The fishery question; its origin, history and present situation, with a map of the Anglo-American fishing grounds and a short bibliography

QUESTIOXS OF THE DAY.—XO. XLI.

THE

FISHERY QUESTION

ITS ORIGIN, HISTORY AND PRESENT
SITUATION

WITH A MAP OF THE ANGLO-AMERICAN FISHING
GROUNDS AND A SHORT BIBLIOGRAPHY

BY

CHARLES ISHAM

NEW YORK & LONDON

G. P. PUTNAM'S SONS
1887

^

ll4o

COPYRIGHT BY

CHARLES ISHAM

1887

Press of

G. P. Putnam's Sons

New York

HP

PREFACE.

The greater part of this work was done
for the United States History Seminar, Grad-
uate Department, of Harvard University.
The numbers in the text refer to the bibli-
ography. C. I.

May 14, 1887.

653475

INSHOKC riSHINC C/^OUNDi - OK

MAC/<£n£L,C0O ■

THE FISHERY QUESTION.

IT is probable that fishermen from Brit-
tany visited the banks of Newfoundland
before Columbus discovered the Antilles."
Personal interests and the commercial enter-
prise of Dieppe and St. Malo were represented
by these voyages, rather than the Government
of France ; for neither the fishermen nor their
employers had much communication with the
French Court. They took upon themselves
the defence of their trade, and even the pun-
ishment of their enemies.^ By formal dis-
covery England might have asserted a mo-
nopoly in the Newfoundland Fishery, through
the voyage of John Cabot in 1497. Such
pretensions, however, would have been most
dangerous in the presence of the far more
powerful navies of Spain and Portugal. A
protest against possible interference was
lodged by the Spanish ambassador at the
English Court, but Spain soon became ab-
sorbed In her rich colonies around the Gulf of

2 The Fishery Qitesiio7i.

Mexico and in South America.^ Her fisher-
men grackially left the banks during the seven-
teenth century/ Spanish claims were revived
as late as i ^'^'^, but only in the faint hope of
bartering them with England for the surren-
der of Gibraltar.^

Caspar Cortereal sailed from Portugal In
1 501. Upon his return fishing companies
were formed, and three years later the Indus-
try was strong enough to pay a tax of ten per
cent, on profits Into the custom-houses of
Emanuel 11.^

The conquest of Portugal by Spain did not
immediately end the participation of the for-
mer in the Fishery. Portuguese vessels were
still numerous in 1583. Then the numbers
rapidly declined.'' In 15 17 the French flag is
supposed to have had the largest representa-
tion in Newfoundland waters. Verrazano, by
virtue of whose explorations France claimed
a title in the New World, sailed under a
French commission In 1523, perhaps to cruise
against the Spaniards. Just what he accom-
plished, the following year. Is very difficult to
determine. He may have touched at New-
foundland before his return to port.^ France,
now consolidated under Fran9ois I., was at last

The Fishery Question, 3

in a position to profit by the skill of the
Britons In navigation Chabot, admiral of
France, Influenced no doubt by the spectacle
of the Spanish colonies, dispatched Cartler In
1534 to obtain more definite Information.
Cartler sailed to Newfoundland, and in the
execution of his Instructions explored the
Gulf of Saint Lawrence. The King's ambi-
tion was to be a power in Europe. He was
rather disposed to ridicule western coloniza-
tion, and almost in jest, he granted the un-
known country to a favorite. Again Cartler
sailed in 1540, as commander-general under
Robeval, to whom Frangols had given a feu-
dal seigniory, comprehensive enough to In-
clude all of North America. Both passed the
winter in Canada and both returned,^ Robe-
val to engage In the European wars. His
attempt to found a colony was not successful,
and he perished after again setting out for
America in 1549. Under the Influence of
Sully, Henry IV. placed the Fishery under
government protection and gave to De la
Roche the lieutenancy In New France.

Interested parties may have caused these
letters patent to be revoked. The patentee,
with two hundred criminals, the material for

4 The Fishery Qicestion.

his colony, did not sail until 1598.'° Leaving-
forty of these miserable men on the uninhab-
itable Sable Island, the scene of the first at-
tempt at French colonization, eighty years
before, he continued his course to the conti-
nent." De la Roche also returned without
his company, and soon afterward died. A
rescuing party was humanely undertaken by
the Government, and a few of the colonists
were found and brought alive to France.

A commission given by Henry to Chauvin
indicates the part played by the French mer-
chants in effecting a successful settlement in
Canada. It contained an exclusive privilege
for trading in furs.'^ The peltry obtained
from Tadousac in 1600 and 1601 led to the
formation of a company composed of Dieppe
and Malonese merchants. Whatever trading
rights then existed, seem to have been cov-
ered by Henry's patent to De Monts, who in
1603 assumed the viceroyalty in '' La Cadia"
with a monopoly of the fur trade from Cap de
Raze, Newfoundland, to fifty degrees north
latitude. The next year De Monts set out
and vigorously raided the interloping fur
traders. To Potrincourt, one of his compan-
ions, he gave the site of the modern Annap-

The Fishery Qicestion. 5

olis.'3 When De Monts lost his patent in
1606, through the hostility of Malonese rivals,
Potrincourt succeeded in obtaining- a con-
firmation of his grant and founded Port
Royal.

Englishmen already in Virginia claimed
under their charter to the forty-fifth degree
north latitude,'^ but the French were unwilling
to relinquish their occupations within the de-
batable territory. The Virginians, having
decided to enforce their rights, as they under-
stood them, fitted out, in time of peace, an
expedition under Argall and destroyed Port
Royal in 161 3. '^

That the French now possessed a centre of
influence and of resistance, was due to the
sagacity of Champlain ; convinced of the com-
mercial and strategical superiority of the
Saint Lawrence over the coast line, he had
founded Quebec in 1608, when, as pilot, he
accompanied De Monts to Tadousac, the
latter having obtained the renewal of his
patent for one year.

English commerce, heretofore confined to
the Channel and the German Ocean, utilized
promptly the discovery of Newfoundland,'^
especially as the Dutch were then deriving

6 The Fishery Qitestion.

great profit from the sale of their herring to
neighbors whose calendar contained so many
fast days. '7

Elliot and Ashenhurst, merchants of Bris-
tol, received letters patent for colonizing
Newfoundland from Henry VII. in 1502.
There seems to be no further information in
regard to their venture. The Fishery was
free, by act of Edward VI., and thither as
many as pleased could resort. Henry VIII.
aided Thorne, of Bristol, in an attempt to dis-
cover the North-west passage. One of the
vessels sailing in 1527 coasted Newfound-
land, Cape Breton and Nova Scotia. Hoare
attempted a colony on the island in 1536.
His company, after many distresses, seized a
French ship, in Newfoundland waters, and
sailed for home. The English Government
made restitution for their lawlessness. Every
spring English fishermen sailed for the banks,
returning late in the autumn with the catch
dried and cured on the island. The profits
were already so manifest, that a monopoly
was eagerly desired. Merchants had begun
to quarrel among themselves for the advan-
tage of convenient shore stations. Soon
after the accession of Elizabeth to the

The Fishery Question, 7

throne, a restless, but by no means purpose-
less, energy inspired her seafaring subjects.'^
French adventurers had demonstrated the in-
ability of the Spanish navy to convey the
treasure ealleons from the West Indies. Mer-
chants, explorers and pirates put to sea and
English slave dealers forced the Spaniards to
relax their exclusive trade regulations.'^

Formal intimation of a design to acquire
North America appeared in Gilbert s petition
to Elizabeth makingr mention of the lands,
" fatally reserved for England." ''°

In 1578 Gilbert had secured letters patent
to discover, settle and regulate these remote
countries. Previous to his departure the
Government found it expedient to send Sir
Thomas Hampshire to the Newfoundland
fishing grounds, for the purpose of settling
disputes over the pre-emption of shore sta-
tions. Gilbert followed in 1583, but the
Spanish war ships forced him to return.^'
Trying again, the following year he made the
harbor of St. Johns where were congregated
fishinor vessels of several nations. The hos-
tility aroused by his appearance, at a time
w^hen any strange sail might well be a pirate,

8 The Fishery Qitestion.

abated when he announced his purpose and
displayed his authority.

He was conducted on shore by the EngHsh
captains, read his commission in the presence
of a polyglot assembly, and took ceremonial
possession of the island and all surrounding
lands within a circumference of two hundred
leao^ues.

No attempt was made to prevent a free
fishery except that before his departure a trib-
ute was levied on foreigners in acknowledg-
ment of the Queen's rights.-^

A report that Frobisher had discovered
gold mines in America stimulated the exer-
tions of the English. There were many dan-
gers to face besides those of the sea. Drake
was cruising against the Spaniards. There
were murderous quarrels among the fisher-
men and the line was beeinnine to be drawn
between the French and the English. The
detention of Clark and the pillage of his ship
by Frenchmen immediately led to the arming
of English crews. Soon afterwards, Lee and
Heywick made a prize of one of the hostile
French vessels and brought it back with them
in 1597. Guy's treatise on Newfoundland,
the result of a two years' residence, induced

The FisJicry Qiccstion. 9

the formation of the Northampton Company
in 1610. Lord Bacon, one of the associates,
was willing to leave gold hunting to others,
but appreciated the Fisheries 'Mike which, of
all minerals, there is none so rich." James L,
by the terms of this patent, conveyed all New-
foundland from the forty-sixth to the fifty-
second degree north latitude, * with all seas
and islands within ten leagues of the coast,
but reserved to persons of all nations the
right of fishing, except between capes St.
Mary and Bona Vista, where the company
attempted to enforce a monopoly.

Complaints were loud against the patentees.
Whitburne, engaged since 1591 in the fishery,
was sent to Newfoundland to hear the evi-
dence of one hundred and seventy English
ship-masters, who claimed that the company
taxed their cargoes, exacted fees and pre-
vented them from obtaining bait. On his
arrival he held a Court of Admiralty, but
without restoring tranquillity, for in 161 8 the
merchants of Devon sent a petition to the
Privy Council, in which old grievances were
recited and the insecurity of the seas, by
reason of piracies, was rehearsed.^^ The
Northampton Company set up a denial of the

lo The Fishery Question.

charges. They admitted the existence of
piracy and offered to assist the merchants in
suppressing it, but these overtures were re-
jected. The company then asked the govern-
ment to make Newfoundland a naval station.
The request was accompanied by a list of
persons regarded as pirates, an estimate of
damages amounting to ^48,000 sterling, and
a statement that one thousand and eighty
fishermen had been kidnapped.

In spite of this state of society, the Fishery
was profitable and on that account attractive.
At the beginning of the seventeenth century
the English opinion, often expressed, was
decidedly that the best fishing ground existed
off the New England coasts.'^

Bartholomew Gosnold, sailing in a small
vessel with a few fishermen, reached Massa-
chusetts Bay in 1602 and proceeded thence to
a great headland, which he named Cape Cod
on account of '' the fish that pestered the
ships." Pring, Waymouth Joselyn and the
celebrated Captain John Smith, by reiterating
this description arrested the attention of the
public.

