GREAT BRITAIN, FISHERIES. Statement of the persons employed by the United States in conducting negotiations since 1789-Continued. APPENDIX D. . FISHING GROUNDS. Under the treaty of 1818. The 3-marine-mile limit, which is the claim of American fishermen, is in Of this area there is in bays cut off by the 3-mile limit. Making a total, as stated, of.. The claims of Canadian fishermen, from headland to headland, would add to the area claimed by American fishermen.. Marine sq. miles. 16, 424 6,599 9,825 16, 424 6, 164 22.588 16,424 Under the proposed treaty of 1888. The American fishermen's claim is conceded to Canada, and is equal to... 16.424 And in lieu of the 6,164 marine square miles, from headland to headland, as claimed by the Canadians, the Americans concede to them as follows: First. At bays of 10 miles or less in width: In Newfoundland, 8 bays, of In New Brunswick, 8 bays, of In Prince Edward Island, 3 bays, of In Cape Breton, 2 bays, of. 200 67 18 13 85 383 In Nova Scotia, 11 bays, of.. In all, 32 bays, of (colored brown)................... Second. At the bays named between lines 63 and 80, Article IV. pro Third. At bays named between lines 81 and 93 in Article IV of proposed treaty of 1888 (colored in parallel red lines): 500 23 20 5 160 2 710 This gives a total concession by Americans under the proposed treaty of 1888 of 1,127 In lieu of a total concession by the Canadians from their headland to headland claim of.. 5,037 GREAT BRITAIN, FISHERIES. APPENDIX E. THE PENDING TREATY. Review of the fisheries negotiations, by W. L. Putnam, historical and explanatory, from the beginning of the controversy to the present time-What the treaty undertakes to do-Hostile criticism met. We give below a valuable review of "The fisheries negotiations-historical and explanatory," by the Hon. William L. Putnam, of the commissioners who framed the pending treaty. The paper was prepared for the Portland Fraternity Club and read at a recent meeting. It is an important contribution to the present discussion, and meets adverse criticisms which have been made upon the work of the commission. Concerning the provisions of the convention of 1818, that our fishermen may enter the bays or harbors of Her Majesty's dominions in Newfoundland and eastern Canada for the purposes of shelter and of 1epairing damages therein, of purchasing wood and of obtaining water, and for no other purposes whatever," and are liable to "such restrictions as may be necessary to prevent their taking, drying, or curing fish ther in, or in any other manner whatever abusing the privileges" reserved to them, confusion has arisen in Canada and also in the United States on the Canadian side by converting this limitation of a guaranteed privilege into a universal one, and on our side by overlooking the indubitable fact that the practice of nations recognizes a broad line between fishing vessels and ordinary merchant vessels, granting to each class privileges not possessed by the other. From a time at least as early as A. D. 1836 to the present the claim of Nova Scotia, and afterwards of Canada. has been inflexible that a fishing vessel is sui generis, and, if foreign, has no privileges within British bays and harbors, except those specifically authorized by some law of Great Britain or of her dominions, or by treaty, or by the strictest rules of humanity; though at times this claim has lain dormant in part, and Great Britain herself has not quite countenanced its practical exercise to its full extent. During all this period this construction, although often complained of by the United States, never has been practically overthrown by us in any particular. Very soon after the ratification of the convention of 1818 the British Parliament passed the statute (chapter 38, George III) which condemned to forfeiture vessels of the United States, and of all other nations foreign to Great Britain, fishing or "preparing to fish' within the prohibited waters. These words, “preparing to fish," found in this early act, have been the cause of many troubles and are susceptible of a variety of construction. They have been found in every provincial and Dominion statute relating to this matter passed at different periods, four or five in all; and they have received the sanction of long practical acquiescence on the part of the United States, and, we may also add, the full and cordial approval of so distinguished an American law writer as Professor Pomeroy. On the 12th of March, 1836, nearly one year before President Jackson went out of office, there was passed the act of Nova Scotia, the model of all the legislation since enacted, at which is aimed the thirteenth article of the treaty just negotiated. This act was specially validated by royal orders in council, and provided that local officers might seize and bring into port vessels hovering on the coasts of Nova Scotia, and repeated the penalty of forfeiture for those fishing or "preparing to fish" within the prescribed waters. the vessel seized without first giving security for costs not exceeding 60 pounds. It also provided that no person should be admitted to claim It also threw on the owner the burden of proof in any suit touching the illegality of seizure. It so hampered the right of action for unjustifiable arrests of vessels as to render it substantially worthless; and it was so extreme in its provisions that the vessel could not be bailed without the consent of the person seizing her. All these provisions have been continued in every statute of the Dominion from that time to the present. In A. D. 1838, 1839, and 1840, during the Administration of Mr. Van Buren, and while John Forsyth was Secretary of State and Levi Woodbury Secretary of the Treasury, sixteen of our vessels were proceeded against at Halifax and all confiscated except one. Webster was Secretary of State, seven were seized and proceeded against, only During the first year of the next Administration, and while two of which were restored. These prosecutions were under this statute of 1836. It is not certain that Mr. Forsyth knew of its existence until near the close of his term of office, when he made an earnest remonstrance against it. The records also fail to show that Webster in any way took notice of it, although after Webster retired from the Cabinet Mr. Everett, while minister at London, under instructions from Mr. Upshur, then Secretary of State, reiterated the complaints of Mr. Forsyth. When Webster again became Secretary of State, and not long before he died, he made the famous speech at Marshfield. in which he said: "It is not to be expected the United States would submit their rights to be adjudicated in the petty tribunals of the provinces, or that we shall allow our own vessels to be seized by constables or other petty officials and condemned by the municipal courts of Quebec, Newfoundland. New Brunswick, or Canada. Notwithstanding this, from the time the statute was enacted, in A. D. 1836, till the present negotiations, not only was its repeal or modification not secured by the United States, and not only, contrary to the phrases of Webster, did the United States submit the rights of their vessels to be adjudicated in the tribunals of the provinces and allow them to be seized by provincial constables and other provincial petty officers, but in A. D. 1868, and afterwards in A. D. 1870, the Dominion, without protest from us, reenacted and intensified the law of 1836 by statutes ever since in force. The disputes covering this first period from A. D. 1836 to A. D. 1854 were confined mainly to four questions: (1) Whether great bays, like those of Chaleur and Fundy, were bays of the British dominions. (2) Whether and this was a broader question, though not perhaps wholly distinct-Great Britain could lawfully run a line from headland to headland, so as to shut in great bends like that of Prince Edward Island and that on the east coast of Cape Breton. (3) Whether the provincial officers could drive out our vesse's from provincial bays and harbors when, in the judgment of the authorities, they did not in fact need shelter or repairs; and (4) The legislation already referred to. These questions were not in all respects analogous to those which arose between A. D. 1866 and A. D. 1870, and which have again arisen in the last two years; but whatever they were, none of them were settled and all were postponed, and for the time being submerged in the reciprocity treaty of 1854. In A. D. 1866, at the expiration, by notice from the United States, of the treaty of 1854, the difficulties touching the fisheries were renewed, and they continued until suspended by the treaty of Washington of 1871. During this period substantially every question arose which has been in dispute within the last two years; yet not one of them was permanently settled by Congress, the Executive of the United States, or by the treaty of Washington. The consular correspondence in the summer of A. D. 1870 shows that our vessels were then forbidden obtaining bait and all other supplies in Canada, and were excluded from Dominion ports except when putting in for the purposes expressly named in the convention of 1818. Numerous seizures were made at that time, followed by forfeitures, one of which was the well-known case of the J. H. Nickerson, a vessel proceeded against at Halifax for purchasing bait, while the United States took no action whatever concerning her and made no reclamation, so that she became a total loss to her owners. This period ended in the treaty of 1871, as did that which closed in A. D. 1854, without the United States securing favorable interpretation of any right in dispute. The references to the treaties of 1854 and 1871 are merely for the necessary purpose of showing their bearing on the present status. Those negotiations were on a much broader scale, and may be said to have involved larger questions than those now under consideration, although everything which endangers in the least the harmony of nations must be regarded as touching the possibilities of great consequences. The nation would not brook that the high motives and great skill and experience of the gentlemen concerned in the formation of those treaties should not be at all times declared. The treaty of 1854 was a beneficent production of broad statesmanship, a blessing to the country, and its good results have come down to this date in the enlargement of commercial relations with Canada, which is among its legitimate issue and has already long survived its own existence. The negotiat ons of 1871, as well as the consequent proceedings at Geneva, were in the hands of practiced statesmen and jurists, led by a Secretary of State eminent alike for his private and public virtues. These citizens had been honored by the people with many trusts: but for their diplomatic accomplishments at Washington and the verdict at Geneva they will also be honored by history. While the purely accidental result of the Halifax commission must. in