CHAPTER XXIX-FOREIGN RELATIONS

173.

Northeastern Fishery Question (1854-1887)

BY CHARLES BURKE ELLIOTT (1887)

Elliott is well known as a jurist, and as a lecturer on international law. Under the treaty of peace in 1783 the United States continued to exercise all the privileges of fishing off the Newfoundland coast which the states had possessed as colonies. The War of 1812 abrogated the right; and since 1818, except during periods covered by temporary treaties, the privileges have been such as were granted by a treaty ratified in that year, and the main controversies over the fisheries have been as to the interpretation of this treaty. After the period covered by this extract a treaty was framed, but it was rejected by the Senate in 1888; hence the international status is still based on the treaty of 1818. Bibliography: C. B. Elliott, The United States and the Northeastern Fisheries, 135-144.

ORD ELDON [Elgin], Governor-General of Canada, evidently when it could with truth be called "a tender case," came to Washington in 1854 for the purpose of securing to Canadian fishermen that most desirable object-a Reciprocity Treaty. . . .

This treaty was signed by Secretary Marcy on the part of the United States and by Lord Eldon [Elgin] acting as Minister Plenipotentiary on the part of Great Britain.

By the First Article, "It is agreed by the high contracting parties, that, in addition to the liberty secured to the United States fishermen by the above mentioned Convention of October 20, 1818, of taking, curing, and drying fish on certain coasts of the British North American colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell fish, on the sea coasts and shores, and in the bays, harbors and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore; with permission to land upon the coasts and shores of those colonies and the islands thereof, and also upon the Magdalen Islands, for the purpose of

drying their nets and curing their fish; provided, that, in so doing, they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coast in their occupancy for the same purpose."

By this treaty the American fishermen gained fishing rights analogous to those enjoyed under the treaty of 1783, while the Canadians obtained a market for their natural products free of duty.

Now commenced a period of unexampled prosperity for the Canadian fishery interests. The trade quadrupled and American fishermen were now received on the former inhospitable coasts with open arms.

But the American fishermen were not satisfied with thus contributing so materially towards building up the business of their competitors at the expense of their own interests.

It soon became evident that the loss of revenue from the remission of duty on Canadian importations far exceeded the value of the fishing rights conceded to American fishermen. The Canadian fishermen by reason of their proximity to the fishing ground and the cheapness of labor and material for building boats were enabled to compete with the Americans to such an extent as to render their business unprofitable. The result was that in March, 1865, the treaty was terminated in pursuance of notice given by the United States one year before. . . .

On the 8th of January, 1870, the Governor-General of Canada issued an order" that henceforth all foreign fishermen shall be prevented from fishing in the waters of Canada." This was such a gross and palpable violation of the treaty [of 1818] then in force that, on May 31st, 1870, the Secretary of State called the attention of the British Minister to the illegal order and requested its modification. The negotiations thus commenced resulted in the fishery articles of the treaty of 1871, known as the treaty of Washington. By Article XVIII of this treaty, Article I of the Reciprocity Treaty of 1854 was revived with the stipulation that it should exist for a term of ten years and for two years after notice of its termination by either party. . . . By Article XXI it was agreed that for the term of years stated, "Fish oil and fish of all kinds (except fish of the inland lakes and of the rivers falling into them, and except fish preserved in oil,) being the produce of the fisheries of the United States or of the Dominion of Canada, or of Prince Edward's Island, shall be admitted into each country, respectively, free of duty."

During the negotiations that led to the Treaty of Washington, the United States offered one million of dollars for the inshore fisheries in

perpetuity, not because they were of that value but in order to avoid future inconvenience and annoyance.

The British Government asserting that the privileges accorded to the citizens of the United States were of greater value than those accorded to the citizens of Great Britain, it was provided by Article XXII of the Treaty of Washington that a commission should be appointed to determine the value of these additional privileges, "having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty."

The award was not made until the 23rd of November, 1887 [1877], when, by a vote of two to one, the Commissioners decided that the United States was to pay five million five hundred thousand dollars for the use of the fishing privileges for twelve years. The decision produced profound astonishment in the United States. . .

The customs receipts for the four full years from 1873 to 1877 showed that the United States had remitted duties on fish amounting to three hundred fifty thousand dollars a year, and that adding this to the award it was equivalent to almost ten million dollars for the use of the inshore fisheries for twelve years, while they were not worth more than twentyfive thousand dollars a year. Notwithstanding these facts the Committee recommended the payment of the award if Great Britain was willing to accept it.

