 11, 54, 55-58. sought to be prevented by various regulations and penalties;' and subsequently claims were asserted to Headland Theory- exclude American fishermen from all bays Gut of Cansoand even from all waters within lines drawn Question of Traffic. from headland to headland, to forbid them to navigate the Gut of Canso, and to deny them all privileges of traffic, including the purchase of bait and supplies in the British colonial ports. From 1839 down to 1854 there were numerous seizures, and in 1852 the home government sent over a force of war steamers and sailing vessels to assist in patrolling the coast. Reciprocity Treaty of 1854. With a view to adjust the various questions that had arisen, 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 shellfish, on the seacoasts and shores, and in the bays, harbors, and creeks of Canada, New Bruns wick, 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 exclusively for British fishermen. On the other hand, it was provided by the second article of the treaty, that British subjects should have, in common with Sen. Ex. Doc. 100, 32 Cong. 1 sess. 108. 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 Reciprocity Treaty. This treaty came into operation on March 16, 1855. 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 excised under the reciprocity treaty.2 Licenses. Dominion Legisla tion. In 1868, however, the Dominion Parliament passed an "act respecting 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 1836.3 rial Government. In 1870 the system of granting licenses was Position of the Impe- 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 conven 1 Dip. Cor. 1865, part 1, 93, 184, 259. 2 Dip. Cor. 1865, part 1, 235; Papers relating to the Treaty of Washington, VI. 286. 3 For. Rel. 1870, 408, 414. 4 For. Rel. 1870, 408. |