1 sary to admit American fishermen to the liberty which they would enjoy under the treaty, the Government of the United States to admit British subjects to the exercise of the right of fishing in the American waters specified in the treaty, and to recommend that Congress authorize the refunding of duties collected after July 1, 1871, on fish and fish oil the produce of Canada and Prince Edward Island, if a similar arrangement was made with respect to the admission into the British possessions of fish and fish oil being the produce of the United States. Sir Edward Thornton, on behalf of his government, accepted this proposal, saying, however, that the ultimate decision of the question of immediately granting fishing rights in the British waters must rest with the colonial governments, just as the refund of duties paid on fish in the United States after the 1st of July was contingent on the action of Congress;2 and he subsequently stated that, though Her Majesty's gov ernment continued to hold that, under the convention of 1818, United States fishermen were prohibited from frequenting colonial ports and harbors for any purposes but shelter, repairing damages, purchasing wood and obtaining water, the prohibition would not be enforced during the pending season, and that American fishermen would be allowed to enter Canadian ports for the purposes of trade and of transshipping fish and procuring supplies, as well as to fish outside of the threemile limit in bays more than six miles wide at the mouth.3 On July 25, 1871, the government of Prince Edward Island decided not to enforce the fishery laws during the pending season and while the treaty was under consideration by the colonial legislature. The government of the Dominion, however, did not assent to Mr. Fish's proposal, and the proffered arrangement consequently was not carried into effect.5 For a time the question raised as to the jurisdiction of the Geneva Tribunal to entertion. tain the indirect claims presented by the Adoption of Legisla United States rendered it doubtful whether the Treaty of Washington itself would ever go into operation. This obstacle, For. Rel. 1871, 485. For. Rel. 1871, 486. 3 Sir Edward Thornton to Mr. Fish, For. Rel. 1871, 490. 4 For. Rel. 1871, 492. For. Rel. 1872, 215, 217, 219–222. however, having been removed, legislation was in due time. adopted to put all the provisions of the treaty in force. Acts in relation to the fishery articles were passed by the Imperial Parliament and by Canada and Prince Edward Island.' These acts were to take effect at a time to be appointed by proclamation, in order that the beginning of their operation might be simultaneous with that of the legislation to be enacted by the United States. The corresponding legislation on the part of the United States was adopted on March 1, 1873, to take effect on the 1st of the following July, the beginning of the new fiscal year. On the 3d of March 1873 the committee of the privy council of Canada recommended that, pending the coming into force of the United States act, American vessels should not be prevented from fishing within the three-mile limit. On the 7th of June 1873 Mr. Fish and Sir Edward Thornton signed at Washington a protocol in which, after reciting the reciprocal legislation on the subject, they declared that the fishery articles would take effect on the 1st of the following July. The colony of Newfoundland, having passed the necessary laws, was admitted to the benefits of the treaty and the act of Congress on the 1st of June 1874.5 Reciprocity Negotia tions. The appointment of the mixed commission under Article XXIII. of the treaty was postponed not only by the delay in the adoption of the legislation required to give the fishery articles effect, but also by the consideration of a draft of a treaty for the recip rocal regulation of trade between the United States and Canada, with provisions for the enlargement of the Canadian canals and for their use by United States vessels on terms of equality with British vessels. By the fourteenth article of this project it was provided that when the ratifications of the new treaty should have been exchanged and the necessary legislation adopted to give it effect, the articles of the Treaty of Washington in relation to the Halifax commission should become For. Rel. 1873, I. 402, 403, 407. 217 Stats. at L. 482. 3 For. Rel. 1873, I. 418, 419. 4 Treaties and Conventions, 1776-1887, 498. 5 Treaties and Conventions, 1776-1887, 499; For. Rel. 1873, I. 419, 427, 429; 1871, 554, 557, 558, 559. All of Labrador, outside of the province of Quebec, came into the arrangement as part of the colony of Newfoundland. For. Rel. 1874, 567, 572, 573; 1875, I. 643. null and void. President Grant communicated this project to the Senate on the 18th of June 1874, and although it was submitted as an unsigned draft, in order to ascertain whether the Senate would advise and consent to its conclusion either in the form in which it stood and in which it was proposed by the British plenipotentiaries, or in some other and more acceptable form, he declared that it had "many features to commend it to our favorable consideration." The Senate, however, removed the injunction of secrecy from the project, and postponed action on it till the next session of Congress, when, on February 3, 1875, it resolved that it was not deemed expedient to recommend the negotiation of the treaty.' Halifax Commis sioners. The two governments were thus left to execute Appointment of the the Treaty of Washington by the appointment of commissioners. For this purpose no time was fixed by the treaty, except as to the third commissioner, who, unless he was conjointly appointed by the President of the United States and Her Britannic Majesty within a period of three months after the fishery articles took effect, was to be named by the diplomatic