What the British Government desired was substantially a renewal of the Reciprocity treaty of 1854,—fishery clauses included. That treaty had expired in 1866; and to aid in securing its renewal a highly intelligent special Commissioner, Mr. Rothery, was now sent to Washington to aid the British Legation in negotiating such a convention. Success was more easily attained with the Executive department of our Government than with the Legislative. A treaty of reciprocity was agreed upon between Mr. Fish and Sir Edward Thornton, and duly transmitted to the Senate. If ratified by that body, it would still be incomplete until the consent of the House should be obtained. But it was rejected by the Senate on the 3d of February, 1875; and the two Governments were left to renew the arrangements for the Fishery Commission, which by agreement had not been affected by the postponement resulting from the negotiations for reciprocity.
Various delays hindered the agreement between the two Governments upon an identic note to be addressed to the Austrian Government, requesting the appointment of the third Commissioner by the representative of that Government in London; and it was not accomplished until the winter of 1876-77. Mr. Fish realized by that time that he no longer had the power to prevent the selection of Mr. Delfosse, and that his selection, made against open and avowed opposition, might be especially detrimental to the interests of the United States. Mr. Fish realized also that Count von Beust, the Austrian Ambassador, might select some one even more objectionable than Mr. Delfosse, if that were possible; and he therefore thought it expedient to withdraw his personal objections to that gentleman, and agree to that which he could not change or avert. Upon intimations to that effect Count von Beust named Mr. Delfosse as the third Commissioner. The Canadian Government, whose interests and influence in the matter had been apparently consulted by Lord Granville at every step, and which had been represented as objecting to the appointment of any Minister accredited to Washington, gladly approved the selection of Mr. Delfosse, although he was and had been for many years "a Minister accredited to Washington."
The record of this case, as thus shown by the official correspondence, is not creditable to the English Government. If in an arbitration between private persons, either of them should make palpable and avowed effort to secure a particular man—connected with him by kinship and business interests—he would be considered as acting unfairly, the common judgment of the people would condemn him, and the tribunal to which the award was rendered would unhesitatingly set it aside as vitiated, upon proof that advantage had been secured in the selection of the Arbitrators. The English Government would no doubt fall back for its defense upon the acquiescence which was ultimately and reluctantly extorted from Secretary Fish. But the official correspondence shows that Mr. Fish resisted and protested as long as he had power to resist and protest, and consented when his consent was only a form of courtesy to the gentleman whose appointment had been predetermined by the British Government. It might have been wiser, perhaps, for Mr. Fish to continue his protest to the last, and leave to the British Government no shadow of excuse for its extraordinary and unjustifiable course.
The Fishery Commission met at Halifax, N. S., in the summer of 1877. Sir Alexander T. Galt was the British Commissioner, Honorable Ensign H. Kellogg of Massachusetts was the United-States Commissioner, and Mr. Delfosse was the third. The agent of the British Government was Sir Richard Ford, a member of the British Diplomatic Corps; and the agent of the United-States Government was Honorable Dwight Foster, formerly a judge of the Massachusetts Supreme Court. The British case was represented by five able members of the Colonial Bar, four of whom were Queen's counsel.—Sir W. V. Whiteway of Newfoundland; L. C. Davies, Premier of Prince Edward's Island; J. Doutre of Montreal; C. J. Weatherby of the Province of Nova Scotia; S. R. Thompson of New Brunswick. The American case was represented by the agent, Judge Foster, Richard H. Dana of Massachusetts, and William Henry Trescot of South Carolina, American Secretary of Legation in London under the Presidency of Mr. Fillmore, and Assistant Secretary of State during the Administration of Mr. Buchanan.
The case was elaborately prepared and ably argued on both sides. Reduced to its most simple statement, the contention of the United States Government was this: that the duty of the Commission was limited; that it was charged with the decision of no political or diplomatic questions; that all such questions had been determined by the high contracting parties in signing the treaty of Washington; and that this Commission was simply a reference for an accounting in a given department of trade. They contended that the value of the inshore fisheries was simply their value as mackerel fisheries; that to estimate one-fourth of the whole mackerel-catch as taken by American fishermen was a liberal, even an extravagant concession on the part of the United States; and that the remission of duty on Colonial fish and fish-oil, which was admitted to be worth $350,000 per annum to the Dominion of Canada, was an ample equivalent.