The capital necessary for ventures was
supplied, in great measure, by merchants of

The Fishery Qicestion. \\

Dorchester and London. Fishing could only
be carried on in the season. "Spare hands,"
left on shore and furnished with a winter's
outfit, were the first New England colonists.
Such was the beginning of the settlement of
Cape Ann in 1623. Quiet prosecution of the
Fishery was, moreover, favored by the peace
recently concluded between James I. and the
King of Spain. By charter, dated 1606, the
Atlantic coast was parcelled out for the bene-
fit of the London and the Plymouth Trading
companies, the latter to utilize the terri-
tory between Delaware Bay and Port Royal.
This instrument was subsequently modified."^
It was through the exertions of Gorges that
the Plymouth Company obtained a renewal
of the original concessions. When James
asked the spokesmen of the Pilgrims what
profit might arise from their purpose to settle
on these coasts, they replied in a single word,
"fishing."

Fishing supplies were carefully furnished
the emigrants who settled Salem. Fish were
presently exported from Massachusetts to
Spain, England, the West Indies and even
to Holland. -A trade commenced with the
southern colonies. Winthrop, in 1641, esti-

12 TJic Fishery Question.

mates the number of dry fish sent to market
at three hundred thousand.^^ Saco, Rich-
mond's Island, the vicinity of the Kennebec
and the Penobscot were soon famous as ad-
vantageous fishing grounds. Without knowl-
edge of the geography of the country the
French and English oovernments eranted
patents freely in the wilds of North America.
Everywhere the boundaries were indefinite,
the titles in question and monopolies of the
Fisheries assumed, if not expressly mentioned.
Companies and merchants urged their respec-
tive governments to reprisals. Charles I. at
the beginning of his reign recognized the im-
portance of the Newfoundland Fishery, beside
making some provision for the better govern-
ment of the island. This action, however,
was more than neutralized, in the opinion of
his subjects, by the remission to the French
of the former tribute on their catch. There
were grave fears for the fishery fleet in 1625.
Turkish pirates were blockading the western
ports of England. From New^foundland also
came letters of Lord Baltimore, describing the
depredations of the French, his own retalia-
tion, and a request for men-of-war to protect
the industry.

The Fishery Question. 13

The vitality of the Massachusetts towns
added to these complications, while they has-
tened the ultimate triumph of the mother
country. Peters, a clergyman of Salem,
urged the settlers to develop and extend their
fisheries. Winthrop wrote of them, leased
those within the patent of his company, and
with other prominent colonists obtained in-
spectors of the annual catch.

The action of the Stuarts, when by the
treaty of St. Germain-en-Lay, they ignored the
wishes of the colonists and abandoned their
patentee, Alexander, together with their
claims to Canada, Acadia and Cape Breton,
exasperated the opposition party in Old and
New England.^7 "fh^ Newfoundland trade
was furthur irritated by the remission to the
French of the tribute, their establishments at
Placentia, and the use they were permitted
to make of the south coast, where the cod
arrived earlier than at St. Johns. Boston lis-
tened with approbation to the denunciations
of the Court by Bellemont, who traced the
sinister influence of the French King on
Charles and his Queen. The treaty was con-
demned by both nations.^^ Twenty-two years
later Cromwell, in time of peace, seized Aca-

14 The Fishery Question.

dia, on the ground that the cession was un-
constitutional. He also, perhaps through the
influence of his son-in-law, permitted Kirke,
a royalist patentee, to return to the island.^^
But Kirke was not long continued there, as
his endeavors at colonization were opposed
to the interests of the merchants who con-
ducted the Fishery from England. It is note-
worthy that in Cromwell's time appeared the
Navigation laws, designed to make England
a great naval power, and to that end forbid-
ding exports from the colonies except in
English vessels. These restrictions were en-
dured while trade remained inconsiderable,
but were destined, with the expansion of colo-
nial commerce, to bring about revolution and
separation. 3° Through the vicissitudes and
the romance of De la Tour's career, Acadia
was regarded as English ground, until the
treaty of Breda handed the territory a second
time to France. The New England colonies
still continued their attacks, but the French
at Port Royal were strong enough to both
check and menace the English settlers.

In 1686 the treaty of London left the
claims of England and France still doubtful.
Both parties took advantage of this omission

The Fishcjy Qitcstion. 15

to continue their feuds. At the commence-
ment of the hostihties that were to end in
the peace of Ryswick, Louis XIV. proposed
that America should be exempted from the
operations of the war. WilHam III. refused.
Had he accepted, his authority could hardly
have restrained the chronic expeditions
against the French.

The northern colonies were incapable of
peace. During the war Phips failed in an
attack on Quebec, but reduced Acadia and
established an English government. His
men were rewarded with the first issue of
colonial paper money. To surrender their
conquests at the peace in 1697 was a bitter
disappointment for New Englanders, espe-
cially as the war in America was avowedly
undertaken to recover the Fishery, which had
unfortunately excited the jealousy of the
English trade, and, in consequence of viola-
tions of the Navigation laws, the mistrust of
the government as well. The French with-
out delay claimed a monopoly from Maine to
Labrador, and sent a frigate to seize all colo-
nial fishing vessels east of the Kennebec.
In the reign of Queen Anne, the French
seemed bent upon retrieving in America their

1 6 The Fishery Question, .

disasters upon the continent of Europe.
They had five hundred sail in the Fishery.
They were well armed ; had distanced their
competitors ; were the first in the European
markets, and sold their fish at the larger
profit. They were actually in peaceable pos-
session of every important station on New-
foundland before the end of the war.

The Massachusetts fishermen, on the other
hand, swept the coast of Nova Scotia, twice
attempted the seizure of Port Royal, and fur-
nished two complete regiments and the trans-
portation to Nicholson, when he captured
that town in 1710.

The terms of the treaty of Utrecht at the
close of this war, in 1713, were, as regards
America, in the nature of a commercial ar-
rangement.3' By the thirteenth article, New-
foundland, with the French stronghold of
Placentia, was given to England. The
French were to be allowed to dry and cure on
the coast from Bona Vista, around by the
north to Cape Riche, a range inferior to their
previous stations on the south. They were
not to fortify or to be engaged on the coast,
except during the fishing season. England
was to have Nova Scotia, Acadia, ''accord-

The Fishery Qicestion. 1 7

Ing to its ancient limits," and Port Royal,
now rechristened Annapolis. Moreover, the
French Fishery was not to be carried on
within three leagues of the English coasts,
and in revenge for their stubborn defence of
Acadia, the French were to keep thirty
leagues out to sea, south-west of Cape Sable.

Beside this acknowledgment of fishing
claims, the Hudson Bay Company acquired
an immense territory and Spain contributed
the Assiento contract, whereby to England
was assigned the exclusive right to furnish
the Spanish West Indies with slaves.

The treaty was very unpopular. ^^ France,
it was said, ought to have lost the Newfound-
land and the entire coast Fishery. French
chicane had triumphed in effecting the ex-
change of Acadia for Cape Breton and the
other islands in the Gulf of Saint Lawrence.
If the French stations were the best, their
retention by commercial rivals must interfere
with colonial profits ; if worse, the quarrels
would not cease. Queen Anne died of apo-
plexy after a stormy meeting of her cabinet,
at which the articles of the treaty were dis-
cussed. Oxford, whose influence was sup-
posed to have been for concession, was im-

1 8 The Fishery Quest ion.

peached. Nova Scotia, now permanently in
the possession of the British crown, was al-
most uninhabited. The agents of Massachu-
setts opposed its colonization, as New Eng-
land fishing vessels had already begun try-
ing for fares on its coasts. The military
government was obliged to fill up its council
from the garrison. The country remained
unfrequented, except as a fishing ground, until
1748, when Halifax was founded.33 The Eng-
lish colonists did not have lonor to wait for
the confirmation of their misgivings in regard
to Cape Breton. Considerable money had
been spent in making the town of Louisburg,
on that island, imposing, if not impregnable.^-*
Known as the '' Dunkirk of America," it was
the rendezvous of the French navy and mer-
chant marine and the centre of a lucrative
fishery. Disputes as to whether it belonged
to the Enorlish,. as within '* the ancient limits
of Acadia," had arisen in the commission
appointed under the treaty. It was asserted
that since the peace the French had carried
on "an unbounded fishery." The inconven-
ience of such prosperity and naval strength
between Newfoundland and Nova Scotia
was strongly urged, as well as the command

The Fishery Question. 19

of Canada, that possession of the island
would give.35 Th^ governor of Massachu-
setts finally obtained the consent of his coun-
cil to an expedition against Louisburg. Pep-
perell, the son of a fisherman of Mount
Desert, was given the command, while
Massachusetts furnished three-fourths of the
troops to co-operate with the English admiral,
Warren. The colonial army landed on the
island May 30, 1745. Louisburg fell June
17, a long interval, as it seemed to the
besiegers, who terrified the French by their
reckless courage. ^^ The English fleet co-op-
erated loyally with the colonists, but had con-
tributed little to this exploit, beyond the
capture of a French frigate on the way to re-
lieve the garrison. 37 There was extravagant
joy in England and America. Louisburg, it
was claimed, counterbalanced the ill success
of England on the continent of Europe.
Chesterfield wrote : "I would hang any man
who proposed to exchange Louisburg for
Portsmouth." Yet Hanoverian interests as-
serted themselves at the expense of the col-
onies, and Louisburg was restored to France
by the treaty of Aix-la-Chapelle in 1748.^^
The town was rebuilt. Disputes over the

20 The Fishery Question.

boundaries still continued, the English com-
missioners claiming that the Penobscot was
the western frontier of Nova Scotia. In
Newfoundland the question was as to the
location of Cape Riche. As France was
known at that time to be strengthening her
marine, Holderness, one of Her Majesty's
secretaries of state, recommended to the colo-
nial governors a confederation for mutual
defence. French diplomacy seemed capable
of retrievinor all her disasters. The Enorlish
attempted to detach Spain from France,
promising to acknowledge the Spanish claim
to participation in the Fisheries. ^^ Spain, forti-
fied by a dispensation from the Pope, replied
by prohibiting the importation of foreign fish.
The English fleet, using Halifax as a naval
station, occupied Placentia, and aided by the
''Royal Americans" recaptured St. Johns.
Trade was secondary to war. The merchants
of the colonies who engaged in it at all
shipped negroes and Indians to complete the
crews of their vessels. By a second siege,
and the employment of a force, immense in
comparison with the former operations, Louis-
burg surrendered to Lord Amherst in 1758.
Nearly one-third of the effective men of

The FisJicry Question. 21

Massachusetts were in the service. Wolfe
sailed for Quebec the following year and
added Canada to the roll of English posses-
sions/° France, previous to the war, had suc-
ceeded in drawing a line of forts around the
English on the seaboard. Her system had
been thoroughly feudal. The more active
among her American subjects had, in conse-
quence, become " Coureurs de bois," or had
drifted among the English. Canada might
long have remained a military government,
supported systematically from France. The
Court, however, was thoroughly European in
its aims, and the province, assisted at caprice,
was abandoned in extremity. Out of this
wreck the French succeeded in saving the use
of the Newfoundland coast from Bona Vista
around by the north to Cape Riche, beside
the little islands of St. Pierre and Miquelon,
the latter under restrictions that rendered it
impossible to use them for anything more
than a shelter. The three-league limit was
enforced, expanding to fifteen leagues off the
coasts of Nova Scotia and Cape Breton.'*^
Mr. Pitt, supported by the London merchants
and the colonists, had favored the total ex-
clusion of the French from the Fisheries.

