From the execution of this treaty—as might well have been seen—the misunderstanding between the two countries in relation to the fisheries became more and more complicated. The treaty seems to have considered only the cod-fishing, and even from that point of view we paid an enormous price for the poor privilege of drying fish on the Newfoundland coast, by abandoning the right of mackerel fishing within three marine miles of all other coasts of his Britannic Majesty's dominions in America; for from that time the mackerel fisheries grew into large proportions, and without regard to treaty provisions the right of cod-fishing on the banks could never have been taken from us.
The difficulty of determining the three-mile line, the presence of armed vessels to prevent its violation, the vexatious seizure of American fishing-vessels, the reckless injustice of the British local courts in their condemnations, constantly exasperated both parties, and on several occasions threatened to bring the two Governments into actual collision. Both countries recognized the necessity of a more definite settlement; and in June, 1854, after thirty-six years of continuous disturbance and danger, Mr. Marcy as Secretary of State, and Lord Elgin, Governor-General of Canada, as plenipotentiary for Great Britain, negotiated what is known as the Reciprocity Treaty. It was hoped that the opportunity would be used to settle this question permanently, or at least to secure and understanding that we should not upon the termination of a temporary arrangement be relegated to the irritating injustice of the treaty of 1818. But the wary diplomatists of England, with sarcasm scarcely concealed, had so phrased the opening clause of the Reciprocity treaty as to make its provisions only "additional to the liberty secured to the United States fishermen by the Convention of 1818."
The right in the fisheries conceded by the treaty of 1854(2)—originally ours under the treaty of 1782, and unnecessarily and unwisely renounced in the treaty of 1818—was not given freely but in consideration of a great price. That price was reciprocity of trade (so-called) between the United States and the British North American Provinces in certain commodities named in the treaty. The selection as shown by the schedule was made almost wholly to favor Canadian interests. There was scarcely a product on the list which could be exported from the United states to Canada without loss, while the great market of the United States was thrown open to Canada without tax or charge for nearly every thing which she could produce and export. All her raw materials were admitted free, while our manufactures were all charged with heavy duty, the market being reserved for English merchants. The fishery question had been adroitly used to secure from the United States an agreement which was one-sided, vexatious, and unprofitable. It had served its purpose admirably as a makeweight for Canada in acquiring the most generous and profitable market she ever enjoyed for her products. And yet Canadians seemed honestly to believe that they had conceded to us more on the sea than we had conceded to them on the land.(3)
The treaty of 1854 was to continue for ten years, with the right of termination upon twelve months' notice by either party. It was terminated on the 17th of March, 1866, upon notice given by the United States one year before. By the abrogation of this treaty our fishery rights were again, through our own unwise concession, subjected to the provisions of the treaty of 1818. But Canada gained little by this relegation, while she suffered great loss in consequence of being deprived of her free access to the markets of the United States for all her products of forest, field and sea.
During the existence of the Reciprocity Treaty the enterprise and capital of the American fishing industry had in some degree developed mackerel fishing, while a free market in the United States had encouraged the inshore fishing of the British dominions to a great and profitable extent. Perhaps at this time the British fishermen placed an exaggerated estimate upon the three-mile fisheries, while the American fishermen followed the privilege rather as a convenience and as an exemption from this annoyance and expense of seizure and trial, than as having any very large intrinsic value.
When the Joint High Commissioners proceeded to consider the question of the fisheries three different views were manifest. The British Commissioners desired a restoration of the Reciprocity Treaty, to which the American Commissioners replied that such a concession was impossible. During the discussion to which this refusal led, the American Commissioners declared that the value of these inshore fisheries had been largely over-estimated, and that the United-States Government desired to secure their enjoyment, not for their commercial or intrinsic value, but for the purpose of removing a source of dissension. They intimated that $1,000,000 was the largest sum which they would be disposed to offer for the full and permanent use of the inshore fisheries without the addition of any privilege as to the free admission of fish and fish-oil. The British Commissioners considered this to be an entirely inadequate estimate of the value of the fisheries and found insuperable difficulties in the way of an absolute and permanent transfer of the rights.