In presenting the British case every consideration was put forward by the clever men who represented it, to magnify the concession made to the United States. They dwelt at great length upon the thousands of miles of coast thrown open to Americans; upon the fabulous wealth of the fisheries, where every one caught had, like the fish of the miracle in Scripture, a bit of money in its mouth; upon the fact that the chief resource and variety of fishing lay within the three-mile limit. They managed to obscure the real issue by great masses of confused statistics, and caused the sparsely settled provinces to appear as granting an extraordinary privilege to American fishermen, in allowing their nets to be dried and their fish to be cured on the sands and rocks of their remote and uninhabited coasts.
After the respective cases had been stated and all the evidence and arguments heard it was found that the difference of opinion between the British and the United-States Commissioners were irreconcilable. The decision was therefore left to Mr. Delfosse—as was anticipated from the first. He estimated the superior advantage of the privilege of the inshore Colonial fisheries, over such as were given to British subjects in American waters, at $5,500,000 for their twelve years' use. The result of the negotiation, therefore, was that for twelve years' use of the inshore British Colonial fisheries which were ours absolutely by the treaty of 1782, we paid to the British Government the award of $5,500,000, and remitted duties to the amount of $350,000 per annum (for the period of twelve years, $4,200,000), besides building up into a profitable and prosperous industry the shore-fishing of Prince Edward's Island, which before the Reciprocity Treaty was not even deemed worthy of computation.
The award was made on the 23d of November, 1877. It produced profound astonishment throughout the United States, accompanied by no small degree of indignation. Rumors in regard to the mode of Mr. Delfosse's appointment became frequent during the ensuing winter; and on the 11th of March, 1878, Mr. Blaine of Maine submitted a resolution in the Senate, requesting the President, if not incompatible with the interests of the public service, to transmit the correspondence which preceded the selection of Mr. Delfosse as third Commissioner. It was promptly given to the Senate and to the public, and increased to a great degree the popular dissatisfaction with the result. For the first time Mr. Delfosse became acquainted with the serious objections made by the Government of the United States to his appointment. It is probably that if his government had been advised of the facts Mr. Delfosse would never have been subjected to the embarrassment and mortification of serving on the Commission.
In transmitting to Congress the papers relating to the award, on the 17th of May (1878), President Hayes recommended the "appropriation of the necessary sum, with such discretion in the Executive Government, in regard to the payment, as in the wisdom of Congress the public interests may seem to require." The whole matter was referred to the Committee on Foreign Relations, and on the 28th of May the chairman of the Committee, Hon. Hannibal Hamlin, made an elaborate report, reviewing the history of the transaction in a very thorough and impartial manner. He also submitted a resolution, declaring that "the views and recommendations embraced in the report of the Senate Committee of Foreign Relations, touching the award made by the Fishery Commission at Halifax, are hereby approved." The Committee, at the same time, reported a bill appropriating five and a half millions for the payment of the award.
The report of the Committee recommended that "the President of the United State should be authorized to pay the award, if, after correspondence with the Government of Great Britain, he shall, without further communication with Congress, deem that such payment shall be demanded by the honor and good faith of the Nation; and if in pursuance of that conclusion the award shall be paid, the President shall, as soon as may be convenient thereafter, lay the correspondence with the British Government relating thereto before Congress." Mr. Hamlin pointed out in his report the possibility that "the Halifax Commission had proceeded ultra vires and taken into consideration certain elements not fairly in the case submitted." "When the King of the Netherlands," said the report, "was selected as umpire in 1827 to settle the North-eastern Boundary dispute between Great Britain and the United States, his award was set aside on the plain and justifiable ground stated by Mr. Clay, then Secretary of State, that his Majesty had recommended a mode of settlement outside of the facts and terms of submission." Had Mr. Delfosse and Mr. Galt proceeded in a similar manner?