On a motion to approve the report of the Committee, Senator Edmunds offered an amendment declaring that "Article XVIII and XXI of the Treaty between the United States and Great Britain concluded on the 8th of May, 1871, ought to be terminated at the earliest period consistent with the provisions of Article XXXIII of the same treaty." This was adopted and the money necessary to pay the award was appropriated. . .

In pursuance of instructions from Congress the President gave the required notice of the desire of the United States to terminate the Fishery Articles of the Treaty of Washington, which consequently came to an end the 1st of July, 1885. . . .

During the season of 1886 the Canadian authorities pursued a course little adapted to lead to the end they so much desired, - a new reciprocity treaty. Notwithstanding the fact that the Government of the United States emphatically denied the applicability of local customs regulations to the case of the fishermen pursuing their occupation under the protection of the treaty of 1818, the Canadians persisted in enforc

ing their construction of the treaty with reckless and uncalled for severity; even to the extent of refusing to sell articles of food to the captain of an American fishing vessel who had exhausted his supply by rendering assistance to the starving crew of a wrecked Canadian boat. Many American vessels were seized, warned, or molested in such manner as to break up their voyages and entail heavy loss upon the owners.

These seizures and the constant complaints of the fishermen led to an elaborate correspondence between the two governments. In order to justify their acts, the Canadian authorities resort to a very strict and literal interpretation of the language of the convention of 1818, and assume the power to enact legislation for the purpose of construing a contract entered into by the Imperial Government, "an assumption of jurisdiction entirely unwarranted and which is wholly denied by the United States." They also deny to the fishing vessels any commercial privileges, thus assuming the right to decide upon the efficacy of permits to "touch and trade," issued by properly qualified officials of the United States, on the ground that to allow fishing vessels to enter the harbors under such permits would in effect operate as a repeal of the restrictive clauses of the treaty.

The United States Government claims that the Treaty of 1818 related solely to the fishing rights of American vessels on the British North American coasts, and that it in no way affects their commercial rights ; that a vessel may be a fisher and yet be entitled to all the privileges of a trader, and that the language of the treaty should be liberally construed. . .

The United States also claims for its fishermen the right to enter Canadian harbors for the purpose of selling and purchasing goods, procuring bait to be used in deep sea fishing, landing and trans-shipping fish, and, generally that each party should allow to the fishing vessels of the other such commercial privileges as are permitted her own shipping in the ports of the others.

Admitting that the words "for no other purpose whatever" in the fishery clause of 1818, rebut the idea that commercial privileges were to be granted to the United States, as at that time Great Britain had closed all her colonial ports to foreign vessels by law, it is claimed that she opened them in the same way by the proclamation of 1830, and that they stand open until closed by law. "Since the proclamation (of 1830) the fishing vessels of Canada have enjoyed in the ports of the United States every privilege of commerce flowing from those proclamations.

Not only did Canada know this, but a perverse disposition has induced her, while continuing in their unrestricted use and enjoyment, to endeavor to deprive our fishermen of their similar rights in Canada.”

In May, 1886, Congress gave to the President power to suspend commercial relations with Canada, in addition to the power possessed since 1823, of discriminating against foreign vessels in the ports of the United States. During the Second Session of the Forty-ninth Congress the indignation of the country found expression in two bills looking towards retaliation. The one introduced in the House of Representatives prohibited all commercial intercourse with Canada, by land or water.

The Senate would not agree to so radical a measure and proposed a bill intended to apply to that portion of our commerce with Canada carried on in Canadian vessels. This bill was the occasion of a debate in the Senate in which some of the Senators, notably Senator Ingalls, took advantage of the opportunity to refer to Great Britain in terms far from complimentary.

For several weeks the fishery question was the all-absorbing topic, and threats of war were freely made. The power thus vested in the President has not been exercised and negotiations have been continued looking to a settlement of the question by other means. . . .

The Canadian authorities have taken a position and seem inclined to defend to the end what they consider their rights. Their cruisers are guarding the fishery grounds, and collisions with the fishermen are liable to take place at any time. The United States has also sent a war vessel to the coast with instructions to watch over American interests.

What was practically the Senate bill passed both houses and received the President's approval on the 3rd of March, 1887.

The enforcement of the provisions of this so-called retaliatory law was left entirely in the discretion of the President, but as the administration was pledged to the British Government to attempt to solve the questions by means of another Joint Commission, the President has not seen fit to infuse life into it. The British statesmen continued to urge the plan of a Commission until success again crowned their efforts and a new Fishery Commission is announced to meet in Washington in the near future. It is to be hoped that its labors, should they receive the sanction of the Senate will prove less prejudicial to the interests of the United States, than those of its predecessor.

Charles B. Elliott, The United States and the Northeastern Fisheries (Minneapolis, 1887), 74-100 passim.