Page images


Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America:

It is agreed between the high contracting parties that the inhabitants of the said United States shall have, forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Ramea Islands; on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands; on the shores of the Magdalen Islands, and also on the coasts, bays, harbors, and creeks from Mount Joli, on the southern coast of Labrador, to and through the Straits of Belleisle; and thence northwardly, indefinitely, along the coast, without prejudice, however, to any of the exclusive rights of the Hudson Bay Company; and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland, here above described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion 80 settled without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground.

And the United States hereby renounce, fovever, 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 coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included within the above-mentioned limits: Provided, however, That the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood and obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.

This article was accepted by the American commissioners, and is identical with article incorporated in the convention. (8 Stat. at Large, page 248.)

The comparison of this article with the article submitted by the American commissioners, on the 17th of September, shows 1818, Oct. 20. that the only material change made, so far as the present discussion is concerned, was in the exclusion of the word "bait." It is represented that the "bait" referred to in the treaty must have been bait for "cod," which were caught in those waters, as the mackerelfisheries in those waters did not begin till several years after that time. It was, therefore, within the letter and spirit of the convention to deny to American fishermen the right to catch that bait in those waters. The favorite bait for the mackerel is said to be caught only off the coast of Maine, and not to be found in Canadian waters. If this is correct, it could not have been intended to deny to our fishermen the right to purchase that bait in British ports.

Was passed in the Imperial Parliament the "Act to enable his Majesty to make regulations with respect to the taking and curing 1819, June 14. fish on certain parts of the coast of Newfoundland, Labrador, and His Majesty's other possessions in North America, according to a convention made between His Majesty and the United States of America." It is by this statute declared to be unlawful for persons, not natural-born British subjects, to fish for, in a foreign vessel, take, dry, or cure any fish within three marine miles of any coasts, bays, creeks, or harbors whatever, in any British port in America, not included within the limits specified and described in the first article of the convention of 1818.

It is further declared that it may be lawful for the United States fishermen to enter into such bays or harbors, for the purpose of shelter and

*The words in italics were inserted by the British commissioners in lieu (generally) of other words erased from the project submitted by the American commissioners on the 17th of September. In some cases the words in italics are additions. (See ante.)

repairing damages therein, and of purchasing wood, and of obtaining water, and for no other purpose whatever; that the governor of Newfoundland is invested with power to order such persons to depart; and that persons refusing to depart after notice, or neglecting to conform to regulations, shall forfeit two hundred pounds. (Sabine's Fisheries, 394.) In the spring of the year the schooner "Charles" was seized for a breach of this act, in returning to a harbor a second time after warning, "the weather being fine and moderate the whole time." (S. Ex. Doc. 100, 32d Con., 1st sess., page 5.)


It appearing that the Charles, during her detention, had been used as

a British cruiser, the vessels captured by her were restored, and official information thereof given. (Ibid., page 11.)

1824, June 10.

Mr. Vaughn informed Mr. Clay that "the Charles had been regularly condemned in the vice-admiralty court of the province of New Brunswick, and that it was not expected that the Government

1826, Feb. 5.

of the United States would lend further countenance to the complaints of the owners." (Ibid., page 54.)

It does not appear that there was any further correspondence about this vessel.

More or less correspondence took place about the "Reindeer" and the "Ruby," which were rescued by force after having been seized by a British cruiser.


The last letter on the subject (from Mr. Vaughn to Mr Clay) does not appear to have been ever answered. From that time until 1836 there is no evidence of complaint on the files of the Department of State, so far as known.

1826, April 29.

Some complaints of trespass were made by Great Britain this year, but on investigation they appeared to have little foundation. (Ib., pages 55, 56, 57, and 58.)



In this year the statute of Nova Scotia was passed, authorizing officers to go on board vessels hovering within three miles of the coast or barbors; to stay on board; to require the vessel to depart; to bring it into port if it did not do so within twenty-four hours; to examine the master on oath; to condemu him to a forfeiture of £100 if he did not make true answer; and also authorizing a forfeiture of the vessel o cargo found fishing within forbidden waters. There were many other extraordinary, onerous, and unjust provisions in this act, for which reference is made to the act. (S. Ex. Doc. 100, 32d Con., 1st sess., page 108.)

The same colony, in an address to the Queen, prayed for "a naval force to put an end to American aggressions;" to which the colonial secretary replied that "it had been determined for the future


to station, during the fishing season, an armed force on the coast of Nova Scotia to enforce a more strict observance of the treaty by American citizens." (Sabine's Fisheries, page 399.)

1839, Aug. 14. Dec. 29.

