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1868-1888 Chapter III THE FISHERIES DISPUTE

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CHAPTER III.

THE FISHERIES DISPUTE

Our glance at the Treaty of Washington introduces us to an international complication which has been transmitted from the very birthday of the nation, and is, alas, still unsettled, spite of the earnest efforts to this end made since 1885. Article 3 of the treaty of 1783 was as follows: "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 at 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 Britannic Majesty's dominions in America, and that the 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 provision conveyed to fishermen from the United States two valuable privileges --that of fishing in British waters, namely, within three miles of the British coast, and that of drying and curing fish, wherever caught, upon certain convenient parts of the British coast.


They had, of course, like the men of all nations, apart from any treaty stipulation, the right to fish outside the three mile limit, but this would avail them nothing, under the then mode of conducting the industry, unless they could freely make harbor in case of storm, and also land to cure their catch before lading it for the homeward cruise. What worth these rights had will be clear if we remember that fishing had always been one of New England's foremost trades, and that the waters off Newfoundland and Nova Scotia had from, and probably before, Columbus's time been known as the richest fishing grounds of the globe.

The commissioners at Ghent, who drew up the treaty ending the War of 1812, wrangled long over the question whether or not the war had nullified the just cited Article 3 of 1783. Unable to agree, they signed their treaty without deciding the question, leaving this for the future to settle as it might. Great Britain held that our former rights had lapsed by the war, and excluded our fishing vessels from the bays, harbors, and creeks named above.


Several of our vessels were arrested on charge of trespass. The utmost tension still existed, in spite of the peace, especially as in the United States the view prevailed that our rights by the old treaty had outlived the war, notwithstanding the silence of the Ghent document.

At length, in 1818, a new treaty was entered into upon the question, signed October 20th, ratified by England November 2d, and by the United States January 28, 1819. This instrument ignored our contention that Article 3 of the treaty of 1783 was of perpetual obligation, and restricted our right to fish in shore to the southern shores of the Magdalen Islands, the west and southwest coasts of Newfoundland from the Rameau Islands round to Quirpon Island, and the Labrador coast from Mount Joly northward. Only here could our fishermen fish within the three mile limit, and they could dry and cure only on the named parts of Labrador and Newfoundland, Magdalen Islands being now excluded from this use. Even on Labrador and Newfoundland the privilege of drying and curing was to be cut off by settlement, except as agreement should be made beforehand with the inhabitants.


But the fateful clause of this treaty was the following: "And the United States hereby renounce 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 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 of obtaining water, and for no other purposes 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."

Troubles were soon as abundant as ever.


The Canadians applied the word "bay" to all indentations of their coast, affecting entirely to exclude our fishermen from great bodies of water like Fundy, Chaleurs, and Miramichi, however far parts of these might be from shore. This was the famous "headland theory" for defining national waters. They also denied our right to navigate the Gut of Canso, which separates Cape Breton Island from Nova Scotia, thus forcing far out of their nearest course our ships bound for the permitted inshore fisheries. United States fishermen on their part persisted in exploiting the great bays, landed upon the Magdalen Islands, pushed through the Gut, and were none too careful at any point to find or heed the three mile line.

June 5, 1854, was signed a treaty of reciprocity between the United States and the British provinces, under which all the coasts of British North America were opened to our fishing vessels, in return for similar liberty to those of the provinces in all United States waters north of Cape May, latitude 36 degrees, the salmon and shad fisheries of each country being, however, reserved to itself.


This arrangement was to continue ten years at least, and then to be terminable on a year's notice by either of the high contracting parties. Such notice having been given by the United States one year before, reciprocity in fishing privilege came to an end March 7, 1865. This, of course, renewed the wry and perplexing rules of the 1818 convention, with all the naturally consequent strife. The worst evils were, indeed, put off for a time, by a continuance to our vessels of the right to fish in provincial water on the payment of a small license fee. This favor was taken away in 1870, for the alleged reason that American captains failed to procure licenses, and in the course of this year many of our ships were seized and confiscated. New sternness had been imparted to the provincial policy by the Canadian Act of Confederation, valid from July I, 1867, which joined Ontario and Quebec with Nova Scotia and New Brunswick, thus inspiring our neighbors to the north with a new sense of their strength and importance.


