The Story of Newfoundland

by Earl of Frederick Edwin Smith Birkenhead

As the declaration annexed to the above treaty was often relied upon by French diplomatists, it may be conveniently set forth in this place:

"... In order that the fishermen of the two nations may not give a cause of daily quarrels, His Britannic Majesty will take the most positive measures for preventing his subjects from interrupting in any manner by their competition the fishery of the French during the temporary exercise of it which is granted to them.... His Majesty will ... for this purpose cause the fixed settlement which shall be found there to be removed, and will give orders that the French fishermen shall not be incommoded in the cutting of wood necessary for the repair of their scaffolds, huts, and fishing boats."

The title of an Act of Parliament passed in 1782 in pursuance of this treaty was also pressed into the service of the French contention:

"An Act to enable His Majesty to make such regulations as may be necessary to prevent the inconvenience which might arise from the competition of His Majesty's subjects and those of the most Christian King in carrying on the fishery on the coasts of the island of Newfoundland."

No material alteration in the position took place from 1782 to 1792, and the Treaty of Peace of 1814 declared that "the French right of fishery at Newfoundland is replaced upon the footing upon which it stood in 1792."

On these documents a very simple issue arose. According to the English contention their cumulative effect was to give the French a concurrent right of fishery with themselves upon the coasts in question. It was maintained, on the other hand, by France that her subjects enjoyed an exclusive right of fishing along the so-called French shore.

It may be said at once that the course of English diplomacy was almost uniformly weak, and was in fact such as to lend no small countenance to the French contention. Thus, for many years it was the policy of the Home Government to discourage the colonists from exercising the right which was always alleged in theory to be concurrent. Nor did the Imperial complaisance end here. The French fishermen and their protectors from time to time put forward pretensions only to be justified by a revival of the sovereignty which was extinguished by the Treaty of Utrecht. Thus, they attempted systematically to prevent any English settlement at all upon the debatable shore. For residential, mining and agricultural purposes this strip would thus be withdrawn from colonial occupation. It is much to be regretted that these claims were not summarily repudiated. The Imperial Government, however, encouraged them by forbidding any grants of land along the area in dispute. Under these circumstances the theoretical assertion of British sovereignty by which the prohibition was qualified was not likely to be specially impressive. The islanders acquiesced in the decision with stolid patience, but, undeterred by the consequent insecurity of tenure, settled as squatters in the unappropriated lands. As recently as forty years ago their title was still unrecognized, and the presence of thousands of settlers with indeterminate claims had become a dangerous grievance. In 1881 Sir William Whiteway, then Premier of the colony, paid a visit to England, and his powerful advocacy procured recognition for the title of the settlers to their lands, and brought them within the pale of the Queen's law.

The French shore cod fishery was recently so poor compared with the Great Bank fishery that French fishermen abandoned the former for the latter; and, in fact, but for a recent development of the French claim, it would have been possible to say of the whole question solvitur ambulando.

The development referred to sprang from the growing lobster industry along the French shore. In 1874 and the following years lobster factories were erected by British subjects on the French shore, in positions where there was no French occupation and there were no French buildings. Here there was no violation of the Treaty of Utrecht provision, for the French were in no way restrained from "erecting stages made of boards, and huts necessary and useful for drying of fish," nor was there any violation of the declaration annexed to the Treaty of Versailles, that "His Britannic Majesty will take the most positive measures for preventing his subjects from interrupting in any way by their competition the fishery of the French during the temporary exercise of it which is granted them." The "fishing" which was not to be interrupted by competition was the fishery "which is granted to them," a limitation which throws us back at once upon the language of the earlier treaties. Now it is indisputably clear that the only fishing rights granted to the French were concerned with codfish. The lobster industry was then unknown; and the language used, and in particular "the stages and huts necessary and useful for drying fish" spoken of, are applicable to codfish and not to lobsters, for the canning industry was only of recent date, and lobsters, moreover, are not dried. No fishery other than that of the codfish could then have been contemplated. That this must have been abundantly clear is apparent from the memoirs of M. de Torcy, one of the negotiators of the treaty, who uses throughout the expression "morue" (codfish)—the liberty stipulated was "pêcher et sécher les morues" (to fish and dry codfish). The French, however, not content with objecting to the presence of English factories, erected factories of their own, comprehending them, it must be presumed, within the description "huts necessary and useful for the drying of fish." They contended, furthermore, that their rights were a part of the ancient French sovereignty retained when the soil was ceded to England. Such a claim was inadmissible on any view of the treaties. In fact, there was much to be said for the view that no exclusive right of fishery of any sort was ever given to the French, in spite of the language of the celebrated Declaration. As Lord Palmerston wrote, some eighty years ago, to Count Sebastiani, in his unambiguous way: "I will observe to your Excellency, in conclusion, that if the right conceded to the French by the Declaration of 1783 had been intended to be exclusive within the prescribed district, the terms used for defining such right would assuredly have been more ample and specific than they are found to be in that document; for in no other similar instrument which has ever come under the knowledge of the British Government is so important a concession as an exclusive privilege of this description accorded in terms so loose and indefinitive. Exclusive rights are privileges which from the very nature of things are likely to be injurious to parties who are thereby debarred from some exercise of industry in which they would otherwise engage. Such rights are, therefore, certain at some time or other to be disputed, if there is any maintainable ground for contesting them; and for these reasons, when negotiators have intended to grant exclusive grants, it has been their invariable practice to convey such rights in direct, unqualified, and comprehensive terms, so as to prevent the possibility of future dispute or doubt. In the present case, however, such forms of expression are entirely wanting, and the claim put forward on the part of France is founded simply upon inference and upon an assumed interpretation of words."

It was, in fact, as Lord Palmerston argued, a perfectly open contention that on the authorities no exclusive right was ever given to the French, but the demeanour of this country had been such as to render the position difficult and unconvincing. We are, however, upon much firmer ground when we come to close quarters with the French claims to rights of lobster fishing. The claim was first clearly advanced in 1888, that none but Frenchmen were entitled to catch lobsters and erect preserving factories upon the French shore. This at once elicited an incisive English remonstrance, in deference to which French diplomacy had recourse to the evasion that the factories were merely temporary. They were not, however, removed, and finally in 1889 further remonstrances by Lord Salisbury were met with the bold contention that these factories were comprehended within the language of the treaties. The English Government met this volte face with a feeble proposal to resort to arbitration—a proposal which the islanders declined with equal propriety and spirit. The consequent position was vividly and faithfully stated by Sir Charles Dilke, in a passage which may be quoted in full: