History of the United States, Volume 4

by Elisha Benjamin Andrews

CHAPTER III.
THE FISHERIES DISPUTE

Our glance at the Treaty of Washington introduces us to an international complication which has been transmitted from the very birthday of the nation, and is, alas, still unsettled, spite of the earnest efforts to this end made since 1885. Article 3 of the treaty of 1783 was as follows: “It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank and on all the other banks of Newfoundland; also in the Gulf of St. Lawrence and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish; and also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use [but not to dry or cure the same on that island]; and also on the coasts, bays, and creeks of all other of his Britannic Majesty’s dominions in America, and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled; but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground.”

This provision conveyed to fishermen from the United States two valuable privileges—that of fishing in British waters, namely, within three miles of the British coast, and that of drying and curing fish, wherever caught, upon certain convenient parts of the British coast. They had, of course, like the men of all nations, apart from any treaty stipulation, the right to fish outside the three mile limit, but this would avail them nothing, under the then mode of conducting the industry, unless they could freely make harbor in case of storm, and also land to cure their catch before lading it for the homeward cruise. What worth these rights had will be clear if we remember that fishing had always been one of New England’s foremost trades, and that the waters off Newfoundland and Nova Scotia had from, and probably before, Columbus’s time been known as the richest fishing grounds of the globe.

The commissioners at Ghent, who drew up the treaty ending the War of 1812, wrangled long over the question whether or not the war had nullified the just cited Article 3 of 1783. Unable to agree, they signed their treaty without deciding the question, leaving this for the future to settle as it might. Great Britain held that our former rights had lapsed by the war, and excluded our fishing vessels from the bays, harbors, and creeks named above. Several of our vessels were arrested on charge of trespass. The utmost tension still existed, in spite of the peace, especially as in the United States the view prevailed that our rights by the old treaty had outlived the war, notwithstanding the silence of the Ghent document.

At length, in 1818, a new treaty was entered into upon the question, signed October 20th, ratified by England November 2d, and by the United States January 28, 1819. This instrument ignored our contention that Article 3 of the treaty of 1783 was of perpetual obligation, and restricted our right to fish in shore to the southern shores of the Magdalen Islands, the west and southwest coasts of Newfoundland from the Rameau Islands round to Quirpon Island, and the Labrador coast from Mount Joly northward. Only here could our fishermen fish within the three mile limit, and they could dry and cure only on the named parts of Labrador and Newfoundland, Magdalen Islands being now excluded from this use. Even on Labrador and Newfoundland the privilege of drying and curing was to be cut off by settlement, except as agreement should be made beforehand with the inhabitants.

But the fateful clause of this treaty was the following: “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 harbors of his Britannic Majesty’s dominions in America not included within the above-mentioned limits: Provided, however, 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 purposes 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.”

Troubles were soon as abundant as ever. The Canadians applied the word “bay” to all indentations of their coast, affecting entirely to exclude our fishermen from great bodies of water like Fundy, Chaleurs, and Miramichi, however far parts of these might be from shore. This was the famous “headland theory” for defining national waters. They also denied our right to navigate the Gut of Canso, which separates Cape Breton Island from Nova Scotia, thus forcing far out of their nearest course our ships bound for the permitted inshore fisheries. United States fishermen on their part persisted in exploiting the great bays, landed upon the Magdalen Islands, pushed through the Gut, and were none too careful at any point to find or heed the three mile line.

June 5, 1854, was signed a treaty of reciprocity between the United States and the British provinces, under which all the coasts of British North America were opened to our fishing vessels, in return for similar liberty to those of the provinces in all United States waters north of Cape May, latitude 36 degrees, the salmon and shad fisheries of each country being, however, reserved to itself. This arrangement was to continue ten years at least, and then to be terminable on a year’s notice by either of the high contracting parties. Such notice having been given by the United States one year before, reciprocity in fishing privilege came to an end March 7, 1865. This, of course, renewed the wry and perplexing rules of the 1818 convention, with all the naturally consequent strife. The worst evils were, indeed, put off for a time, by a continuance to our vessels of the right to fish in provincial water on the payment of a small license fee. This favor was taken away in 1870, for the alleged reason that American captains failed to procure licenses, and in the course of this year many of our ships were seized and confiscated. New sternness had been imparted to the provincial policy by the Canadian Act of Confederation, valid from July I, 1867, which joined Ontario and Quebec with Nova Scotia and New Brunswick, thus inspiring our neighbors to the north with a new sense of their strength and importance.

Now came the Treaty of Washington, 1871. Its Article 18 revived Article 1 of the 1854 Reciprocity Treaty, except that Canadians could now go so far south as the 39th parallel, and that two years’ notice must precede abrogation. Article 21 ordained between the two countries free trade in fish-oil and in all salt-water fish. Both sides assumed that mere reciprocity would advantage the United States the more, so that by Article 22 a commission was provided for to award Canada a proper balance in money. By bungling diplomacy on our part the real power in this commission was swayed by M. Maurice Delfosse, Belgian minister at Washington, a gentleman certain to favor Great Britain at our expense. As a consequence, we were forced to pay for reciprocity to the round note of $5,500,000. The money was a trifle; but its exorbitant amount had the unhappy effect of prejudicing our people against the new arrangement. The result was that at the earliest possible moment, viz., July 1, 1883, our Government gave the notice necessary for its abrogation. This followed on July 1, 1885, in the very midst of the fishing season. A temporary diplomatic arrangement was effected, which continued to our fishermen for the remainder of 1885 the advantages of the recent treaty; but with the dawn of the new year, 1886, the old convention of 1818 came once more into operation.

So soon as the fishing season was opened the plan of the British Government was evident. It was to deny the fishing vessels all facilities not guaranteed by the treaty of 1818—that is, fishing vessels of the United States would be permitted to enter Canadian ports for shelter, repairs, wood, and water, and “for no other purposes whatever;” also to compel all such vessels strictly to conform to both customs and port laws. Circular letters of instruction, enjoining vigilance, were sent to all customs officers, and swift cruisers fitted out to look sharply after all fishing vessels from the States. On the other hand our fishermen were not, as a whole, disposed to conform to the existing regulations. The Treaty of Washington had been abrogated at their request, and now many, probably most, of them were inclined to exercise all the liberty possible in the Canadian waters. Least of all were they willing to submit to the British interpretation of the treaty of 1818.