2 2 The Fishery Question,

Bedford, believing that such a proposition
would stop the negotiations or lead to a re-
newal of hostilities, departed from his instruc-
tions by consenting to a modification of these
terms/^ Careful observers on both sides an-
ticipated the result of the treaty of Paris con-
cluded in 1763. Montcalm was consoled for
the loss of Canada by the thought that the
English colonies would revolt in ten years.
De Vergennes considered the cession a happy
arrangement, under the circumstances/^ At
one time there was a sentiment in favor of
exchanging Canada for Guadaloupe, but
other views prevailed/^ As it stood, the
treaty was unsatisfactory. The privileges
conceded the French were declared to be
equal to all Canada. Bedford was accused of
bribery. The French at St. Pierre were
watched and misrepresented. The malcon-
tents could only console themselves with the
reflection that the French, if deprived of the
Fisheries, might retaliate by the exclusion of
English fish from the markets of France and
her colonies. Freed from the attacks of the
traditional enemy, the Fishery was taken up
with energy and encouraged by the exemp-
tion from taxes of boats and tackle. As the

The Fishery Quest ion, 23

Lasis of a flourishing trade, the merchants
Avho furnished the capital were wilHng to take
many chances and could sustain considerable
losses. Statistics of the Massachusetts whale
and cod fisheries in 1 764 estimate the value
of the business at almost ^155,000 ster-
ling/5 England did not take one-third of the
marketable fish. They were sent to France,
Spain, Holland. Madeira, the southern col-
onies and later to Brazil and Paramaribo.^*^

The West India Islands were consumers of
the poorer qualities. In exchange for their
fish, the colonies obtained rum, bullion, bills
of exchange or commodities, accepted in pay-
ment of English manufactures. The impor-
tance of the trade was so thoroughly appre-
ciated that in the State House at Boston
hung a painted codfish, a constant reminder
to the legislators of the *' staple of the Mas-
sachusetts."

Careless destruction of river fish had in a
measure driven the cod from the immediate
vicinity of the New England fishing towns,
but the fishermen now had the ranee of the
north-east coast to Labrador. The wealthier
firms established stations at Canso or in the
Bay of Chaleurs. As soon as a more strin-

24 The Fishery Question,

gent application of the Navigation laws
checked the export trade, the irritation of
the colonial merchants appeared. Parliament
decided to enforce these regulations, and to
that end armed the captains of the English
men-of-war and revenue cutters with the
powers of customs officers/^ Deprived of
their markets and threatened with the exter-
mination of smuggling, the merchants became
more and more rebellious. The passage by
Parliament of an act making molasses and
sugar, the product of the West Indies, dutia-
ble in colonial ports, gave to the French and
English a virtual monopoly of the Fisheries.
Vessels formerly engaged in the carrying
trade were freighted with the fishing plant
and sold abroad.

Only evasions of the law and the growth of
the Inter-colonial market sustained the Indus-
try. On the eve of the Revolution the fishing
towns were fairly prosperous. Stephen Hlg-
ginson testified before a committee of the
House of Commons, pending the considera-
tion of a bill framed to punish rebellious New
England by depriving her of participation in
the cod fishery, that should the measure pass,
over six thousand two hundred Inhabitants of

TJie Fishery Qiicstion 25

Massachusetts would loose their means of live-
lihood, and ten thousand persons must seek
employment elsewhere/^ Before the begin-
ning of the Revolutionary War, New England
had lost the ancient Fisheries — as far as Parlia-
mentary action could go. '' No taxation with-
out representation " was not merely a conven-
ient phrase ; yet duties not for revenue, but
tending to circumscribe commerce, were al-
most as obnoxious as direct taxes/^ One of
the arguments in favor of a successful revolt
rested on the strong probability of effective
assistance from abroad.^^ Thirteen years had
fulfilled the anticipations of the French states-
men. Not that they mistrusted the colonies
the less, but that they disliked England more.
The United States Government, before the
declaration, had dispatched an agent to
France. French aid began, covertly, before
the war and continued after the result was no
longer in doubt. Among the inducements
offered by the American commissioners to ob-
tain recognition was a joint conquest of
Canada and Newfoundland, and the division
of the Fishery between the French and the
United States governments. This was never
seriously contemplated by France. Before

26 The Fishery Question.

the end of the struggle, French diplomacy
preferred that England should retain Canada,
and that the limits of the new republic should
be curtailed. 5'

Upon the arrival of Mr. Jay In Paris, early
in September, 1782, the negotiations that were
to result in a definite treaty of peace were
already in progress. ^^ Peace had long been
desired by both parties. It had several times
been attempted, but could make no headway
against the repugnance of George III. to any
acknowledgment of American independence,
and the artificial identity, in consequence of
the general war, of American, French and
even Spanish interests. When in March, i 782,
the ministry of North fell, and what was more
significant, when the king had reluctantly con-
sented to acquiesce in American independence
as a condition precedent to the formation
of the Rockingham ministry, Franklin, at
Passy, anticipated the new home secretary,
Lord Shelburne, in a letter Inviting an inter-
change of views. Less than a month after-
wards Oswald was In Paris, not in the charac-
ter of a formal negotiator, but as the confidant
and representative of Shelburne who was anx-
ious to prepare the way for a regularly ac-

The Fishery Qiccstion. 27

credited commission. It was to Shelburne's
secretaryship that negotiations properly be-
longed, and it was not intended that Oswald
should add to the difficulties of his situation
by overtures addressed to any but the repre-
sentatives of the colonies. Franklin was
identified with American diplomacy, and as
minister to France he was under general
instructions relative to a treaty. Among the
necessary conditions which he forthwith indi-
cated to Oswald, there were three of major
importance : Independence, The Boundaries,
and the ancient fishing Franchises. Oswald
returned to report progress. His government
was willing to admit independence. The re-
maining points did not exclude the possibil-
ity of an adjustment. Thus far the obstacles
in the way of a convention had been sur-
mounted, but another annoying delay now
arose in consequence of the relations existing
between Shelburne and Fox. Under the im-
pression that Oswald's mission was a trespass
upon his province, as Foreign Secretary, of
treating with the European powers, Fox had
sent Grenville to Versailles, — a young man
whose partisanship and personal characteris-
tics displeased alike Franklin, Oswald and De

28 The Fishery Qicestion.

Vereennes. Grenvllle's communications to
his principal soon precipitated a misunder-
standine in the EnorHsh cabinet, that finally,
on the formation of the Shelburne ministry,
resulted in the secession of Fox to the opposi-
tion.

On the 27th of July Oswald had been
authorized to modify the original English
position, and on the 7th of August he had
received his commission to treat separately
with the representatives of the colonies. At
this stage of the negotiation, Jay arrived from
Spain. With the exception of Franklin, he
was the first of the Americans on the ground,
under the commission for a peace, issued by
Congress on the 8th of June. Jay's opinion
of French and Spanish policy had undergone
a radical change. Formerly the advocate of
a triple alliance between America, France and
Spain, his experience during an official resi-
dence at Madrid had convinced him that
neither France nor Spain desired to see the
United States a dominating force at home
or abroad, however ready they might be to
use American pretensions for their own
advantage, in the terms of a general peace.
With the arrival of Jay began the diminution

The Fishery Question. 29

of cordiality between the American commis-
sion and the French Court, that culminated
in the signing of a separate treaty by the
Americans without an official communication
to De Vergennes of the progress of the
negotiations, a proceeding forbidden In the
instructions of Congress. Every day marked
the divergence of American as distinguished
from French and Spanish interests. The
latter dreaded the influence of a great repub-
lic upon her western colonies, and the former,
by surrounding the young government with
powerful enemies, hoped to render it amen-
able to French influence. This design was
suspected, and presently confirmed by the
news of a secret mission to Shelburne, as-
sumed by the French under secretary of
state, through whom the French Government
expressed its determination not to recognize
the American claim to the Ohio territory,
besides hinting at the entire exclusion of the
United States from the Newfoundland and
the Gulf Fisheries. De Vergennes himself, in
correspondence with his minister at Philadel-
phia, characterized the American demands as
absurd. Further proof of the intentions of
France, in the form of an Intercepted letter,

30 The Fishery Qitestion.

was placed by the English secret service, at
an opportune moment, in the hands of the
American commission. All parties now
desired peace. France could expect nothing
from a continuation of hostilities. Spain
despaired of obtaining Gibraltar, and Eng-
land wished to conclude with the United
States because she could then force the
French and Spanish courts to an ultimatum.
The phraseology of Oswald's instructions
having been altered, in deference to the ob-
jections of the American commission, the
differences were mainly in regard to the Fish-
eries, the English creditors and the loyalists.
On October 5th, Oswald had accepted an
article permitting the United States to dry
their catch on the shores of Newfoundland.
His government, noticing this too ''pacifical"
humor, thereupon added Strachey, an under
secretary in the Home Office, to the English
commission. This gentleman achieved a
diplomatic victory at the outset, owing to an
unguarded, but sincere, remark of John Adams,
who had just reinforced the other side.
Adams had not been presented to De Ver-
gennes when he met the English commis-
sioners in Jays apartments. Strachey de-

The Fishery Question. 31

manded, in the course of conversation, that
the Habihty of all American debtors to their
Enorlish creditors should be acknowledeed
by the treaty. Adams replied, off hand, that
he had no objections to such an article. On
this point Franklin had stood out. The
losses inflicted by loyalists more than bal-
anced the account, in his opinion. He subse-
quently yielded, contenting himself with a
letter to Townsend in which he rehearsed the
practical difficulties in the way of collection.
Adams' convictions, as well as his special
knowledge, stiffened the claim to the Fisher-
ies. After a long discussion, the liberty of
the Americans to cure and dry was trans-
ferred from the coast of Newfoundland to
the uninhabited coasts of Nova Scotia, the
Magdalen Islands and Labrador, as long as
they remained unsettled. In the event of
settlement, the rights of inhabitants, proprie-
tors or possessors of the ground, were to be
recognized. Franklin remodelled the article
to include the right to take fish not only on
the Grand Bank and on all the other banks of
Newfoundland, but also in the Gulf of St.
Lawrence and all other places in the sea
** where the inhabitants of both countries