After prolonged consideration and discussion the American Commissioners finally declared that they were "willing (subject to the action of Congress) to concede the admission of Canadian fish and fish-oil free of duty as an equivalent for the use of the inshore fisheries, and to make the arrangement for a term of years." They were firmly and intelligently of the opinion that free fish and free oil to the Canadian fishermen would be more than an equivalent for these fisheries; but they were also willing to agree upon a reference to determine that question and the amount of money-payment that might be found necessary to complete the equivalent—it being understood that the action of Congress would be needed before any payment could be made. This proposition was referred by the British Commissioners to their Government, was accepted by cable, and was at once embodied in the treaty. These articles adopted the language of the Reciprocity Treaty of 1854, recognizing, as it might again be claimed by the British Government, the existence and full force of the Convention of 1818. The Commission then provided for the freedom from duty of Colonial fish and fish-oil, granted reciprocity of inside fisheries to British fishermen, and finally provided that the question of compensation should be referred to three Commissioners.(4)
It would not be just to impute carelessness to the American members of the Joint High Commission in framing the articles of the treaty relating to the fisheries. It is quite evident however that they had not closely studied the question, and had allowed the British Commissioners to gain an advantage. It was a mistake to agree to a new confirmation of the treaty of 1818, apparently establishing it as the basis of all our rights and giving to it the authoritative position which the treaty of 1782 originally held and should have continued to hold on this question. We might not be able to annul the treaty of 1818, but it was not wise to forfeit, by the assent of so imposing a body as the Joint High Commission, our right of protest against the injustice of its provisions and to agree practically to the assertion that our fishing-rights began in 1818. But a much graver blunder was committed. Our Commissioners had very justly maintained that the admission of Canadian fish and fish-oil free of duty into the United States would be more than an equivalent for the fishery rights to be conceded by the British Government. They had also maintained that for a concession of those rights in perpetuity the Government of the United States would not be willing to pay more than $1,000,000. Holding these views, believing as they did that we were giving more than we were gaining, the Commissioners nevertheless consented to a reference to determine how much in addition we should pay to Great Britain. The agreement certainly should have been to ascertain to which party, if either, a money consideration should be paid. Still further, if they were willing to imply in advance that a money consideration might be due to Great Britain and not to the United States, a maximum limit should have been inserted in the treaty beyond which the American Government would not be willing that any award should extend. But by practically conceded, in the first place, that money should be paid to Great Britain, and by leaving the Reference to determine the amount without any limit whatever, they offered a great temptation to wrong dealing, against which the United States had reserved no defense and could secure no redress.
Of the three Commissioners referred to in the Article providing for an arbitration, the treaty directed that one should be appointed by the President of the United States, one by Her Brittanic Majesty, and the third by the President and Her Brittanic Majesty conjointly; and if they could not agree upon the third within a period of three months after the Article should take effect, then "the third Commissioner shall be named by the representative at London of his Majesty the Emperor of Austria and King of Hungary." The legislation necessary to give the Fishery Articles of the treaty full effect having been completed in 1873, Acting Secretary of State J. C. Bancroft Davis, on the 7th of July in that year, notified the British Minister at Washington, Sir Edward Thornton, that in regard to the third Commissioner "the Government of the United States is willing to take the initiative and suggest to her Majesty's Government the names of a number of persons, each one of whom would be in the opinion of the President be influenced only by a desire to do justice between the parties." He then proposed (for the consideration of the British Government) the names of the Mexican Minister, the Russian Minister, the Brazilian Minister, the Spanish Minister, the French Minister, and the Minister of the Netherlands, residing at that time in Washington. Mr. David advised Sir Edward that they had "omitted the names of those Ministers who have not the necessary familiarity with the English language," and also of those who "by reason of the peculiar political connection of their governments with Great Britain would probably esteem themselves disqualified for the position."
Sir Edward Thornton, being absent from Washington, did not receive the note of Mr. Davis until the 11th of July, when (as he advised him on the 16th) he immediately telegraphed the substance of it to Lord Granville, and dispatched a copy by mail. Five weeks later, on the 19th of August, without any intervening correspondence Sir Edward (writing from the Catskills) recalled to Secretary Fish that he had spoken to him when last in Washington "on the subject of the Belgian Minister, Mr. Delfosse, being a suitable person as third Commissioner on the Commission which is to sit at Halifax. . . . I had hoped [wrote Sir Edward] that he would have been agreeable to your Government, until I spoke to you upon the subject. I subsequently received a telegram from Lord Granville, desiring me to ascertain whether Mr. Delfosse would be agreeable to the Government of the United States as third Commissioner. . . . Lord Granville desired me to ask you in his name that you would consent to the appointment of the Belgian Minister, who, as he believes, would be in all respects a suitable person for the position."