comparison, be regarded as the spluttering and flickering of a farthing candle, the exact cost of which is known but will soon be forgotten, the moral spectacles of the grander arbitration between the United States and Great Britain and of the treaty which led to it have given out a light which will shine on and on for the illumining of civilization so long as the English tongue shall be spoken. Considering all the great interests which those negotiators had in hand, it was not surprising that it was deemed by them sufficient to give the fisheries a temporary peace, which also they had reason to expect would become permanent. It is in no sense, therefore, in a depreciatory spirit that we refer to these events, but only because dry truth requires that their incidental effect on the issues with which we now have to deal should be clearly stated. The protocol of the conference of the commissioners held May 4, A. D. 1871, is as follows: "The British commissioners stated that they were prepared to discuss the question of the fisheries, either in detail or generally, either to enter into an examination of the respective rights of the two countries under the treaty of 1818 and the general law of nations or to approach at once the settlement of the question on a comprehensive basis." Our commissioners selected the latter. The result was no issues in controversy concerning the fisheries were decided, and all were postponed: and a rule of negotiation was adopted for that topic which has since, justly or unjustly, given great dissatisfaction to the interests involved. It thus appears that this controversy commenced more than a half century since, and during that period nothing has been determined. After questions have continued so long unsettled and have been twice formally postponed it necessarily remains that it is difficult for either party to press its full rights to a complete conclusion in all particulars. Traditions become fixed on one side or the other, systems of legislation accumulate which become inextricably involved with the general mass, and the cotemporary facts and understandings are lost or assume new phases. Claims made by Great Britain, or by Nova Scotia or Canada in her name, have stood so long without definitive reversal that they gained such strength as to be in some particulars quite as difficult of disturbance as though originally based on sound principles and correct rules of construction. This was the status of these questions when the present negotiations commenced; yet former Administrations had not failed to give some indications of the suitable methods of meeting them. In the dispatch of Mr. Seward, then Secretary of State, to Mr. Adams, then our minister at London, of April 10, A. D. 1866, Mr. Seward suggested a mixed commission for the following purposes: (1) To agree upon and define by a series of lines the limits which shall separate the exclusive from the common right of fishing on the coasts and in the seas adjacent of the British North American colonies in conformity with the first article of the convention of 1818: the said lines to be regularly numbered, duly described, and also clearly marked on charts prepared in duplicate for the purpose. (2) To agree upon and establish such regulations as may be necessary and proper to secure to the fishermen of the United States the privilege of entering bays and harbors for the purpose of shelter and of repairing damages therein, of purchasing wood and of obtaining water, and to agree upon and establish such restrictions as may be necessary to prevent the abuse of the privilege reserved by said convention to the fishermen of the United States. "(3) To agree upon and recommend the penalties to be adjudged, and such pro ceedings and jurisdiction as may be necessary to secure a speedy trial and judgment with as little expense as possible for the violators of rights and the transgressors of the limits and restrictions which may be hereby adopted." The "memorandum" prepared by the Department of State for the information of the commissioners who, on the part of the United States, assisted in negotiating the treaty of Washington of 1871 contained suggestions for adjustment in the following language: (1) By agreeing upon the terms upon which the whole of the reserved fishing grounds may be thrown open to American fishermen, which might be accompanied with a repeal of the obnoxious laws and the abrogation of the disputed reservation as to ports, harbors, etc.; or, failing that, (2) By agreeing upon the construction of the disputed renunciation, upon the principles upon which a line should be run by a joint commission to exhibit the territory from which the American fishermen are to be excluded, and by repealing the obnoxious laws and agreeing upon the measures to be taken for enforc ng the colonial rights, the penalties to be inflicted for a forfeiture of the same, and a mixed tribunal to enforce the same. It may also be well to consider whether it should be further agreed that the fish taken in the waters open to both nations shall be admitted free of duty into the United States and the British North American colonies." It will be observed that the suggestions of Mr. Seward were substantially repeated in the instructions of A. D. 1871, and were also embraced almost in terms in the proposals accompanying the dispatch of Mr. Bayard to Mr. Phelps of November 15, 1886; and the treaty just negotiated, it is believed, accomplishes all which was contemplated by them. |