ARTICLE III.
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 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 British Majesty's dominions in America, and that 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 article clearly defined the rights of the American fishermen, and if it could have remained in force, and its provisions been honorably carried into effect, no further trouble would probably ever have arisen over the subject of the fisheries.
In 1812, however, the United States engaged in a second war with Great Britain, and in the treaty of peace which was negotiated at Ghent, in the year 1814, no mention whatever was made of the right of the American people to take fish in Canadian waters. The reason for this omission, seems to have been that the American representatives, among whom were Henry Clay and John Quincy Adams, maintained that the rights guaranteed by article three of the treaty of 1783, were not created by that treaty, but were merely recognized by it, as permanent rights already existing, and of such a character that they were not to be affected or superseded by any rupture of friendly relations, or even by war.
The same treaty, (1783) had conceded to the British the right to free navigation of the Mississippi River, but since that treaty had been signed, the United States had purchased the Louisiana Territory from France, and had thus metamorphosed that great river into an exclusively American waterway. The American commissioners therefore, being unauthorized to concede navigation rights on the Mississippi, in consequence of this change of ownership, the British commissioners claimed some concession as an offset to this refusal; and a compromise was agreed upon, by which no mention was made either of the British claim to navigate this river, or of the American claim to fish in Canadian waters.
The situation, however, was not satisfactory, and after a long diplomatic correspondence between the two governments, a new treaty was negotiated in London in the year 1818, which among other things, contained the following provision:
"That the inhabitants of the United States shall have forever in common with the subjects of His Britannic Majesty, the liberty of taking fish of any kind, on that part of the southern coast of Newfoundland which extends from Cape Race to the Ramean Islands; on the western and northwestern coasts of Newfoundland, from the said Cape Race to the Quispen Islands; on the shores of the Magdalen Islands; and also on the coasts, bays, harbors, and creeks, from Mount Joly to the southern coast of Labrador, to and through the Straits of Belle Isle, and thence northwardly, indefinitely along the coast. And that the American fishermen shall have liberty forever, to dry and cure fish in any of the unsettled bays, harbors and creeks, in the southern part of Newfoundland hereinbefore described, and of the coasts of Labrador; but as soon as the same or any portion thereof, shall be settled, it shall not be lawful for said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose, with the inhabitants, proprietors or possessors of the ground.
"And the United States hereby renounces 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 coast, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included in the above mentioned limits. Provided, however, that the American fishermen shall be permitted to enter such bays or harbors for the purpose of shelter, of repairing damages therein, of purchasing wood and obtaining water, and for no other purpose whatever. But they shall be under such restrictions as shall be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever, abusing the privileges hereby secured to them."
This treaty, which may fairly be said to have been the cause of all the trouble which afterwards arose on the fishery question, was negotiated on the part of the United States, by Mr. Rush, then American Minister at the Court of St. James, and Mr. Gallatin, his associate commissioner; but as it was subsequently ratified by the Senate of the United States, it would be scarcely fair to hold those two gentlemen wholly responsible for the disgraceful and humiliating surrender of rights and privileges which had hitherto been freely conceded to American fishermen.
The treaty, by its very terms, invited disturbances and misunderstandings, which were not slow in manifesting themselves.