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fish on certain coasts, bays, harbours, 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, for ever, 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 Rameau 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, harbours, 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's Bay Company: And that the American fishermen shall also have liberty, for ever, to dry and cure fish in any of 10 the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland, hereabove 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 so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce, for ever, 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 harbours 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 harbours for the purpose of shelter and of repairing damages therein. of purchasing wood, and of 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.
Comparison of the two treaties.-It will be observed that the 1818 treaty is silent as to the bank fisheries. These were not then in dispute. Comparison of the provisions of the two documents, so far as relates to coast fisheries, may be made as follows:
Liberty to Take Fish on:
1. Such parts of Newfoundland coast as British fishermen shall use. 2. On the coasts, bays and creeks, of all other British dominions in America.
Liberty to Dry and Cure Fish in
Any bays, harbours, and creeks for the time being unsettled of1. Nova Scotia.
2. Magdalen Islands.
Liberty to Take Fish on
1. Coast of Newfoundland-Cape Ray to Rameau and Cape Ray to Quirpon.
2. Shores of Magdalen Islands.
3. Coasts, bays, harbours, and creeks of Labrador, from Mount Joli, eastwardly and northwardly.
Liberty to Dry and Cure Fish in
Bays, harbours, and creeks for the time being unsettled of1. Coast of Newfoundland-Cape Ray to Rameau.
2. Coast of Labrador.
Renunciation of liberty to take, dry, or cure fish on or within three miles of all other coasts, bays, creeks, or harbours.
Proviso for entry to such bays or harbours for shelter, repairing damages, wood, and water, and for no other purpose whatever.
This comparison shows the following facts:
1. The liberties of the 1818 treaty are very much more restricted than those of the 1783 treaty.
2. Some of the liberties of 1818 were new, that is, they had not been conceded in 1783.
REASONS FOR CONCESSION.
Concession of 1818.-The motives which actuated this new concession of fishing liberties are very clearly disclosed in the contemporaneous correspondence. The British Government absolutely repudiated all assertion of right upon the part of the United States, but yielded to the other considerations which were urged upon them, namely, friendship and regard for the benefits which would accrue to American fishermen, among whom were (App., p. 66)—
multitudes of people who were destitute of any other means of subsistence,
and who would thus be
afforded the means of remittance to Great Britain in payment for articles of her manufactures exported to America.
BRITISH STATUTE, 59 G. III, c. 38.
1819. The British Parliament passed a statute intituled "An Act to enable His Majesty to make regulations with respect to the taking and curing fish on certain parts of the coasts 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," and in pursuance of that statute an Order-in-Council was passed (19th June) containing instructions of general character to the Governor of Newfoundland. (App., p. 565.)
SOVEREIGNTY IN NEWFOUNDLAND.
1822-3.-Question having arisen between the United States and France as to the validity of the latter's claim to the exclusive right of
fishing upon that part of the Newfoundland coast upon which French fishermen had privileges under the treaty with the United Kingdom of 1783, and France having assumed to eject American vessels from such coasts, the United States asserted that the sovereignty over the territory was in the United Kingdom. (App., pp. 102–8.)
COMMERCIAL ENTENTE, 1830.
1830. By mutual executive action, certain relaxation was made in the navigation laws of the two nations. United States vessels were permitted for the first time to (App., p. 570)—
import from the United States aforesaid, into the British possessions abroad, goods the produce of those States; and may export goods from the British possessions abroad to be carried to any foreign country whatever.
Fishing vessels were not within the purview of these arrangements.
NOVA SCOTIA STATUTE, 1836.
1836.-The great difficulty and expense of effective patrol of the very extensive coast-lines embraced in the convention of 1818 had produced wide-spread neglect of its limitations. A few seizures had been made during the period 1820-1830. Renewed depredations led to the passing in 1836 of legislation (App., p. 613) in Nova Scotia (afterwards declared by Imperial Order in Council to be regulations under the Imperial statute of 1819), and also to a more strict enforcement of its rights by the British Government. (App., p. 571.)
SEIZURE IN BAY OF FUNDY, 1843.
1843.-The United States fishing vessel "Washington " was seized for fishing in the Bay of Fundy.
BRITISH CONCESSION OF BAY OF FUNDY, 1845.
