The battle of the Swash and the capture of Canada

by Samuel Barton

In the very next year, (1819) the English Parliament passed an Act, which provided that American vessels found within the three-mile limit might be seized and condemned; and imposed fines on such as refused to depart from such bays or limits, after being warned. The Canadian Parliaments, taking the cue from this legislation of the mother country, passed numerous and stringent laws and regulations, which they claimed were necessary to carry out the provisions of the treaty; but which the Americans claimed were needlessly annoying, oppressive, and unneighborly.

Among other claims, what was known as the "Headland theory" was advanced, under which the three-mile limit was claimed not to follow the sinuosities of the coast, but to be a line three miles outside of a straight line drawn from point to point, or headland to headland of the coast; no matter how far apart these points or headlands might be, or how extensive the bay or gulf might be which lay between them. Under this construction of the treaty, Nova Scotia claimed the right to close the Straits of Canso to our fishermen; and to make her claim to exclusive jurisdiction over that body of water more plausible, annexed Prince Edward's Island.

Numerous seizures of American vessels were made and a strained condition of affairs ensued, which lasted a number of years, and which temporarily culminated in 1843, in the seizure of an American fishing vessel, called the "Washington," in the Bay of Fundy, at a point more than ten miles from the nearest shore. This induced a protest from the United States, in response to which the English Government agreed to waive the Headland theory as far as it related to the Bay of Fundy, but not as to any other bay or gulf.

The contention continued, and in 1851 the English Government announced its intention of sending a fleet to the fishing grounds for the purpose of enforcing its rights.

More diplomatic correspondence ensued, and at length, in 1853, a board of arbitration was empowered to decide this phase of the controversy; and decided that bays ten miles or more in width, were to be considered as part of the open sea. This was followed in 1854, by what has been called the reciprocity treaty; which, in consideration of the abolition of the three-mile restriction, and of the restoration of the rights to take fish, and to cure and dry the same on the Canadian Coasts, which had been conceded without any equivalent in the treaty of 1783, the United States agreed to admit nearly all Canadian products free of duty.

This treaty by its terms was to remain in force for ten years, and to continue in force thereafter until after twelve months' notice of the desire of either party to terminate it.

During the continuance of this treaty, the War of the Rebellion occurred; our national debt assumed enormous proportions; our tariff and internal taxes were vastly increased to meet the expenses of the war and the interest on the debt; and what in 1854 bad seemed a mere bagatelle—viz., the duty on Canadian imports—assumed an importance, as an item of revenue, entirely disproportionate to the value of any additional fishing privileges which the treaty gave us. Consequently, in 1865, the United States gave the requisite twelve months' notice, and in 1866 the treaty came to an end. Canada, having for twelve years experienced the advantages of an unrestricted market in the United States (the direct pecuniary value of which in duties remitted, alone amounted to 14,200,000, or $350,000 a year) was naturally reluctant to give them up, so she returned to her former methods, construed the former treaty in a narrow and illiberal spirit, and let no opportunity slip to annoy and outrage our fishermen.

Meanwhile the United States Government was engaged in a controversy with the English Government over the claim for damages to American shipping, committed by the so-called Confederate cruiser "Alabama" during the "War of the Rebellion," and a joint commission representing the two countries assembled in Washington in 1871 to negotiate a treaty, which should, if possible, arrange all matters in dispute—including, of course, the fisheries question.

Their deliberations resulted in the treaty of Washington, by which our fishermen, in addition to the rights conferred by the treaty in 1818, received permission to fish in the bays, harbors and creeks of Quebec, Nova Scotia, New Brunswick, and Prince Edward's Island, and the islands adjacent thereto; and by which, also, fish oil and fish of all kinds (except fish of inland lakes and fish preserved in oil) were to be admitted into each country free of duty. A question arose as to whether the admission of Canadian fish free of duty was a sufficient equivalent for the increased fishing privileges granted to the American fishermen. The British Commissioners insisted that it was not; and the American Commissioners insisted that it was; but finally offered to pay Great Britain one million dollars as full consideration for the right to use forever the inshore fisheries in common with the English and Canadian fishermen. The parties could not agree, and the question was referred to a commission of three, consisting of one American, one Canadian, and the Belgian Minister to the United States. Six years later, in 1877, this commission—or rather the Belgian minister (for the Canadian and American Commissioners disagreed)—decided that the United States should pay Great Britain $5,500,000 for this privilege; which, added to the $4,200,000 of duties remitted under the reciprocity treaty of 1854, made the snug sum of $9,700,000 paid by the United States for a privilege which was conceded by the treaty of 1783 to be a vested and permanent right.

This was bad enough in all conscience, but to make it if possible worse, and more galling to Americans, the charge was openly made by Professor Hind, who had been the British scientific witness before the commission, and had acted as the official compiler of the index to the documents used in the investigation, that the statistics in these documents had been manufactured and forged for the purpose of misleading the commission, and defrauding the United States.