32 The Fishery Question.

used at any time heretofore to fish." Up to
this point the British ministry had conceded.
They allowed territorial claims. They had
granted the Maine frontier and they had
virtually granted the Fisheries, but with refer-
ence to the indemnification of the loyalists,
the King, the Opposition and the Cabinet,
leaving out Shelburne, Pitt and Townsend,
united in the declaration that they would
rather continue the war than submit to a
Compromise. The English commissioners
wished the Americans to understand that this
was an ultimatum. The objection on the
part of the Americans that they were not em-
powered to treat on this subject, was met by
the insinuation that their full powers could
be proved in their instructions from Congress.
Shelburne added that the treaty in Its present
form would certainly be rejected by Parlia-
ment. Franklin's opposition to indemnifica-
tion had been constant and active, but he
recognized the truth of Shelburne's statement.
There was another conference between the
English commissioners and their government.
A new instrument was drawn and Fitz-
Herbert, of the Foreign Ofihce, became a mem-
ber of the English commission, to bring

The Fishe7y Question. 33

French pressure to bear on the Americans.
De Vereennes was known to be in favor of
indemnification and of the EngHsh claims in
general. On the very day that the English
comrr^ssioners received their instructions, De
Vereennes wrote that France would no more
prolong the war to support the American
claims to the Fisheries, than would America
to gain Gibraltar for Spain. Two days later
George III. urged Shelburne to propose to
Louis XVI. the denial of the Fisheries to the
Americans. The third article of the treaty
seemed to the King vague, and likely to
prove a source of future complications. Be-
fore this recommendation could receive atten-
tion the commission met. Strachey ex-
plained the concession in the English instruc-
tions relative to the Fisheries, and concluded
that indemnification was to decide the fate of
the negotiations. Pressed by Jay, he ad-
mitted that this was not an ultimatum. The
discussion continued for four days. On
November 29, the commissioners again
came together. All the Americans, including
Laurens, were present. Strachey scored
another triumph here. It was promised that
no further confiscations of loyalist property
3

34 The Fishery Qiccstion.

should take place, and that Congress should
^recommend to the several States an amnesty
and general restitution. The last words on
the Fisheries were between Adams and
Oswald. It was resolved to allow the Ameri-
cans riehts co-extensive with those of Ene-
lish subjects, except the local restrictions
on drying the catch. Strachey and Fitz-
Herbert wished to refer the articles, in their
present form, to the English Government.
This would have necessitated submitting them
to Parliament. Franklin, anticipating the
danger, replied that then the question of the
Enorlish creditors ouQrht to come ao^ain into
discussion. This was Strachey's advantage.
Rather than imperil it, he withdrew his objec-
tions to an immediate signing. Fitz-Herbert,
knowing that the conclusion of peace with
the United States would force terms upon
France and Spain, also gave his consent.
Oswald's power permitted him to sign with
the concurrence of his colleagues. The pro-
visional treaty was accordingly signed on
the 30th of November, 1782. Its definitive
character had been fixed in the preamble."
Adams alone of the commissioners escaped
the imputation of lukewarmness toward the

The Fishe7'y Question. 35

American claims to the Fisheries. The his-
tory of the negotiations indicates that the
reflection was unjust to Franklin and Jay.

Sentiment in the United States was not
unanimous. Samuel Adams hoped not only
for the Fisheries, but for Canada, Nova Scotia
and Florida. In March, 1779, Congress
voted that the common right of the United
States in the fishinor orrounds should in no
case be given up. The month had not passed
before the resolution was reconsidered in
deference to the French interests. In May,
independence was made the sole condition of
peace with Great Britain. But the discussion
had to be reopened, and through the exer-
tions of the New England deputies it was
resolved to insist upon the Fisheries. New
England declared that her prosperity depend-
ed upon the ancient franchises. Sectional
feeling developed. A resolution offered
in June, that the Newfoundland Fisheries
must be guaranteed by France, provoked an
acrimonious debate. New Enorland won —
but four States threatened to secede. In
July the question of the Fishery was reserved
for a future treaty of commerce with Great
Britain, the proposition to insert it in a

36 The Fishery Question,

treaty of peace having been indefinitely
postponed. This conclusion did not vary.
On the appointment of a commission to nego-
tiate a peace, the common right of fishing
was not made an ultimatum. It was simply
declared to be of the utmost importance.

The English objected to the word ''right"
in connection with drying and curing the
catch on English territory, and " liberty " was
substituted in its place.^^ John Adams' state-
ment of the American case remained, theoreti-
cally, the position of the United States Gov-
ernment in the convention of 18 18. At this
time there were some Englishmen, notably
Admiral St. Vincent, who would willingly
have abandoned Canada to avoid the antici-
pated trouble of holding it. During the war
Newfoundland had remained loyal. At first,
riotous demonstrations against the custom-
houses had indicated some sympathy with
the Americans. Latterly the island suffered
from the non-importation agreement recom-
mended by the American Congress, and from
American privateers. After the war the
cruelties formerly enforced against the set-
tlers abated. A better system of government
was also inauo^urated. Newfoundland re-

The Fishery Qicestion. 37-

mains the principal cod fishery of the world.
Both French and Americans are admitted^
under treaty, to the in-shore waters.^^ Dur-
ing the Revolutionary War, Halifax was an
English naval station, the refuge of American
loyalists.5^ So many of these people wished
to leave the United States that the evacua-
tion of New York had to be delayed until
transports could be furnished them.57 Re-
warded with office and grants of land in unin-
habited Nova Scotia they became the ruling
party on the north-eastern frontiers of the
United States. These regions had been
almost without a population.^^ Attempts at
revolution were suppressed by the English
garrison and the minority reorganized the
government, on paper, from the safe distance
of Philadelphia. 59 The fishing privileges of
the treaty were gained after a comparatively-
easy diplomatic struggle, but the negotiations
nearly went to pieces over the indemnification
of the loyalists. Congress recommended
amnesty and restitution, as had been prom-
ised. The States, however, were in no tem-
per for such legislation. It was most unfor-
tunate for the quiet enjoyment of the Fishery
under the treaty, that so many men with a

2,S The Fishery Qitcstion.

erievance inhabited the shores where the
liberty was to be exercised.

England, now in direct competition with
the products of the American Fishery, was not
without the power to obstruct the American
trade. In July of the same year that the
treaty was signed, an order in council prohib-
ited the importation of American fish to the
markets of the English West Indies. Con-
gress wished to meet the emergency and
asked of the States permission to retaliate.
This was not given. In the constitutional
convention Pickering said that the New
England States had lost everything by the
war. In the first Congress, Fisher Ames
declared that West Indian molasses had been
counted upon in exchange for the fish that
could not be disposed of elsewhere. He con-
cluded that if the West Indian demand for
fish were injured, '' we cannot maintain the
fisheries." Extraordinary measures were pres-
ently adopted to sustain the failing industry.^
By an act of 1 789 a bounty was granted on
the various kinds of marketable fish. It was
considered insufificient. By another act, in
1792, the bounties were abolished, and a spe-
cific allowance was established, according to

The Fishery Qztcstion, 39

tonnage. In spite of objections based on the
unconstitutionality of a pecuniary encourage-
ment to an occupation, the system was con-
tinued down to the reciprocity treaty of

1854.'^

The volume of commerce carried on be-
tween Great Britain and the United States
was greater than before the war. The twc
nations divided the carrying trade of the
world, yet all efforts in behalf of the Fisheries
were pronounced hopeless, in the face of
British opposition. A committee of Congress
reported in 1802, that it was doubtful if the
United States employed as large a tonnage
and as many men in the whale and cod fishery
as before the Revolution. Merchants com-
plained that the market was glutted with
British fish. Regrets for the good old priva-
teering days of the war were frequently ex-
pressed. From prosperity the fish trade fell
away until 18 14, when the value of fish ex-
ported was only one hundred and twenty-
eight thousand dollars.^^ A very unpopular
measure in New England was the Embargo.
It was partially evaded by the use of small
boats in the South American trade. Fish
spoiled in the warehouses or were confiscated

40 The Fishery QiLestioii.

in the ports of Europe. Meanwhile the pop-
ulation of Nova Scotia had doubled and be-
came alive to local interests. The operations
of American fishermen, under the late treaty,
were jealously noted. They were accused of
taking away the English trade ; of smuggling
and enjoying privileges in contravention of
public law. Watchers counted the American
fishing fleets as they passed the Strait of
Canso. The home government, in conse-
quence of colonial representations, was
brought to the conclusion that the treaty had
granted too much.^^ It was felt that some-
thing ought to be done for the loyalists of
Nova Scotia and New Brunswick, many of
whom expected that the result of the hostil-
ities would reinstate them in their old home-
steads.

In 1 8 14 a British squadron commanded for
a time the Maine and Massachusetts coasts,
exacted tribute from the salting establish-
ments on Cape Ann, and entirely suppressed
the use of any but fresh fish. On land there
was some ground for the remark of the Rus-
sian ambassador, that " England did what-
ever she pleased." The American commis-
sioners, who signed the treaty of 18 14 before

The Fishery Question. 41

the news of the battle of New Orleans, were
aware that a strong party at home wished
peace on almost any terms.

England made territorial claims, and, as an
inducement for their consideration, offered the
old fishing privileges stated to have been
abrogated by the war. The instructions of
the United States commissioners were to
obtain peace and preserve the Fishery. The
British Government refused to accept, in ex-
change, a renewal of the previous English
right to navigate the Mississippi.^"^

In 1782 part of the river was supposed to
be in British territory, but this was now
known to be an error. England maintained
that her right of navigation had also been
abrogated by the war. The negotiations
were marked by considerable temper on both
sides, and the Americans quarrelled among
themselves. Peace was concluded, but noth-
ing was said in the instrument concerning the
Fisher}^ England lost the navigation of the
Mississippi, which she had never used. The
theoretical basis of the American claim does
not appear to have been clear in the minds of
eminent American statesmen. Gallatin wrote
to Monroe that on the subject of the Fisher-

42 The Fishery Qitcstion.

ies the commission had done all that could
be done.

The only equivalent they had to offer was.
the navigation of the Mississippi, and that
had been refused. The British Government
at once proceeded to enforce its interpreta-
tion of the treaty. ^5 United States fishermen
were seized off Cape Sable, outside of the
three-mile limit, but the British charge d'af-
fairs at Washington replied to Mr. Monroe
that the captain of the English war vessel
had exceeded his authority. Other vessels
were now seized, some for good reason. It
was resolved to hold a convention between
the countries to define their respective fishing
rights.

The American case, developed in the cor-
respondence of John Ouincy Adams, rested
on immemorial usage, discovery and part
conquest, and on the nature of the treaty of
1783 f^ whether England at that time had
acknowledged the inherent right of the Unit-
ed States to the Fishery in British waters/^
To minds unacquainted with the peculiar
relations of the colonies to the Fisheries be-
fore the Revolution, or without sympathy for
the interests of the American trade, the de-

The FisJie^y Qicestioji. 43

mands of the United States were incompre-
hensible. Therein lay the weakness of the
American position. Selfish considerations
aside, De Vergennes could honestly say that
to claim the privileges of subjects after re-
nouncing allegiance was unprecedented.^^ In
fact, had the maritime provinces of Canada
been populous at the signing of the first
treaty the insecurity of such an arrangerr^ent
must have led to some modification of the
terms. Fishing in the open sea was then ac-
knowledged to be free to all the world, and
this general principle would have given the
United States the cod fishery on the banks.