Now came the Treaty of Washington, 1871. Its Article 18 revived Article 1 of the 1854 Reciprocity Treaty, except that Canadians could now go so far south as the 39th parallel, and that two years' notice must precede abrogation. Article 21 ordained between the two countries free trade in fish-oil and in all salt-water fish. Both sides assumed that mere reciprocity would advantage the United States the more, so that by Article 22 a commission was provided for to award Canada a proper balance in money. By bungling diplomacy on our part the real power in this commission was swayed by M. Maurice Delfosse, Belgian minister at Washington, a gentleman certain to favor Great Britain at our expense. As a consequence, we were forced to pay for reciprocity to the round note of $5,500,000. The money was a trifle; but its exorbitant amount had the unhappy effect of prejudicing our people against the new arrangement. The result was that at the earliest possible moment, viz., July 1, 1883, our Government gave the notice necessary for its abrogation.


This followed on July 1, 1885, in the very midst of the fishing season. A temporary diplomatic arrangement was effected, which continued to our fishermen for the remainder of 1885 the advantages of the recent treaty; but with the dawn of the new year, 1886, the old convention of 1818 came once more into operation.

So soon as the fishing season was opened the plan of the British Government was evident. It was to deny the fishing vessels all facilities not guaranteed by the treaty of 1818--that is, fishing vessels of the United States would be permitted to enter Canadian ports for shelter, repairs, wood, and water, and "for no other purposes whatever;" also to compel all such vessels strictly to conform to both customs and port laws. Circular letters of instruction, enjoining vigilance, were sent to all customs officers, and swift cruisers fitted out to look sharply after all fishing vessels from the States.


On the other hand our fishermen were not, as a whole, disposed to conform to the existing regulations. The Treaty of Washington had been abrogated at their request, and now many, probably most, of them were inclined to exercise all the liberty possible in the Canadian waters. Least of all were they willing to submit to the British interpretation of the treaty of 1818.

Complaints early reached Washington that the headland theory was being applied by the provincial customs officials to exclude our vessels from legitimate fishing places; but the Canadian Government denied that any such thing had been done by its authority, and evidently did not incline to push its old contention on this point. While the fishing schooner Marion Grimes, of Gloucester, Mass., was under detention at Shelburne, Nova Scotia, for an infraction of the customs rules, her captain having hoisted the United States flag, this was pulled down by order of the Canadian officer in temporary charge of her.


The flag was again hoisted and again forcibly lowered. This act awakened great resentment in the United States, until it, too, was disavowed by the Governor-General in Council. The Sarah H. Prior lost at sea a valuable net, which a Canadian schooner picked up and wished to return. This was forbidden, and being permitted to purchase no other seine, the ship came home with a broken voyage and in debt. Captain Tupper, of the Jeannie Seaverns, having entered the harbor of Liverpool, Nova Scotia, for shelter, was denied permission to go and see his relatives near by or to receive them aboard his vessel. The water-tank of the schooner Mollie Adams having burst, her captain sought to buy two or three barrels to hold water for his crew on their homeward voyage of five hundred miles. His request was refused.


The same Mollie Adams found a Nova Scotia vessel in distress and rescued her crew. Captain Jacobs, of the Mollie, cared for the men several days, and finally, as no assistance of any sort was proffered by the Canadians, sent them home at his own expense. His aid to them delayed his homeward journey, and he was also caught in a harbor from which his vessel could pass only during very high water, which caused further delay. Owing to these incidents his supply of provisions ran low, yet he was denied permission to purchase anything, and as a result his homeward tour was made on half rations or less. Many other aggravating circumstances were connected with this case.