The seizures which followed this course were numerous. (Ib., page 400.) The voluminous correspondence which grew out of these seizures will be found in the Senate Ex. Doc. already cited, pages 59 to 103. The results are summed up in a report from the acting Secretary of State, Mr. Vail, (page 92,) and in a report from LieutenantCommanding Paine to Mr. Forsyth, (page 98.) Mr. Vail is unable to state whether, in the cases under consideration, there has been any flagrant infraction of the existing treaty stipulations," (page 95.) He appears to think that most of the cases were connected with alleged violations of the customs laws. Lieutenant Paine reports that "the authorities of Nova Scotia seem to claim a right to exclude Americans

from all bays," "and also to draw a line from headland to headland;" "that the provincial authorities claim a right to exclude vessels, unless in actual distress;" and "would exact that American fishermen shall have been supplied on leaving home with wood and water for the cruise." (Ib., pages 99, 100.)

Mr. Forsyth informed Mr. Stevenson, the United States minister in London, that the provincial "authorities claim a right to exclude 1841, Feb. 20. our vessels from resorting to their ports unless in actual distress, and American vessels are accordingly warned to depart or ordered to get under way and leave a harbor whenever the provincial customhouse or British naval officer supposes, without a full examination "of the circumstances under which they entered, that they have been there a reasonable time," and instructed him to "immediately remonstrate against the illegal and vexatious proceedings of the authorities of Nova Scotia toward our fishermen, and request that measures be forthwith adopted by Her Majesty's government to remedy the evils arising out of this misconstruction on the part of the provincial authorities of their conventional obligations." He also gave strong and explicit instructions as to the Nova Scotia act of 1836. (Ib., pages 106–108.)

The reasoning of Mr. Forsyth, on pages 107 and 108, upon the Nova Scotia law of 1836, is applicable, without changing a word, to the Dominion laws of 1868 and 1870.

Mar. 27.

Mr. Stevenson brought to Lord Palmerston's notice: 1. The claim to exclude American vessels from waters "within three miles of a line drawn from headland to headland, instead of from the indents of the shores of the provinces." 2. That the authorities of Nova Scotia had "put upon the stipulations of the treaty [as to the entry to harbors, &c.] a construction directly in conflict with their object, and entirely subversive of the rights and interests of the citizens of the United States." 3. The objectionable law of Nova Scotia. 4. The assertion, said to be untenable, "that the Gut of Canso is a narrow strip of water completely within and dividing several counties of the province." (Ib., pages 113, 114, and 115.)

It resulted from this note that the law-officers of the Crown were inquired of and gave their opinions: 1. Sustaining the colonial "headland" doctrine, on the assumption that the word "headland" is used in the convention. No such word is there found. 2. Giving an answer as to the use of ports, which is immaterial in the present aspect, but which was favorable to the American fishermen so far as it went. 3. Say nothing about the objectionable clauses in the law. 4. Affirming the colonial doctrine about the Gut of Canso. (Sabine Fisheries, pages 405 and 406.) It does not appear that this document was ever officially communicated to this Government.


In a discussion, however, which took place at London, between Mr. Everett and Lord Aberdeen, in regard to the schooner Washington, captured in the Bay of Fundy, these views of the Crown law-officers were officially asserted, but without referring to them. (S. Ex. Doc. No. 100, as above, page 120, et seq.)

1845. March 10.

Lord Aberdeen informed Mr. Everett that while the British government did not concede that the United States had a right to the fisheries in the Bay of Fundy," they are prepared to direct their colonial authorities to allow henceforward the United States fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach, except in the cases specified in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick." (Ib., page 136.)

In this long discussion Mr. Stevenson's complaints as to the restrictions upon the use of ports seem not to have been noticed by the British government, unless the last clause quoted from Lord Aberdeen's note to Mr. Everett is to be construed as an implied re-assertion of the doctrine.

1845, Sept 17.

Sir Robert Peel's government having meanwhile fallen, Lord Stanley wrote to Lord Falkland that the British government had abandoned the intention they had on the subject, and should adhere to the strict letter of the treaties, except in so far as they may relate to the Bay of Fundy.

1852, July 5.

No collision of authority, however, occurred, or was threatened, until Mr. Crampton gave notice that a force of warsteamers and sailing-vessels was coming to the fishing-grounds to prevent encroachments of vessels belonging to citizens of the United States on the fishing-grounds reserved to Great Britain. (Ib., page 154.)

1852, July 6.

This was done after an ineffectual attempt to induce the United States to conclude a reciprocity treaty. (Sabine's Fisheries, pages 436, 437, 438.) Mr. Webster, Secretary of State, thereupon issued a circular notice to the American fishermen. The following passage is quoted with approbation in the pamphlet review of the President's message already cited, (page 15,) and appears to be relied upon by Canadian authorities:

It would appear that by a strict and rigid construction of this article fishing-vessels of the United States are precluded from entering the bays or harbors of the British provinces, except for the purpose of shelter, repairing damages, and obtaining wood and water. A bay, as is usually understood, is an arm or recess of the sea entering from the ocean between capes and headlands, and the term is applied equally to small and large tracts of water thus situated; it is common to speak of Hudson's Bay, or the Bay of Biscay, although they are very large tracts of water.