Within three miles of the coast riparian
jurisdiction was the rule, and every vessel
crossing the marine boundary must, at the
pleasure of the riparian state, conform to the
regulations, including tolls for the use of es-
tablishments for the purpose of navigation
and fishing. These restrictions could be
modified only by treaty. ^^ American use of
the Fishery was not immemorial to the time
when the colonists fished as subjects of the
king and in virtue of permission granted in
their charters. Discovery, development and
defence of the Fishery were equitable claims.

44 The Fishery Question,

but to make them effective, In the presence of
a hostile population, the shores where they
were to be enforced should have been con-
quered and retained. Of the treaty itself it
was asserted that it was in the nature of a
deed of partition. The grant of the Fishery
was analogous to the cession of territory or
the demarcation of a boundary. It was urged
that the sequence of the treaty, as shown in
the acknowledgment of independence, the
cession of territory and the settlement of
boundaries made it an instrument permanent
in its provisions. 7°

Of the later view, that the Third Article was
an executed grant, acknowledging a perma-
nent servitude, it may be questioned whether
the participation of British subjects in the
Fishery, on equal terms with the people
of the United States, does not exclude such a
theory.^'

The American argument was not convinc-
ing, because the third article is susceptible of
a different interpretation. ^^ The British Gov-
ernment could and did reply, that the perma-
nent part was not only distinguishable from
the temporary, but that it was thus distin-
guished by the treaty itself, which mentioned

The Fishery Oiicstion. 45

the "rieht" to fish on the Grand Bank and all
other places in the sea, but only of the
'' liberty " to dry and cure on certain uninhab-
ited coasts. And further, that the privilege
of drying and curing, if intended to be per-
manent, would not have been made determin-
able by the settlement of the coast line.

Both governments were inclined to press
their opinions. John Quincy Adams, in con-
versation with the British minister at Wash-
ington, thought that the nations would have
to fio^ht and ouo^ht to.^^ Mr. Gallatin wrote
to Adams from London, that the provisions
of the third article were obnoxious to British
pride, and that no treaty stipulation could
provide for the security of the American in-
terpretation, in the event of a war.^*

In the convention of 181 8 the question of
the Fishery, though not the first in order of
discussion, was the first considered.^^ Misun-
derstandings menaced the peace of both
countries. At length the first article of the
treaty was inserted, under instructions from
Mr. Adams, authorizing the United States
commissioners to agree to a stipulation
whereby the United States should desist from
fishing, curing and drying fish within the Brit-

46 The Fishery Question.

ish jurisdiction generally, on condition that
these occupations should be secured as a per-
manent right, not liable to be impaired by
future wars, from Cape Ray in Newfound-
land to the Rameau Islands, and from Mt.
Joly on the Labrador coast through the
straits of Belle Isle, indefinitely northward
along the coast ; the right to include curing
and drying the fish as well as fishing.

In the treaty, as concluded, the first article
reads as follows: ''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 British Maj-
esty's dominions in America, it is agreed . . .
that the inhabitants of the said United States
shall have forever, in common with the sub-
jects of His British Majesty, the liberty to
take fish of every kind on that part of the
coast of Newfoundland which extends from
Cape Ray to the Rameau Islands, on the
western and northern coasts of Newfound-
land, from the said Cape Ray to the Ouirpon
Islands ; on the shores of the Magdalen Isl-
ands and also on the coasts, bays, harbors
and creeks from Mt. Joly on the southern

The Fishery Qicestioii. 47

coast of Labrador to and through the straits
of Belle Isle and thence northwardly, indefi-
nitely along the coast, without prejudice, how-
ever, to any of the exclusive rights of the
Hudson Bay Company, and that the Ameri-
can fishermen shall also have liberty forever
to dry and cure fish in any of the unsettled
bays, harbors and creeks of the southern
coast of Newfoundland, here above described,
and of the coast of Labrador ; but so soon as
the same shall be settled it shall not be law-
ful for the fishermen to dry or cure on such
portion so settled, without previous agree-
ment 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 or harbors of
His British Majesty's dominions in America,
not included in the above mentioned limits.
Provided, however, that the American fisher-
men shall be permitted to enter such bays or
harbors for the purpose of shelter and of re-
pairing damages therein, of purchasing wood
and of obtaining water and for no other pur-

48 The Fishery Question.

pose 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 abusing the privileges
hereby reserved to them."

Originally the final proviso permitted the
American fishermen to enter for the purchase
of bait, *' tinker mackerel," or herring cut
into pieces. This was subsequently omitted
with the consent of the American Commis-
sion. The mackerel fishery had not as yet
assumed large proportions. Its subsequent
importance was unforeseen and naturally un-
considered. No licenses to mackerel boats
were issued prior to 1828.^^ Cod were seldom
pursued within the three-mile limit. In the
cod fishery it was not a very valuable conces-
sion to purchase bait. But to land and cure,
on the contrary, were great conveniences.
By the convention the United States in this
respect were better off than before. The bar-
gain was not considered bad. All fisheries
not guaranteed by the treaty were expressly
renounced, and purposely, to exclude the im-
plication that the rights obtained were in the
nature of a new grant, to place the liberty
now secured on the same permanent basis

The Fisheiy Qicestion. 49

and to make It appear expressly that the re-
nunciation was limited to three miles from
the coasts.

Gallatin wrote from the scene of the con-
vention that if compromise must come, now
was the time. No court in England would
interpret the former treaty from the United
States' standpoint. If the matter were not
arrano-ed, immediate collisions must ensue.
We then would have to fight. ^^ Mr. Adams
said: ''This secures the whole coast fishing
three miles from the shore." For the next
few years bounties on tonnage, drawbacks on
salt duties, license fees, exemption from
entry and clearing charges, the enterprise of
the American fishing industry and the supe-
riority of their fleet over the Canadian boats,
rendered the business, on the whole, prosper-

OUS.7^

With time, Provincial, in contradistinction
to British interpretation of this treaty, and
notably the unfriendly spirit of provincial
regulations, was responsible for a feeling of
irritation, so pronounced as almost to have
invited a war. In 18 19 an act of Parliament,
empowering the King to make Orders in Coun-
cil for regulating the Fishery and imposing

50 The Fishery Q2iestion.

the penalties of fines and confiscations for
trespass, was used by the Provincial legisla-
tures to set a premium on interference with
American fishermen.''^ The growth of the
mackerel fishery, the habit of the fish to run
in shore, " chumming," ^° viz., the throwing
out of surface bait, an oily mixture of porgies
and clams, and the fact that half the Ameri-
can mackerel fleet visited the Gulf of St.
Lawrence and the Bay of Chaleurs, via the
Strait of Canso, increased the temptation of the
Americans to transgress the three-mile limit
and intensified the determination of the in-
habitants to enforce a strict interpretation.
Only one vessel was seized in 1823. In 1824
nine were taken. The following year, peti-
tions from merchants and fishermen induced
the United States Government to send a war
vessel to the fishing grounds.^' The repre-
sentations of the United States Government
remained without an answer, nor had the
British Government received a reply to their
note. The State Department incurred the
reproach of inactivity. American vessels,
said to have committed no serious infraction
of the convention, were chased about by Brit-
ish and Provincial captains on charges of

The Fishery Qtiestioii. 51

hoverinor, fishing within the three-mile limit,
purchasing bait, selling goods, or landing and
transshipping fish, while the inhabitants of
Nova Scotia petitioned for more stringent
enforcement and passed an exceedingly un-
friendly act, that gave to " cruisers " and cus-
toms officers the power to harass or detain
American fishine vessels and to confiscate
the property of American citizens. The
manner in which these provisions were en-
forced varied. Leniency and harshness de-
pended on the discretion or temper of the
of^cers on duty. It was entirely a question
of interpretation of the first article of the
treaty.

Hostility culminated in 1841, when the
government of Nova Scotia submitted to the
Crown lawyers a series of questions, on which
their opinions were sought, as a basis for
future leofislation. These involved the rieht
of the United States, under the convention of
t8i8, to navigate the Strait of Canso, to fish in
the bays of Fundy and Chaleurs, and to land
on the coast of the Mao^dalen Islands. The
Crown lawyers replied, that bays were to be
measured from headland to headland, that the
three-mile limit should be drawn at ricrht

52 The Fishery Questzoju

angles and outside of such an imaginary line ;
that the convention of 1818 did not neeative
the right of the United States to navigate the
Strait of Canso, but that independent of
treaty, no foreign state possessed such a right.
Also, that by the terms of the convention
American fishermen were prohibited from
landing on the shores of the Magdalen
Islands.

As a general principle the exclusive jurisdic-
tion of a government over its bays may be
asserted, and no other reason than its own
convenience need be alleged. The United
States has so asserted it, and has in some
cases drawn the line from headland to head-
land,^^ yet it was fair to conclude that the con-
vention of 18 1 8 should be interpreted in a
friendly spirit, as intended to give to Ameri-
can fishermen every advantage compatible
with the terms. On general principles also,
the right to navigate a strait was no infraction
of the territorial jurisdiction of the state in
possession of both shores, but was controlled
by the right to navigate the seas thus con-
nected.^3 The Strait of Canso separates Nova
Scotia from Cape Breton. ^^ It is twenty
miles long and in one place not more than a

The Fishery Question. 53;

mile wide. In 1820 the government of Nova
Scotia annexed Cape Breton and laid out
counties across the strait. All vessels used
the passage on their way from the Atlantic to
the Gulf of St. Lawrence, as it avoided the
long and dangerous circuit around the Island
of Cape Breton. The American fishermen
had thus used it since the beginning of the
Gulf Fishery, and had paid tolls, when, by the
McLean arrangement, British vessels were
passing and repassing unmulcted through
Long Island Sound. As for the Magdalen
coasts, the locality is a herring, not a cod,
fishery. These fish were taken in seines or in
weirs built on the beach, almost within low
water mark. The convention conceded the
liberty to take ** fish of every kind " on the
shores of these islands. As it was intended by
the convention to give the herring fishery, the
right to land is accessory to its prosecution.

On the arrival of the opinion of the Crown
lawyers in Nova Scotia, the authorities pro-
ceeded to employ its convenient law, as if it
had been communicated to, and acquiesced in
by, the United States Government. They did
not get a fieet from England, though they
asked for it. Raising a small force of their

54 ^/^^ Fishery Question.

own, they denied the right of passage through
the Strait of Canso, an arbitrary act, at vari-
ance with the sentiment of the home govern-
ment, opposed to EngHsh public opinion, and
a hostile demonstration against a friendly
power. They prevented Americans from land-
ing on the Magdalen Islands, and on the 30th
of June, 1843, they seized a little American
vessel, the Washington, ten miles from the
shore in the Bay of Fundy. Mr. Everett, the
American minister to England, protested.
The British Government apparently willing to
avoid extreme measures, except when under
colonial pressure, offered to admit our fisher-
men to the Bay of Fundy. Mr. Everett did
not regard this as a concession, but accepted
it as a right. When the news of this disposi-
tion of the question reached Nova Scotia, the
authorities protested to the home government.
The protest was successful and the assurance
was conveyed that England would adhere to
a strict interpretation. The question was
ultimately referred to a commission, in 1853.

