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 enre 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, 394. 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 Gut of Canso Headland Theory- exclude American fishermen from all bays and even from all waters within lines drawn 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 1 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 Legislation. 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 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. For. Rel. 1870, 408. tion 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 gov ernment 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."1 Instructions of 1870. 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 miles of land. In view of the claims previously made by the British 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 Action of Colonial 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 Authorities. 1 For. Rel. 1870, 419–420. 2 Id. 421. Id. 421-422. transshipping their cargoes of fish under the system of bonded transit which had long been in existence.' Commission. When the Joint High Commission, which The Joint High negotiated the Treaty of Washington, met on February 27, 1871, the dispute as to the fisheries was one of the subjects that had been placed within its cognizance. ish Commissioners. The British commissioners were instructed Instructions of Brit- that the two chief questions were: "As to whether the expression 'three marine miles of any of the coasts, bays, creeks, or harbors of his Britannic Majesty's dominious' should be taken to mean a limit of three miles from the coast-line, or a limit of three miles from a line drawn from headland to headland; and whether the proviso that 'the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever,' is intended to exclude American vessels from coming inshore to traffic, transship fish, purchase stores, hire seamen, etc." While a preference was expressed for the conclusion of a definite understanding upon the disputed interpretation of the convention of 1818, the British commissioners were authorized to propose that "the whole question of the relations between the United States and the British possessions in North America, as regards the fisheries," should be "referred for consideration and inquiry to an international commission, on which two commissioners, to be hereafter appointed, in consultation with the government of the Dominion, should be the British representatives." As it was not probable that such a commission would be able to report, and that a treaty could be framed, before the commencement of the fishing season of 1871, the British commissioners were authorized to agree upon some means, by licenses or otherwise, by which disputes might in the mean time be avoided.2 American Commissioners. In the instructions to the American comInstructions of missioners, the following grounds were taken: 1. That the acquisition of the inshore fisheries for the American fishermen was of more importance as removing danger of collision than on account For. Rel. 1870, 422-434. Lord Granville to Her Majesty's High Commissioners, February 9, 1871. (Papers relating to the Treaty of Washington, VI. 373–374.) |