The British authorities insist that England has a right to draw a line from headland to headland, and to capture all American fishermen who may follow their pursuits inside of that line. It was undoubtedly an oversight in the convention of 1818 to make so large a concession to England, since the United States has usually considered that those vast inlets or recesses ought to be opened to American fishermen as freely as the sea itself to within three marine miles of the shore.

The reviewer claims that Mr. Webster's "sound judgment compelled him to recognize the legal force of the British claims to the only point then in dispute, viz, the headland line. (Review of President's message, page 16.)

To reach that result he suppresses the following language from the close of the same circular:

Not agreeing that the construction thus put upon the treaty is conformable to the intentions of the contracting parties, this information is, however, made public to the end that those concerned in the American fisheries may perceive how the case at present stands and be on their guard. (Sabine's Fisheries, page 441.)

1852, Aug. 23.

The provincial secretary of Nova Scotia issued a notice that "No American fishing-vessels are entitled to commercial privileges in provincial ports, but are subject to forfeiture if found engaged in traffic. The colonial collectors have no authority to permit freight to be landed from such vessels, which, under the convention, can only enter our ports for the purposes specified therein, and for no other." (Review of President's message, page 12.)


The case of the "Washington" (one of the vessels whose seizure was discussed by Mr. Everett) came before the joint commission for settlement of claims, in London, and on disagreement of the commissioners was decided by the umpire, (Mr. Joshua Bates,) who said:

The question turns, so far as relates to the treaty stipulations, on the meaning given to the word "bays" in the treaty of 1783. By that treaty the Americans had no right to

dry and cure fish on the shores and bays of Newfoundland, but they had that right on the coasts, bays, harbors, and creeks of Nova Scotia; and as they must land to care fish on the shores, bays, and creeks, they were evidently admitted to the shores of the bays, &c. By the treaty of 1818 the same right is granted to cure fish on the coasts, bays, &c., of Newfoundland, but the Americans relinquish that right and the right to fish within three miles of the coasts, bays, &c., of Nova Scotia. Taking it for granted that the framers of the treaty intended that the words "bay or bays" should have the same meaning in all cases, and no mention being made of headlands, there appears no doubt that the Washington, in fishing ten miles from the shore, violated no stipulations of the treaty.

It was urged, on behalf of the British government, that by coasts, bays, &c., is understood an imaginary line, drawn along the coast from headland to headland, and that the jurisdiction of Her Majesty extends three marine miles outside of this line; thus closing all the bays on the coast or shore, and that great body of water called the Bay of Fundy, against Americans and others, making the latter a British bay. This doctrine of headlands is new, and has received a proper limit in the convention between France and Great Britain of 2d August, 1839, in which "it is agreed that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland."

The Bay of Fundy is from 65 to 75 miles wide and 130 to 140 miles long; it has several bays on its coasts; thus the word bay, as applied to this great body of water, has the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume the sovereignty. One of the headlands of the Bay of Fundy is in the United States, and ships bound to Passamaquoddy must sail through a large space of it. The islands of Grand Menan (British) and Little Menan (American) are situated nearly on a line from headland to headland. These islands, as represented in all geographies, are situate in the Atlantic Ocean. The conclusion is, therefore, in my mind irresistible that the Bay of Fundy is not a British bay, nor a bay within the meaning of the word, as used in the treaties of 1783 and 1818. (Report of Decisions of Commission, page 181.)

Mr. Richard Rush, one of the negotiators of the treaty of 1818, 1853, July 18. wrote to the Secretary of State, (referring to that instrument:) "In signing it we believe that we retained the right of fishing in the sea, whether called a bay, gulf, or by whatever term designated, that washed any part of the coast of the British North American provinces, with the simple exception that we did not come within a marine league of the shore. We inserted the clause of renunciation.

The British plenipotentiaries did not desire it."

1854, June 5,

The conclusion of the reciprocity treaty rendered the re-assertion of the disputed claim by the Nova Scotian secretary of no importance, and disposed of all the other questions for the time being. (10 Stat. at Large, page 1089.)

1865, Mar. 17.


Notice was given to abrogate the reciprocity treaty, the abrogation to take effect in one year from the notice.

The Canadian government then resorted to the system of licensing American fishermen to fish in the in-shore fisheries. The number of licenses taken out the first year is reported to have been 354. (Review of President's message, page 23.) The fee is stated to have been fifty cents per ton. (Manuscript review of the review, page 27.) The license-fee the next year was one dollar per ton. (Manuscript review, &c., page 27.) The number of licenses was 281. (Review, &c., page 23.)



The license fee was again doubled, viz, to two dollars per ton, (Ms. review, &c., page 27;) only fifty-six licenses were taken out in 1868, and in the following year (1869) only twenty-five licenses were taken out. (Review of President's message, page 23.)

1868, May 22. 1970, May 12.

The Dominion "act respecting fishing by foreign vessels," passed in 1868, and the third section, amended in 1870, contains, among other provisions, the following: Section 1, authorizing the granting of licenses. Section 2, authorizing officers to board

« PreviousContinue »