The commissioners disagreed and left the
decision to the umpire, Mr. Bates, of Baring
Brothers, who ruled that no indentation
of the coast, exceedinq- ten miles in width,

The Fishery Question. 55

from headland to headland, could be con-
sidered a bay in the premises. An opinion,
illustrating *' the rational principles of Inter-
national Law," followed in the Anglo-French
treaty of 1867,^^ but not as yet accepted by
the Dominion of Canada. At the root of
the Provincial demonstrations lay the desire of
forcing the United States into concessions of
reciprocity. By adopting free trade England
had curtailed her demand for the natural
products of the British American provinces.
Participation in the United States market, on
favorable terms, thus became a primary object
to the Canadians, and in 1847 the Canadian
Parliament petitioned the Queen for reciproc-
ity with the United States. England had fol-
lowed the aggressive policy of the provinces
with reluctance. She had followed, neverthe-
less. Until free trade triumphed, it was not her
commercial policy to seek reciprocity. When
the principle was adopted, a measure of free
trade with the United States mieht be ob-
tained through Canada. The zeal of the
provinces almost defeated their end, under
the impression that the tribulations of the
American fisherman miorht be exhibited to his
Government, as a reason for conferring a priv-

56 The Fishery Question.

Ilege upon his tormentors.^^ Statements In
regard to the trade were contradictory. In
England the utiHty of protecting the Cana-
dians was questioned, as fish caught by British
subjects could not be disposed of in Europe
or the United States. It was useless to con-
tend against the American bounty system.^^
On the other hand, modifications in the
United States revenue laws were opposed, on
the ground that Canadian fish already monop-
olized the export trade.^^ At this juncture
Lord Elgin, then Governor General of
Canada, arrived in Washington with the ex-
press object of negotiating a treaty. The
** Nebraska Bill " was the absorbing event In
political circles at the time. He was in-
formed by the Pierce administration that the
greatest hostility to the treaty might be
looked for among the Democrats, and he set
about to overcome it with so much tact and
the quality since recognized as '' personal
magnetism," that at the conclusion of a fort-
night the negotiation of seven years' standing
between the governments was brought to a
successful termination. There was a good
deal said, Intimating that the treaty had been
"floated through on champagne," but there

The Fishery Question. 57

were graver forces behind it, for while return-
ing toward the seat of his government Lord
Elgin was feted not only in Canada but on
the American seaboard. Curiously enough the
Canadian fishinor interest took alarm. While
the treaty passed the United States Senate,
the maritime provinces of Canada, not at that
period confederated, made a sharp although
brief resistance.^^ Thus reciprocity came in
1854. Canadian natural products were ad-
mitted into the United States free, and fishing
rights, analogous to those of 1783, were
granted in exchange.^ This time there was
no doubt as to the consideration. Canadian
trade quadrupled, and the American fisher-
men were easily tolerated all along the pro-
vincial coasts, until the termination of the
treaty by the United States in 1866. The
tonnage of the American fishing fleet had in-
creased, but the Canadian trade prospered to
such an extent that the American fishermen
dreaded the growing competition. There had
been complaints of the commercial policy of
Canada during this period, and a stronger
feelinof towards its close.^' From an unnat-
ural cordiality, on the eve of the Civil War,
the Enorllsh Government and rulinor class sud-

o o

58 The Fishery Question.

denly changed to an attitude of unfriendliness
amounting to insult, a disposition to avail
themselves of the difficulties of the United
States amounting to menace, and the permis-
sion of operations by the Confederacy almost
amounting to war.^^ Canada was the rendez-
vous of British armies and navies. There
was talk of making it a strong military power
and of annexinor Maine.

It was the refuge of the most venomous of
the enemies of the United States. When
the hands of the Federal Government were
free, reciprocity with Canada ceased on
notice, and Napoleon was requested to aban-
don Mexico. Little attention was paid to
the complaints of the provinces, that their
wishes had not been consulted in the abroga-
tion of the treaty and that the Americans
continued to fish as before in spite of the
proclamation of the President. American
fishermen were allowed within the three-mile
limit for a time, on the payment of a license
fee of fifty cents a ton. This was afterwards
raised to two dollars. The fourth year only
twenty-five small vessels cared to purchase
the privilege, the larger ones being willing
to take their chances outside. ^^ All foreign

The Fishery Question. 59

fishermen, by Dominion acts of 1868 and
1870, and by an Order of the Governor Gen-
eral of Canada, were warned off Canadian
waters and the nature of the restrictions was
communicated to the United States Govern-
ment, which in turn, by a treasury circular of
1870, called the attention of the American
fishermen to the regulations. Canada, Nova
Scotia and New Brunswick were united in
1867, and the Fisheries erected into a depart-
ment under a minister. All intention of in-
terference with American ricrhts was dis-
claimed, but the spirit interpreting the en-
forcement of the laws remained unfriendly.
Bait and supplies were denied. There was
an intimation that the transshipment of fish
in bond would be stopped, and the headland
dispute was held in abeyance, pending some
satisfactory arrangement with the United
States. Canadian cruisers cost their govern-
ment nearly a million of dollars in the years
1869 and 1870, and the practice of giving
warninors ceased. Against the enforcement

o o

of these ** technical rights" the United States
Government protested.^^ The Canadian posi-
tion was, that the Fishery needed protection,
especially against the Americans who had

6o The Fishery Qicestion.

fished out their own waters ; that licenses
were discontinued because the Americans did
not care to buy them ; that the system of giv-
ing warnings had to be discontinued as they
were not regarded, and that it was exceed-
ingly difficult to discover interlopers in the
bays. Also that three-fourths of the mack-
erel catch was taken within the three-mile
limit, and that the cost of the cruisers and
the protection of the home industry war-
ranted a strict interpretation and enforcement
of the convention of 1818.

Four hundred vessels were boarded for
transgressing the three-mile limit. Fifteen
were condemned, and one Canadian cruiser
spent the winter of 1871 in the Bay of
Fundy, thus saving, according to the Do-
minion reports, fifty thousand dollars' worth
of fish to the natives. Canadian trade de-
clined after 1866 more rapidly than it had
increased during the treaty. A convention
of Canadian merchants was held with the
object of finding an outlet for colonial prod-
ucts in the West Indies.^^ The prospect was
not satisfactory. Reciprocity again became
the object of the Dominion Government.
There were now a number of claims waitinor

The Fishery Question. 61

for adjustment between Great Britain and
the United States. By far the most impor-
tant were those arising from the depredations
of the Alabama on American commerce.
They had become more definite in conse-
quence of their assumption by the United
States Government. The Fishery Question
offered a convenient excuse for a Joint High
Commission.''^

One milHon dollars for the in-shore fishery,
in perpetuity, was offered by the American
Commissioners during the negotiations pre-
ceding the signing of the treaty of Washing-
ton. Freedom from molestation, rather
than the profit of fishing in-shore, constituted,
in their opinion, the value of this concession.
The British Commissioners considered this
sum inadequate and found insuperable objec-
tions to the transfer of the right. Finally it
was decided to admit the United States to
the Fishery in consideration of the remission
of the duty on Canadian fish and fish oil, and
the appointment of arbitrators to assess the
value, if any, of the British concession in ex-
cess of the American, which included a free
fishery on the United States coasts, north of
the thirty-ninth degree of north latitude.

62 The Fishery Question.

The convention of 1818 was recognized as
the basis of this understanding. No limit
was set to the amount of a possible award.

One commissioner was to be nominated by
the President of the United States, one by
Her Britannic Majesty, and in case the gov-
ernments were unable to agree upon a third
within three months, the nomination was to
be made by the Austrian Ambassador at
London. Canada protested in the first in-
stance to the nomination of any foreign rep-
resentative at Washington. The chairman
of the English Joint High Commission had
admitted the impropriety of the nomination
of the Belgian minister in particular. After
the lapse of the prescribed time and the fail-
ure of an attempt to renew the reciprocity
treaty of 1854, the nomination devolved upon
the Austrian Ambassador, who selected M.
De la Fosse, Belgian minister to the United
States Government.

The pertinacity shown by the British Gov-
ernment to obtain the appointment of this
gentleman was apparent throughout the
diplomatic correspondence, subsequently pub-
lished. Had It been generally known at the
time, it is extremely improbable that either

The Fishery Question, 6

o

M. De la Fosse or his government would
have consented to the choice. The impro-
priety of the selection arose from the peculiar
relations existing between the Belgian and
English reigning families. A delicate consid-
eration, but none the less real.

The commission met at Halifax in 1877.^^
Mr. Kellogg represented the United States ;
Mr. Gait, a Canadian, Her Majesty's Govern-
ment. M. De la Fosse acted as umpire at the
request of both Powers. The discussion was
ably conducted by counsel. The British case
asserted the extent and value of the in-shore
Fishery, the increase of the American mack-
erel fleet, and the privileges, included in the
abolition of the three-mile limit, of procuring
bait and supplies, transshipping fish and en-
gaging Canadian crews. Not a single Cana-
dian fisherman had used the American con-
cession north of the thirty-sixth degree of
latitude, under the treaty of 1854, because it
was worth nothing, while three-fourths of the
American mackerel were taken in the British
waters.

Besides, the value of the in-shore Fishery
should be estimated not by actual, but by its
possible use. A million dollars a year was

64 The FisJicry Question.

asked for the privilege. The American case
regarded the commission simply as a refer-
ence for an accountino^. To admit one-fourth
of the American catch as taken within the
limit was a liberal allowance. A liberal equiv-
alent was the remission of duties on Canadian
fish and fish oil, amounting to three hundred
and fifty thousand dollars annually. An
award of five million, five hundred thousand
dollars in favor of Great Britain was rendered
the 23d of November, 1877. It was generally
felt to be excessive in the United States and
not to be accepted as a permanent measure of
value. Canadian opinion was to the effect
that the United States had the " sunny side "
of the bargain.

The Canadian premier was taken to task,
and the treaty ratified *' out of respect for the
Empire."

The treaty of Washington went into opera-
tion in 1873, to continue in force for ten
years, and to be terminated by either party on
two years' notice. In 1878 the Senate Com-
mittee on Foreign Relations reported that the
Halifax award be approved, and submitted a
bill providing for its payment. Mr. Hamlin,
the chairman, suo-o-ested that Great Britain

The Fishery Question. 65

might consent to a reduction of the award, on
the ground that the commission had pro-
ceeded ultra vires in the consideration of
extraneous matter, and on the inference that
unanimity was required of the commissioners
in rendering their decision. To this report an
amendment was carried, providing that the
remission of duties on Canadian fish and fish
oil should be repealed as soon as consistent
with articles XVIII. and XXI. of the treaty.
A concurrent resolution was then passed,
authorizing the payment of the award, if the
President should consider that the crood faith
of the Nation demanded it. A curious pro-
viso. In the correspondence that followed
between Mr. Evarts and Lord Salisbury, the
former resumed the crround taken in the
report of the committee, and displayed, in
addition, the returns of the American mack-
erel fishery for the four years already passed
under the treaty, to show that the privilege
was worth, at the highest computation, one
hundred and twenty-five thousand dollars per
annum, or one million, five hundred thousand
dollars for twelve years. At a net valuation,
twenty-five thousand dollars per annum, or
S

66 The Fishery Qiiestion.

three hundred thousand dollars for twelve
years.

