Canada under British Rule 1760-1900

by John George Bourinot

The causes which led in 1866 to the repeal of a treaty so advantageous to the United States have been long well understood. The commercial classes in the eastern and western states were, on the whole, favourable to an enlargement of the treaty; but the real cause of its repeal was the prejudice in the northern states against Canada on account of its supposed sympathy for the confederate states during the Secession war. A large body of men in the north believed that the repeal of the treaty would sooner or later force Canada to join the republic; and a bill was actually introduced in the house of representatives providing for her admission—a mere political straw, it is true, but showing the current of opinion in some quarters in those days. When we review the history of those times, and consider the difficult position in which Canada was placed, it is remarkable how honourably her government discharged its duties of a neutral between the belligerents. In the case of the raid of some confederate refugees in Canada on the St. Alban's bank in Vermont, the Canadian authorities brought the culprits to trial and even paid a large sum of money in acknowledgment of an alleged responsibility when some of the stolen notes were returned to the robbers on their release on technical grounds by a Montreal magistrate. It is well, too, to remember how large a number of Canadians fought in the union armies—twenty against one who served in the south. No doubt the position of Canada was made more difficult at that critical time by the fact that she was a colony of Great Britain, against whom both north and south entertained bitter feelings by the close of the war; the former mainly on account of the escape of confederate cruisers from English ports, and the latter because she did not receive active support from England. The north had also been much excited by the promptness with which Lord Palmerston had sent troops to Canada when Mason and Slidell were seized on an English packet on the high seas, and by the bold tone held by some Canadian papers when it was doubtful if the prisoners would be released.

Before and since the union, the government of Canada has made repeated efforts to renew a commercial treaty with the government at Washington. In 1865 and 1866, Canadian delegates were prepared to make large concessions, but were reluctantly brought to the conclusion that the committee of ways and means in congress "no longer desired trade between the two countries to be carried on upon the principle of reciprocity." In 1866 Sir John Rose, while minister of finance, made an effort in the same direction, but he was met by the obstinate refusal of the republican party, then as always, highly protective.

All this while the fishery question was assuming year by year a form increasingly irritating to the two countries. The headland question was the principal difficulty, and the British government, in order to conciliate the United States at a time when the Alabama question was a subject of anxiety, induced the Canadian government to agree, very reluctantly it must be admitted, to shut out foreign fishing vessels only from bays less than six miles in width at their entrances. In this, however, as in all other matters, the Canadian authorities acknowledged their duty to yield to the considerations of imperial interests, and acceded to the wishes of the imperial government in almost every respect, except actually surrendering their territorial rights in the fisheries. They issued licenses to fish, at low rates, for several years, only to find eventually that American fishermen did not think it worth while to buy these permits when they could evade the regulations with little difficulty. The correspondence went on for several years, and eventually led to the Washington conference or commission of 1871, which was primarily intended to settle the fishery question, but which actually gave the precedence to the Alabama difficulty—then of most concern in the opinion of the London and Washington governments. The representatives of the United States would not consider a proposition for another reciprocity treaty on the basis of that of 1854. The questions arising out of the convention of 1818 were not settled by the commission, but were practically laid aside for ten years by an arrangement providing for the free admission of salt-water fish to the United States, on the condition of allowing the fishing vessels of that country free access to the Canadian fisheries. The free navigation of the St. Lawrence was conceded to the United States in return for the free use of Lake Michigan and of certain rivers in Alaska. The question of giving to the vessels of the Canadian provinces the privilege of trading on the coast of the United States—a privilege persistently demanded for years by Nova Scotia—was not considered; and while the canals of Canada were opened up to the United States on the most liberal terms, the Washington government contented itself with a barren promise in the treaty to use its influence with the authorities of the states to open up their artificial waterways to Canadians. The Fenian claims were abruptly laid aside, although, if the principle of "due diligence," which was laid down in the new rules for the settlement of the Alabama difficulty had been applied to this question, the government of the United States would have been mulcted in heavy damages. In this case it would be difficult to find a more typical instance of responsibility assumed by a state through the permission of open and notorious acts, and by way of complicity after the acts; however, as in many other negotiations with the United States, Canada felt she must make sacrifices for the empire, whose government wished all causes of irritation between England and the United States removed as far as possible by the treaty. One important feature of this commission was the presence, for the first time in the history of treaties, of a Canadian statesman. The astute prime minister of the Dominion, Sir John Macdonald, was chosen as one of the English high commissioners: and though he was necessarily tied down by the instructions of the imperial state, his knowledge of Canadian questions was of great service to Canada during the conference. If the treaty finally proved more favourable to the Dominion than it at first appeared to be, it was owing largely to the clause which provided for a reference to a later commission of the question, whether the United States would not have to pay the Canadians a sum of money, as the value of their fisheries over and above any concessions made them in the treaty. The result of this commission was a payment of five millions and a half of dollars to Canada and Newfoundland, to the infinite disappointment of the politicians of the United States, who had been long accustomed to have the best in all the bargains with their neighbours. Nothing shows more clearly the measure of the local self-government at last won by Canada and the importance of her position in the empire, than the fact that the English government recognised the right of the Dominion government to name the commissioner who represented Canada on an arbitration which decided a question of such deep importance to her interests.