representative of AustriaHungary in London. As the articles took effect on July 1, 1873, the period of three months expired on the last day of September in that year. Before the 1st of July Mr. Fish informed Sir Edward Thornton that if Her Majesty's government would suggest some names the Government of the United States would consider them with a view to reaching an agreement; but as no effective steps in that direction were taken, Mr. Davis, then acting Secretary of State, on the 7th of July addressed to Sir Edward a formal note, in which he proposed the names of the ministers of Mexico, Russia, Brazil, Spain, France, and The Netherlands, at Washington, as a list from which to choose a third commissioner by conjoint action.2 In a conversation with Mr. Fish at Washington on the 5th of August, and in a letter of the 19th of the same month, Sir Edward Thornton asked that the United States would consent to the appointment of Mr. Maurice Delfosse, the Belgian minister at Washington. Mr. Fish, "while entertaining a high personal regard for the character and abilities of the Belgian minister," objected to his selection on the ground that "there were reasons in the 1 For. Rel. 1874, 553, 564; 1875, I. 653. political relations between his government and that of Great Britain why the representative of the former could not be regarded as an independent and indifferent arbitrator on questions between the government of Her Majesty and the United States." Mr. Fish also adverted to the fact that, when the Joint High Commission was in session in Washington, the Earl De Grey, during the discussion of a proposed reference to one or more heads of foreign states, after mentioning several, said he would not name Belgium, because of the supposed relations of that power to Great Britain, which might make it unacceptable to the United States as a referee. On the 26th of August Sir Edward Thornton made a formal reply to the note of Mr. Davis of the 7th of July, which he had transmitted to London. In this reply Sir Edward said that, as the matters which were to be considered by the commission deeply concerned the people of Canada, it was necessary to consult the government of the Dominion on a point of so much importance as the appointment of the third commissioner. This had caused some delay, but he had received a communication from the Governor-General of Canada, to the effect that the government of the Dominion strongly objected to the appointment of any of the foreign ministers at Washington as third commissioner, and preferred the alternative of a nomination by the Austrian ambassador at London. Mr. Fish protested against this announcement as an abandonment of the effort to select a third commissioner by conjoint action; but the three months soon passed away, without a selection having been made, and Sir Edward Thornton stated that, the two governments having failed to agree, the law officers of the Crown were of opinion that the treaty peremptorily required the nomination to be made in the alternative mode. Here, owing to the pendency of the reciprocity proposal, the correspondence in relation to the appointment of the commission was suspended till April 12, 1875, when, the Senate having advised against the conclusion of a new treaty, Sir Edward Thornton announced that Her Majesty's government deemed it desirable that the arbitration should proceed, and he accordingly proposed that steps should at once be taken for the constitution of a commission, and suggested that an identic note be ad 1 Mr. Fish to Sir Edward Thornton, August 21, 1873, Sen. Ex. Doc. 44, 45 Cong. 2 sess. British Commissioner and Agent. American Commis dressed to the Austrian Government by the representatives of the United States and Great Britain at Vienna, requesting that the Austrian ambassador be authorized to proceed with the nomination of the third commissioner. By a further note of the 19th of July 1875 Sir Edward conveyed information of the appointment of Sir Alexander T. Galt as British commissioner, and of Mr. Francis Clare Ford as British agent, and asked to be informed of the names of the persons who were to act in similar capacities on the part of the United States. To this request Mr. Fish was at the time unable formally to respond. The position of commissioner on the part of the United States was at first offered to and accepted by Mr. John H. Clifford, of Massachusetts, but, owing to the delay caused by the reciprocity negotiations, he died without having entered upon the discharge of its duties. On May 8, 1876, Mr. Fish announced the appointment of Mr. Ensign H. sioner and Agent. Kellogg and Mr. Dwight Foster, both of Massachusetts, as commissioner and agent, respectively, on the part of the United States. The third commissioner yet remained to be selected. On the 1st of February 1877, however, Mr. Fish informed Sir Edward Thornton that, if his government should propose the appointment of Mr. Delfosse, the United States would not object to the selection. Sir Edward thereupon communicated with his government, and also, with the assent of Mr. Fish, called upon Mr. Delfosse, and ascertained that he would serve; and it was agreed that a suggestion should be conveyed to the Austrian ambassador at London, with whom the appointment rested, that the nomination of Mr. Delfosse would be agreeable to both parties. This plan was duly executed, and on the 2d of Third Commissioner. March 1877 the Austrian ambassador appointed Mr. Delfosse as third commissioner. Mr. Fish on the same day extended to Mr. Delfosse, in an unofficial note, his "warmest congratulations" on the appointment.1 Meeting of the The first meeting of the commission was held in the legislative council chamber at Halifax on the 15th of June 1877. Both the commissioners were present, as well as the agents of the two govern 1 Sen. Ex. Doc. 100, 45 Cong. 2 sess. |