The award was five million, five hundred
thousand dollars, and the duty remitted the
Canadians four million, two hundred thou-
sand dollars. According to the one compu-
tation the United States lost nine million,
four hundred thousand dollars ; according to
the other, ei^ht million, two hundred thou-
sand dollars. The United States Government
would not press its objections against the
deliberate judgment of Great Britain. Lord
Salisbury, in reply, admitted that Mr. Evarts'
argument was powerful, but thought it capa-
ble of refutation. The British Government
based their claim on the award, as it stood.
To a second communication from Mr. Evarts
Lord Salisbury made no reply. The award
was promptly paid.'^^

During the operation of the treaty Ameri-
can fishermen were on one occasion driven by
a mob from the waters of Fortune Bay, New-
foundland, on the ground, as alleged, that
they were fishing on Sunday, in contraven-
tion of the local statutes. The incident
served to accentuate the difference that is so
apt to exist between the Imperial and Colo-

The Fishery Quest ion. 67

nial interpretation of the fishery clauses of a
treaty, as well as to mark the discrepancy
between public and municipal law.

Treaty obligations were acknowledged to
be supreme, but the question arose whether
regulations, affecting both parties alike, were
admissible.

Lord Salisbury took the ground, that the
fishery rights were bought subject to existing
regulations. Mr. Evarts contended that in
such a case the rights were worthless, and the
duty on Canadian fish should be revived to
reimburse the sufferers by this particular act
of violence. Lord Granville, who succeeded
Lord Salisbury when the liberal government
came in, conceded that local laws, in variance
with Imperial treaty obligations, should be
repealed as a matter of international obliga-
tion.

He objected to the theory that would
make American fishermen wholly free from
restraints, and defined the rieht to fish '* in
common " as existing under reasonable local
regulations.

The British Government paid seventy-
five thousand dollars damages for the af-
fair at Fortune Bay, and an agreement was

68 The Fishery Question,

made for drafting rules in regard to a close
season.

The United States did not fail to give due
notice of the abrogation of the treaty.^ It
expired July i, in the midst of the fishing
season of 1885 ; a provisional treaty, relating to
fisheries, commerce and navigation, arranged
by the English minister and the United
States Government, having failed to pass the
Senate in 1874. In answer to a note of the
English minister, communicated in October,
1883, proposing a revision of the treaty, and
recalling the allusion in President Arthur's
message to the appointment of a commission,
Secretary Frelinghuysen had replied to Mr.
West in July, 1884, that action might better
be postponed until the next meeting of Con-
gress. The correspondence between Secre-
tary Bayard and Mr. West covers the period
from March 12 to June 22, 1885, and terminated
in a temporary diplomatic arrangement,
whereby the privileges of the recent treaty
were continued to American fishermen during
the year. On the other hand, it was under-
stood that the President of the United States
should recommend to Congress a Joint Com-
mission " affording a prospect of development

The Fishery Question. 69

and extension of trade between the United
States and British North America." It was
also promised that no hmit should be set
to the proposals to be brought forward by
either party in the commission suggested. '°°

Whatever steps had been taken by the
United States Government, looking to the
appointment of a commission, were brought to
a standstill by the influence of the American
fishing interest upon Congressional action.

Consequently the temporary arrangement
for the season of 1885, proceeding from the
good-will of the two governments, and find-
ing a precedent in 1871, has not had the de-
sired effect of avoiding misunderstanding. '°'
Canada considered that she had given valua-
ble privileges for nothing, besides facing a
duty of one per cent, a pound on prepared
fish, levied in the interest of an American
monopoly. The concession, in spite of all past
experience, may also, in some quarters, have
raised hopes of an indefinite postponement of
any return to the state of things existing be-
fore the treaty of 1873. In the present atti-
tude of the Dominion and Imperial govern-
ments there is nothing unusual. Citizens of
the United States and subjects of Her Brit-

yo The Fishery Quesfi

o?i.

annic Majesty can find little satisfaction in the
recent developments, except that the ques-
tions raised are still within the limits of ra-
tional and legal discussion. To this result the
attitude of the government at Washington
has certainly contributed.

Several American fishing vessels were
seized by " cruisers " during the season of
1886. A few were fined. One is still in cus-
tody and one has been condemned and sold
under circumstances that probably entitle her
owners to damages. In more than one hun-
dred instances there have been complaints of
interference by Canadian officials. Corre-
spondence between the United States and the
Imperial Government has been constant. '°^
Throughout it occurs, like a refrain, the dip-
lomatic formula of the English minister,
resident at Washington, having the honor to
acknowledge the notes from the Department
of State and referrinof their contents to the
Foreign Office. The Imperial Government,
while obviously anxious to avoid difficulty
with the United States, has practically
adopted the Canadian defence of Canadian
action, and cites, in justification, not only the
Convention of 18 18, the Act 59, George III.,

The Fishery Qtiestzoji. 71

and the " British North American Act," but
also legislation, having its inception in the
Dominion Parliament, of ever - increasing
stringency, culminating, during the past year,
in an act evidently proposed to cover recent
seizures and waiting Royal assent until No-
vember last. The effect of all this activity,
taken in connection with the latest circulars
issued to the Dominion custom-houses, has
been a most technical interpretation of the
Convention, the denial of any commercial
riorhts to American fishermen in Canadian

o

ports and the assumption by the Dominion
Government of competency to decide on the
validity of permits to " touch and trade,"
issued by an official properly qualified under
the laws of the United States. This attitude
is explained by a statement of the practice
of the Dominion Parliament to make enact-
ments for the protection of the Fishery, sub-
ject to the approval of the home govern-
ment, an assertion of the authority of Cana-
dian officials, whether their instructions
emanate from the Queen, or from her repre-
sentative, the Governor General, and a refer-
ence to the jurisdiction of the vice-admiralty
courts, with an appeal to the Imperial Privy

72 '1 lie Fishery Question,

Council. The Qreneral extension of commer-
cial relations between the United States and
Great Britain is acknowledged, and it is even
intimated that a larger freedom is desired.
At the same time it is objected that were the
Canadian ports to become the base of opera-
tions for American fishermen, under cover of
commerce, the Convention of 1818 would, to
all intents and purposes, be repealed by the
use of '' touch and trade " permits. The
United States Government has repeatedly
and emphatically protested against the recent
seizures and detentions, and through its min-
ister at the Court of St. James denies that
any laws exist authorizing these outrages.
Moreover, were such laws extant they could
not be invoked in a technical spirit, unworthy
of sovereign and friendly nations. Mr. Phelps
also maintains that the gradual extension
of commercial privileges now expressly re-
quires that each party shall allow to the
vessels of the other in her ports the same
facilities of trade as are permitted to her own
shipping. Finally, as for the vice-admiralty
courts, the question raised is not at all one of
individual rights, but of international obliga-
tion, therefore Dominion courts have here no

The FisJici-y Question.

/ o

jurisdiction. The subject is for the consider-
ation of the representatives of the United
States and the Imperial governments. It is
well understood that the American interest
does not claim the riorht to fish within the three-
mile limit, except in the localities reserved by
treaty. '°3 The opinion expressed is to the
effect that the concession is not of sufficient
value to justify an enlightened selfishness in
remitting the duty on Canadian fish, not to
mention any extensive measure of reciproc-
ity. The area outside, where the right is
unquestionable, is abundantly sufficient, owing
to the use of the purse seine. In spite, there-
fore, of various theories affirming that the
mackerel hibernate on the Canadian coasts,
or are kept in-shore by the influence of Arctic
currents and acknowledging the capricious-
ness of the fish,'°+ none of the American
fleet have been seized during the past year,
while actually fishing, and in only two in-
stances for a technical attempt to fish. In
almost every case the seizure has been com-
plicated by a constructive evasion of the cus-
toms laws. While the United States Minis-
ter characterizes the strict interpretation of
the Convention of 1818 as ''preposterous,"

74 The Fishery Question.

the Secretary of the Treasury, in admit-
ting the resemblance between the customs
laws of the two countries, reports that the
behavior of the Dominion collectors has
been '' brutal." '°^ Since 1823 the Presidents
have had the power to discriminate against
foreign vessels in regard to charges and
duties In the ports of the United States.
On the 27th of May, 1886, Congress added
the suspension, at discretion, of commercial
intercourse. This has not been invoked.
On the contrary, the conduct of the United
States was magnanimous. '°^ The government
may well have hesitated, in the interest of
its own citizens, to lay an embargo upon
trade. The serious questions of veracity be-
tween ship-masters and Canadian officials
were of themselves enouorh to recommend
caution. '°7

During the last session of Congress two
bills of a quasi-retaliatory nature were con-
sidered.'°^ The one originating in the House
might have prohibited not only all commercial
relations with Canada, but even the entry of
the rolling stock of Canadian railways. To
this strict quarantine the Committee of the
Senate objected, and proposed to directly

The Fishery Question. 75

menace only that portion of American and
Canadian trade that is carried on in Canadian
vessels. The House having shown a disposi-
tion to insist upon its own bill, there was a
possibility for a while that all action would
be suspended. What is virtually the Senate
bill was ultimately enacted. Compared with
the measure of the previous year, it increases
the absolutism of the President over the oc-
cupations and fortunes of persons engaged in
trade between the United States and Canada-
It assumes interpretation of treaty rights and
the efficacy of *' touch-and-trade " permits in
giving a commercial character to a fishing
vessel ; claims for all such vessels the same
treatment that is accorded to ''the most
favored nation," and makes it the duty of the
President — at his discretion, and when he
shall be satisfied of the infraction of any of
the rights in question — to deny to the vessels
of the British Dominions of North America,
in whole or in part, any entrance into the
waters or ports of the United States, except
in cases of distress, and to prohibit the entry
of fresh and salt fish or any other product of
the said Dominions, or coming from them,
into the territory of the United States.'"^

76 The Fishery Qtiestt07z.

The general objection to all such legislation
is that Congress should take the responsibility
of reirulatino: trade, and not foist its consti-
tutional duties upon the executive. Powers
of this kind, though not to this degree, have
been granted before. It is questionable
whether they were ever successful in com-
passing the end proposed.