The clauses of the Washington treaty relating to the fisheries and to trade with Canada lasted for fourteen years, and then were repealed by the action of the United States government. In the year 1874 the Mackenzie ministry attempted, through Mr. George Brown, to negotiate a new reciprocity treaty, but met with a persistent hostility from leading men in congress. The relations between Canada and the United States again assumed a phase of great uncertainty. Canada from 1885 adhered to the letter of the convention of 1818, and allowed no fishing vessels to fish within the three miles limit, to transship cargoes of fish in her ports, or to enter them for any purpose except for shelter, wood, water, and repairs. For the infractions of the treaty several vessels were seized, and more than one of them condemned. A clamour was raised in the United States on the ground that the Canadians were wanting in that spirit of friendly intercourse which should characterise the relations of neighbouring peoples. The fact is, the Canadians were bound to adhere to their legal rights—rights which had always been maintained before 1854; which had remained in abeyance between 1854 and 1866; which naturally revived after the repeal of the reciprocity treaty of 1854; which again remained in abeyance between 1871 and 1885; and were revived when the United States themselves chose to go back to the terms of the convention of 1818.

In 1887 President Cleveland and Mr. Secretary Bayard, acting in a statesmanlike spirit, obtained the consent of England to a special commission to consider the fishery question. Sir Sackville West, Mr. Joseph Chamberlain, and Sir Charles Tupper represented England; Mr. Bayard, then secretary of state, Mr. Putnam of Maine, and Mr. Angell of Michigan University, represented the United States. Sir Charles Tupper could not induce the American commissioners to consider a mutual arrangement providing for greater freedom of commercial intercourse between Canada and the United States. Eventually the commission agreed unanimously to a treaty which was essentially a compromise. Foreign fishermen were to be at liberty to go into any waters where the bay was more than ten miles wide at the mouth, but certain bays, including the Bay of Chaleurs, were expressly excepted in the interests of Canada from the operation of this provision. The United States did not attempt to acquire the right to fish on the inshore fishing-grounds of Canada—that is, within three miles of the coasts—but these fisheries were to be left for the exclusive use of the Canadian fishermen. More satisfactory arrangements were made for vessels obliged to resort to the Canadian ports in distress; and a provision was made for allowing American fishing-vessels to obtain supplies and other privileges in the harbours of the Dominion whenever congress allowed the fish of that country to enter free into the market of the United States, President Cleveland in his message, submitting the treaty to the senate, acknowledged that it "supplied a satisfactory, practical and final adjustment, upon a basis honourable and just to both parties, of the difficult and vexed questions to which it relates." The republican party, however, at that important juncture—just before a presidential election—had a majority in the senate, and the result was the failure in that body of a measure, which, although by no means too favourable to Canadian interests, was framed in a spirit of judicious statesmanship.

As a sequel of the acquisition of British Columbia, the Canadian government was called upon in 1886 to urge the interests of the Dominion in an international question that had arisen in Bering Sea. A United States cutter seized in the open sea, at a distance of more than sixty miles from the nearest land, certain Canadian schooners, fitted out in British Columbia, and lawfully engaged in the capture of seals in the North Pacific Ocean, adjacent to Vancouver Island, Queen Charlotte Islands, and Alaska—a portion of the territory of the United States acquired in 1867 from Russia. These vessels were taken into a port of Alaska, where they were subjected to forfeiture, and the masters and mates fined and imprisoned. Great Britain at once resisted the claim of the United States to the sole sovereignty of that part of Bering Sea lying beyond the westerly boundary of Alaska—a stretch of sea extending in its widest part some 600 or 700 miles beyond the mainland of Alaska, and clearly under the law of nations a part of the great sea and open to all nations. Lord Salisbury's government, from the beginning to the end of the controversy, sustained the rights of Canada as a portion of the British empire. After very protracted and troublesome negotiations it was agreed to refer the international question in dispute to a court of arbitration, in which Sir John Thompson, prime minister of Canada, was one of the British arbitrators. The arbitrators decided in favour of the British contention that the United States had no jurisdiction in Bering Sea outside of the three miles limit, and at the same time made certain regulations to restrict the wholesale slaughter of fur-bearing seals in the North Pacific Ocean. In 1897 two commissioners, appointed by the governments of the United States and Canada, awarded the sum of $463,454 as compensation to Canada for the damages sustained by the fishermen of British Columbia, while engaged in the lawful prosecution of their industry on that portion of the Bering Sea declared to be open to all nations. This sum was paid in the summer of 1898 by the United States.