In quite a number of instances American masters were refused water, the only excuse being that they had not conformed to all the port or customs regulations. There can be no doubt that many fishing captains were quite too lax in this, presuming on the power of their nation and remembering the liberties enjoyed under reciprocity, while too forgetful of the stern letter of the treaty which the Canadians were executing against them. It was plain on the other hand that however wrongly Canadian subalterns may at times have acted, both the Canadian and the British Government intended to keep within the letter of the law, while forcing us to fish off their coasts at as great a disadvantage as possible.


The real source of the difficulty was well characterized by Mr. Phelps, our Minister to England. "It is to be found in the irritation that has taken place among a portion of the Canadian people on account of the termination by the United States Government of the treaty of Washington on the 1st of July, 1885, whereby fish imported from Canada into the United States, which so long as that treaty remained in force was admitted free, is now liable to the import duty provided by the general revenue laws; and the opinion appears to have gained ground in Canada that the United States may be driven, by harassing and annoying their fishermen, into the adoption of a new treaty, by which Canadian fish shall be admitted free."


In their efforts to carry out such a policy the treaty gave the Canadians a very great advantage. As Mr. Secretary Bayard insisted, it certainly trangressed usual international comity when our ships were refused needed pilots, or our hungry crews were forbidden to purchase food in Canadian ports; but our President and Senate had, in 1818, agreed that such cruelty should be legal. To ask for comity in the matter was to ask for the voidance of the treaty.

As little could we, agreeably to the treaty, presume, by use of home permits to "touch and trade," to turn a fishing vessel at will into a merchant vessel, as was often tried in order to evade the offensive restrictions, or demand the liberty of freighting fish home overland in bond. It would equally have amounted to a quashing of the treaty, had the British and Canadians interpreted it by the easy canon of Mr. Phelps: "The question is not what is the technical effect of the words, but what is the construction most consonant to the dignity, the just interests, and the friendly relations of the sovereign powers."


Interesting but also untenable was our Government's plea for freedom to purchase bait for deep-sea fishing. Of old, mackerel had been caught almost solely with hooks, by the "chumming" process. In 1850 the purse seine was introduced. Soon after 1870 its use became general, and entirely revolutionized the business of taking mackerel. Huge quantities of the fish could now be captured far out in the open sea, making fishing much more profitable near home, and greatly lessening the value to us of Canada's fishing-grounds. From these premises Mr. Bayard argued that the true intent of the 1818 agreement, which was to protect inshore fishing territory, would not be violated should we be allowed to buy bait in Canada. It was replied that the old treaty was meant to prevent our fishermen from making Canadian harbors in any way a base of operations.


"It was framed with the object of affording a complete and exclusive definition of the rights and liberties which the fishermen of the United States were thenceforward to enjoy in following their vocation, so far as those rights could be affected by facilities for access to the shores or waters of the British Provinces, or for intercourse with their people. It is therefore no undue expansion of the scope of that convention to interpret strictly those of its provisions by which such access is denied, except to vessels requiring it for the purposes specifically described. Such an undue expansion would, upon the other hand, certainly take place if, under cover of its provisions, or of any agreements relating to general commercial intercourse which may have since been made, permission were accorded to United States fishermen to resort habitually to the harbors of the Dominion, not for the sake of seeking safety for their vessels or of avoiding risk to human life, but in order to use those harbors as a general base of operations from which to prosecute and organize with greater advantage to themselves the industry in which they are engaged.


"Mr. Bayard suggests that the possession by a fishing vessel of a permit to 'touch and trade,' should give her a right to enter Canadian ports for other than the purposes named in the treaty, or, in other words, should give her perfect immunity from its provisions. This would amount to a practical repeal of the treaty, because it would enable a United States collector of customs, by issuing a license, originally only intended for purposes of domestic customs regulation, to give exemption from the treaty to every United States fishing vessel. The observation that similar vessels under the British flag have the right to enter the ports of the United States for the purchase of supplies loses its force when it is remembered that the convention of 1818 contained no restriction on British vessels, and no renunciation of any privileges in regard to them."