1845. After some discussion the British Government announced their intention to allow American fishermen to fish within the Bay of Fundy as a matter of grace, although advised that it was a bay within the meaning of the treaty of 1818, and, therefore, water in which those fishermen could not claim to fish as of right. (App., p. 141.)
MR. WEBSTER, 1852.
1852.-The British Government having declined to make a similar relaxation as to bays other than the Bay of Fundy, Mr. Daniel Webster, United States Secretary of State, issued a notice dealing with the application of the treaty to bays. Subsequently the same subject was debated in Congress. Both these matters are further discussed under question No. 5. (App., p. 152.)
1853.-Mr. Marcy, United States Secretary of State, issued circular instructions as to the conduct of American fishermen, to which reference will be made hereafter. (App., p. 201.)
1854. The treaty known as "the reciprocity treaty was entered into. It admitted American fishermen to the enjoyment of all British coast fisheries in the Atlantic in exchange for admission of British fishermen to certain United States coast fisheries, and it provided also for reciprocal abatements in customs dues. During the currency of this treaty, American fishermen were permitted to purchase supplies in British ports; but light-dues were exacted and paid without objection. (App., p. 36.)
1855-6.-Mr. Marcy issued further circular instructions as to the conduct of American fishermen. (App., pp. 207, 209.)
BAY OF FUNDY ARBITRATION, 1856.
1856.-Arbitration took place with reference (amongst other things) to a claim by the owner of the "Washington " against the British Government in respect of the seizure in 1843. (App., p. 212.)
1866. The reciprocity treaty was terminated by the United States. Negotiations for its renewal ensued, and meanwhile the fishing privileges conferred by it upon United States fishermen were continued under a system of licenses for which an annual fee was charged.
DOMINION OF CANADA, CONSTITUTED, 1867.
1867.-Canada, Nova Scotia, and New Brunswick were united under the name "The Dominion of Canada."
1870.-American fishermen having gradually ceased to take licences, the system was ended (Canadian Order in Council, 8th January). (App., p. 230.)
MR. BOUTWELL'S CIRCULAR, 1870.
1870.-Mr. Boutwell (United States Secretary of State) issued a circular of instructions (9th June), in which he said that (App.. p. 237)
Fishermen of the United States are bound to respect the British laws and regulations for the regulation and preservation of the fisheries, to the same extent to which they are applicable to British or Canadian fishermen.
This circular was re-issued two years later.
TREATY OF 1871.
1871.-A treaty, known as the treaty of Washington, made provisions somewhat similar in terms to the reciprocity treaty of
14 1854. The arrangements as to the fisheries lasted until 1885, when they were terminated on the initiative of the United
1873.-Prince Edward Island became part of the Dominion of Canada. Prior to this year it was a province by itself.
HALIFAX COMMISSION, 1877.
1877. Great Britain having claimed that the fishing liberties conferred on the citizens of the United States by the treaty of 1871 were of greater value than the reciprocal advantages acquired by British subjects, the treaty provided that this claim should be referred to a commission, and that compensation should be awarded if found due. The Commission met at Halifax, and eventually awarded 5,500.000 dollars to Great Britain. The proceedings before this Commission are of some importance, and will hereafter be referred to. (App., p. 254.)
FORTUNE BAY, 1878.
1878.-Newfoundland inhabitants, wrongfully taking the law into their own hands, interrupted some American fishermen while carrying on their operations in Fortune Bay, under the treaty of 1871. The justification alleged was that the Americans were committing breaches of three of the provisions of Newfoundland statutes:
1. Establishing a close season for taking herrings by certain methods;
2. Prohibiting the "barring" of herrings in coves, &c.; and 3. Prohibiting fishing on Sunday.
The amenability of American fishermen to these laws was asserted by the United Kingdom, and denied by the United States. In the end, Great Britain paid compensation, on the ground that individual citizens of Newfoundland had no right to take the enforcement of the law into their own hands, but the contention that the Newfoundland laws were binding on United States fishermen was expressly maintained. (App., p. 289.)
1885. The fishery clauses of the treaty of 1871 having been terminated by the United States, temporary diplomatic arrangements continued the application of their provisions throughout the season
CANADIAN STATUTE, 1886.
1886. Further agreement not having been made, Canada adopted a statute (49 Vict., cap. 114) for the purpose of removing the doubt