In 1897 the Canadian government succeeded in obtaining the consent of the governments of Great Britain and the United States to the appointment of a joint high commission to settle various questions in dispute between Canada and the United States. Canada was represented on this commission by Sir Wilfrid Laurier, Sir Richard Cartwright, Sir Louis Davies, and Mr. John Charlton, M.P., Newfoundland by Sir James Winter; the United States by Messieurs C.W. Fairbanks, George Gray, J.W. Foster, Nelson Dingley Jr., J.A. Kasson, and T. Jefferson Coolidge. The eminent jurist, Baron Herschell, who had been lord chancellor in the last Gladstone ministry, was chosen chairman of this commission, which met in the historic city of Quebec on several occasions from the 23rd August until the 10th October, 1898, and subsequently at Washington from November until the 20th February, 1899, when it adjourned. Mr. Dingley died in January and was replaced by Mr. Payne, and Lord Herschell also unhappily succumbed to the effects of an accident soon after the close of the sittings of the commission. In an eulogy of this eminent man in the Canadian house of commons, the Canadian prime minister stated that during the sittings of the commission "he fought for Canada not only with enthusiasm, but with conviction and devotion." England happily in these modern times has felt the necessity of giving to the consideration of Canadian interests the services of her most astute and learned statesmen and diplomatists.

This commission was called upon to consider a number of international questions—the Atlantic and inland fisheries, the Alaska boundary, the alien labour law, the bonding privilege, the seal fishery in the Bering Sea, reciprocity of trade in certain products of the two countries, and other minor issues. For the reasons given in a previous part of this chapter (page 269), when referring to the commercial policy of the Laurier government, reciprocity was no longer the all-important question to be discussed, though the commissioners were desirous of making fiscal arrangements with respect to lumber, coal, and some other Canadian products for which there is an increasing demand in the markets of the United States. The long and earnest discussions of the commission on the various questions before them were, however, abruptly terminated by the impossibility of reaching a satisfactory conclusion with respect to the best means of adjusting the vexed question of the Alaska boundary, which had become of great international import in consequence of the discovery of gold in the territory of Alaska and the district of Yukon in Canada.

The dispute between Great Britain and the United States has arisen as to the interpretation to be given to the Anglo-Russian treaty of 1825, which was made forty-two years before Russia sold her territorial rights in Alaska to the United States, that sale being subject of course to the conditions of the treaty in question. Under the third article of this treaty[10]—the governing clause of the contract between England and Russia—boundary line between Canada and Alaska commences at the south end of Prince of Wales Island, thence runs north through Portland Channel to the fifty-sixth degree of north latitude, thence follows the summit of the mountains situated parallel to the coast of the continent, to one hundred and forty-one west longitude and thence to the frozen ocean. That part of the line between fifty-six north latitude and one hundred and forty-one west longitude is where the main dispute arises. Great Britain on behalf of Canada contends that, by following the summits of the mountains between these two points, the true boundary would cross Lynn Canal, about half way between the headlands and tide-water at the head of the canal, and leave both Skagway and Dyea—towns built up chiefly by United States citizens—within British territory. The contention of Great Britain always has been that the boundary should follow the general contour of the coast line and not the inlets to their head waters. On the other hand the United States contend that the whole of Lynn Canal up to the very top, to the extent of tide-water, is a part of the ocean, and that the territory of the United States goes back for ten leagues from the head of the canal and consequently includes Skagway and Dyea. In other words the United States claim that the boundary should not follow the coast line but pass around the head of this important inlet, which controls access to the interior of the gold-bearing region.

[10: The following is the article in full: "The line of demarcation between the possessions of the high contracting parties upon the coast of the continent and the islands of America to the north-west, shall be drawn in the following manner: commencing from the southernmost point of the island called Prince of Wales Island, which point lies in the parallel of fifty-four degrees forty minutes north latitude, and between the one hundred and thirty-first and the one hundred and thirty-third degree of west longitude, the said line shall ascend to the north along the channel called Portland Channel as far as the point of the continent where it strikes the fifty-sixth degree of north latitude. From this last-mentioned point the line of demarcation shall follow the summit of the mountains situated parallel to the coast as far as the point of intersection of the one hundred and forty-first degree of west longitude (of the same meridian), and finally from the said point of intersection of the one hundred and forty-first degree in its prolongation as far as the frozen ocean, shall form the limit between the Russian and British possessions, on the continent of America to the north-west">[