For some weeks in the spring and summer of 1886, the fishery dispute greatly excited our country. Even threats of war with Canada were uttered in case its government should not recede from its aggravating position, and careful estimates made of the force we could throw across our northern border in three days. In May, 1886, Congress placed in the President's hands power to suspend commercial intercourse between the two countries. Later in the year a bill was introduced in the House cutting off all commercial relations with Canada by land or water. The Senate advanced a more moderate proposition, to limit the proposed arrest of traffic to water commerce and to Canadian vessels, also to leave its enforcement optional with the President. This became law on March 3, 1887. Under this legislation the President, on being assured that fishing masters or crews were treated in Canadian ports any less favorably than masters or crews of trading vessels from the most favored nations, could, "in his discretion, by proclamation to that effect, deny vessels, their masters and crews, of the British dominions of North America, any entrance into the waters, ports, or places of or within the United States."


The President, however, did not think best at once to use this fearful power, likely enough to lead to war. He preferred to make another attempt at a peaceful settlement, through a new treaty. This had constantly been the wish of the British Government. Accordingly, later in the year 1887, a joint commission, consisting of Secretary Bayard, President Angell, of Michigan University, Hon. William L. Putnam, of Maine, on the part of the United States, and of Rt. Hon. Joseph Chamberlain, Sir Charles Tupper, of Canada, and Sir Lionel West, the British minister, on the part of Great Britain, met at Washington. The commission toiled nearly all winter, and passed to the President the result of its deliberations on February 16, 1888.

The treaty which it drafted was necessarily a compromise. Canada thought the British commissioners had yielded too much; many in the United States believed our commissioners to have done the same. The document, approved by the President, went to the Senate, where, after long debate, it was refused ratification, August 21st.


The commission had agreed upon a modus vivendi, to hold good, unless revoked by the Governor-General and Council of Canada, till February, 1890, under which our fishermen might obtain in Canadian ports, on payment of a license, the privileges of merchantmen. Many such licenses were taken out during the season of 1888, showing the advantages which they conveyed. Most of the fishing-masters, however, did not seek licenses and were averse to the new treaty, preferring the terms of 1818 to granting their rivals any further rights in our markets. Fresh fish, including frozen and slack-salted, was already free in our ports, competing sharply with our own catch. No one longer cared to fish inside, or, except in emergencies, to provision at Canadian towns. Convenient as would be the power to obtain bait near the fishing-grounds and to trans-ship fish home in bond, neither was indispensable. Cod are still caught with trawls and baited hooks.


THE FISHERIES DISPUTE 269

The best bait is squid, whose abundance upon the Banks is what causes the cod so to frequent them. The squid can be had freshest as well as cheapest from the peasantry of the Newfoundland and Nova Scotia coasts; but clams carried from home were found to do nearly as well. They would remain fresh better than squid, but got off the hooks more easily. Accordingly, few collisions occurred in 1888, and as the season of that year closed there was prospect that, even without a new convention, no necessity for American retaliation would arise.

This chapter shall close with a word touching the Alaska fisheries question, which, fortunately, had advanced a good step. In 1870 the United States leased the Pribylov, or Seal Islands off Alaska, to the Alaska Commercial Co. Pressed by this company, which naturally wished the completest possible monopoly of seal-fishing, our Government foolishly affected to treat the entire Behring Sea as a mare clausum, belonging to the United States.


Several British craft engaged in taking seals were seized by United States vessels considerably more than three miles from land. Great Britain of course protesting, a treaty, ratified in March, 1892, submitted to arbitration the question between the two governments. Seven arbitrators sat, two from the United States, Justice Harlan and Senator Morgan, and one each from Canada, Great Britain, Sweden, France, and Italy. This Board decided against the American contention, denying the right of the United States to assume the protection of seals or any property in them outside the ordinary three-mile limit. Happy provisions were, however, made for a joint police of Behring Sea by the two nations, for an open and a closed fishing season, and for the careful licensing of sealing vessels.

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