The particular objections to this measure
arise from the circumstances of the case.
One hundred years ago the Fishery was the
principal industry of the North Atlantic sea-
board ; now it is an inconsiderable factor
among the industries of New England, and
an infinitesimal one in the business of the
whole country. It would be fairer to say that
in the maritime provinces of Canada alone
the condition of the Fishery is the measure of
prosperity. "° The capital Invested in the
New England Fisheries Is estimated at $19,-
937,607,'" and the annual value of the catch
at $4,590,000. The Canadians, with a capital
of $6,697,459 obtain an annual product of
$17,722,973.'" During the year 1886, out of
a total Import and export trade of $69,449,462
between the United States and Canada, the
total value of Canadian fish involved, includ-

The Fishery QiLestion. yy

ing fresh fish not liable to duty, was $2,390,-
393, a ratio of 3}^ per cent."^ If the special
mention in the Retaliation Act of a possible
prohibition of Canadian fresh fish has more
than a passing significance, the statistics will
give an idea of the relative value of the traffic
at which this extraordinary measure is di-
rected. It has been recently pointed out that
our importation of eggs from Canada exceeds
our importation of dutiable fish by nearly
$800,000, and nearly equals our importation
of all kinds of fish."* Without endeavoring
to estimate the derangement of general trade
suggested by the act, and remembering that
a Canadian authority has estimated the bal-
ance from 1872 to 1882 at $153,827,937 in
favor of the United States,"-' it can be seen
that the aggregate tonnage engaged between
American and Canadian ports is not second to
that employed in our trade with England."^
Canada may be permitted to wonder that
reciprocity between the United States and
Mexico is not believed to be impossible, when
the whole volume of our trade with the
southern hemisphere for three years past
amounts to $122,330,607 against $121,321,378
with her alone. "^ The Secretary of the Treas-

y^ The Fishery Question.

ury has informed the House that the govern-
ment may lose in duties now paid by Cana-
dian goods, $4,476,900 per annum. "^ Estimat-
ed on the basis of the annual New England
catch, this is equivalent to a bounty of almost
100 per cent., and is nearly as much as was
paid for all the privileges claimed during the
twelve years of the treaty abrogated in 1885.
Certainly, if the provisions of this act be
applied to anything but the fish trade, it may
be anticipated that much misrepresentation,
loose statement, and manufactured excitement
will wither in the flame of interested opposi-
tion. If used only to prohibit Canadian fish,
the price will probably advance while the de-
mand declines, as was the case last year."^
Yet the Fishery, though a small thing, is our
own. It has a right to expect proper encour-
agement and support. Why should the dis-
cussion be limited to one class of expedients ?
It is not at all sure that the difficulty can be
as well met by retaliation on Canada as by
revision of our own tariff. How-orreat a bur-
den this imposes on all fishing ought to be
calculated. Whether it fosters the industry
may be doubted, when that small portion of
it, represented by the ''sardine" packing

The Fishery Question. 79

houses of Eastport, capitalized at $1,000,000,
has paid in one year $50,000 duty on tin
plate. '^'' Few people are fitted by habit or
occupation to form a conception of the mag-
nificent courage that mans the boats for '' the
Georges " or drops anchor among a fleet on
the banks. '^' It is the qualities required
amonof the workers at this business, and not
their gains, that single them out for admira-
tion. The difference now existing between
the wholesale and retail price of fish is from
100 to 200 per cent.'^^ This discrepancy is of
no benefit to the catcher. If neither he nor
the consumer are to be considered, but some
one else, then not only is the sympathy of the
public alienated by retaliation, but the en-
deavor to ascertain how an important article
of food may become more abundant and less
expensive will be quickened. What are our
rights, guaranteed by an arrangement framed
before the recognition of the mackerel fishery,
and signed in 1818, the same year that the
United States laid an embargo, at a time when
our commercial relations with Great Britain
have been characterized as "mediaeval?"
Where is the treaty to modify these hard con-
ditions and, especially, where is the *' most

8o The Fishery Qicestion,

favored nation " clause ? Are not the procla-
mations cited'^3 in the nature of mutual con-
cessions on both sides, and liable to be revoked
whenever either party sees fit to adopt so
mistaken a policy? If, as the Senate report
says, the exclusion of Canadian vessels from
the ports of the United States is not deroga-
tory to treaty obligations, is a strict enforce-
ment of the Convention of 1818 absolutely
unjustifiable? Have we not refused to pay
for some of these concessions on the ground
of their uncertainty ? Is the distinction
drawn by Canada insupportable when our
own law, placing Canadian fishermen and
traders on the same footing, dates from June
last?'^^ What authority that both parties
are bound to respect, has decided that Cana-
dian port privileges are accessory to deep-sea
fishing rights? The Dominion is not tracta-
ble, as the Imperial Government knows — very
likely to its sorrow. In the midst of this
trouble, Canada has undergone a general elec-
tion, and the methods of its government for
the protection of the fisheries have been sus-
tained. The Provinces are playing a danger-
ous game. Should retaliation take its course

The Fishery Question. 8i

their sufferings would begin at once and
would be out of proportion to ours.

If their wishes are considered by the
United States it will be in spite of, rather
than because of, some recent performances.
This is perhaps the reason why, after all the
reiteration of the fact that an adjustment
belongs to representatives of the United
States and the home governments, the
Dominion is recoo^nized and selected to bear
the brunt of non-intercourse. The voices
that have cried war, if they were serious, have
not been taken seriously. Granted that the
United States have the right to abrogate the
Convention of 1818, the proposition that the
Fishery of 1 783 would thus revive, whatever
force there may be in the theory, is practically
as improbable as that England might abro-
gate the latter treaty and claim us as subjects
of George III. An abrogation, in the light
of experience, would place our fishermen
where they were in 181 7, worse off than
they are to-day, for our negotiators at that
time secured an extensive acknowledgment
of our rights to the in-shore cod fishery.
Another ad i7ite7^ivi arrangement is under-
stood to be contemplated. It can hardly be
6

82 The Fishery Question,

useful unless it contains not onl)- the promise
but the potency of a new treaty or an Inter-
national Commission.

The Importance of fairness in attempting
a solution becomes evident when it is remem-
bered that the relations of the rival interests
vary with every phase of development on the
North-east Coast ; with every new method of
catchinor fish ; with the fluctuations of markets
and the possibilities of speculation. The
fishermen are of the same race and have many
characteristics in common. A proportion of
them may be found under one flag or the
other, as the conditions favor the United
States or Canada. The unfriendliness of de-
priving a neighboring country of a natural
market for Its products, and the right of a
nation to protect any or all of its industries,
provoke passionate discussion of purely eco-
nomic theories, wherein active politics often
denies facts and forces the Interpretation of
treaties. The nature of the connection be-
tween England and her colony, with its party
lines strongly defined on both sides of the
Atlantic, Is germane to the subject, as well as
the necessity of reforming the present trian-
o^ular relations between the United States,

The Fishery Question. 83

Great Britain and the Dominion of Canada.
The whole sio^nificance of laws affecting the
commercial intercourse of the two nations is
in doubt, and the assessment of damages for
recent ex parte interference must be consid-
ered.

The solicitude in some quarters, lest no
representatives on the part of the United
States would be sufficiently competent or de-
voted to maintain the best interests of their
country, is unworthy. It is not warranted by
the history of our diplomacy, or generally
believed. Its reiteration is a trifle suspicious.
Even the Halifax award had its Alabama sur-
plus.

Canada will not be expected to voluntarily
submit to become an inland State by the
seces.sion of her maritime provinces. The
idea of a peaceable annexation of all Canada
might find its realization in the fullest reci-
procity,— and reciprocity on the condition
that Canada adopt our tariff against the rest
of the world, is distinctly annexation. The
Fishery Question, always annoying, becomes
occasionally intolerable and forces an adjust-
ment. It is to be hoped, in reason, that we
are to have one this year. If possible, one

84 The Fishery Qicestion.

that may last longer than its predecessors.
Both the Imperial and the Dominion govern-
ments must now understand that the fullest
commercial privileges to our fishermen in
Canadian ports, is the real point to be con-
ceded. On the other hand, the large and
true policy announced by the President,'^^-
and a growing disposition in the community
to listen to both sides, are signs of the best
augury. A new treaty, based on a compre-
hensive understanding of the situation in
the United States and in Canada, need
not necessarily be preceded by an Interna-
tional Commission. Should, however, an
International Commission seem to afford the
best opportunity for an adequate discussion
of the whole subject, it would be an act of
doubtful patriotism for either side, to insist on
less efficient methods.

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1. ♦' Narrative and Critical Hist, of Am./' ed. Winsor, Vol. 2.

2. Charlevoix ; Shea's Trans., Vol. 2.

3. Bury ; " Exodus of the Western Nations."

4. Collection of Mass. Hist. Soc, 2d Series, Vol. 2.

5. De Circourt ; " Hist, de I'Action Commune de la France,"

etc. Vol. 3.

6. Coll. Maine Hist. Soc, Vol. 2.

7. Sabine ; Rep. on the Fisheries.

8. Kirke's " Conquest of Canada."

9. Garneau; " Hist, de Canada."

ID. Laet; "Hist, de I'Amerique." Doyle; "English Colonies in
Am." " Sable Island," Mag. of Am. Hist. Feb., 1886.

11. Lescarbot.

12. Heriot's Canada.

13. Miles, H. H. ; " Hist, of Canada under French Regime."

14. Warburton; " Conquest of Canada."

15. Hildreth; "Hist, of U. S.," Vol. i., p. 115.

16. Payne, E. J. ; " Voyages of Elizabethan Seamen."

17. Anspach's " Hist, of Newfoundland."
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19. Kohl, J. G. ; •' Hist, of Discovery of Maine."

20. Kirke ; quoting Domestic Corresp. of Elizabeth.

21. Oldys; Am. Annals.

22. " Letter of London Merchant to Friend at Tunbridge Wells."

23. Kirke; quoting Colonial Papers and Dom. Corresp. James T.

24. Babson, J. J. ; " Hist, of Gloucester." J. J. Rantoul ; " The

Cod in Mass. Hist." Field Papers of Essex Institute.

25. Minot; " Hist, of Mass. Bay."

26. Coll. Mass. Hist. Soc, V. 28, p. 98.

27. "Memoirs of Sir William Temple," Vol. i., p. 216.

85

86 References.

28. Rameau ; " La Fiance aux Colonies."

29. Kirke ; quoting Interregnum Book.

30. Doyle; p. 224. " Political Hist.," V. 3, p. 1374., ed. 1808.

31. " Actes, Memoirs," etc.; Freschot. " Diplomatisches Hand-

buch ; " Ghillany. " Entdeckungs Geschichte ; " V. Noorden.
" Memoirs de Torcy."

32. Collins; " Bolingbroke — An Historical Study."

Bolingbroke's Corresp.
^■^. Murdoch; " Hist, of Nova Scotia."*

34. Bollan's ; " Antient Right of Br. Nation to Am. Fisheries."

35. Auchmunty. " Importance of Cape Breton to Eng. Nation."

36. Life and Works of Franklin ; Sparks.

2;]. Wolcott's Journal in Coll. Conn. Hist. Soc, V. i., p. 156.

38. Corresp. of Duke of Bedford, V. i., p. xviii.

39. Bussy's "Private Memoir to Eng. Ministry."

40. New York Coll. of MSS., V. 10, p. 15. Smith's " Hist, of

Canada." Williamson's " Maine," V. 2, p. 216. Coll. Quebec
Hist. Soc. 1838, p. 82. Parkman; " Wolfe and Montcalm."

41. Marten's " Recueil de Traites."

42. Corresp. of Duke of Bedford, V. 3, pp. xvii — 121.

43. Kahn. Vol. i., p. 264.

44. Franklin's Letters. Pamphlet by W. (or E.) Burke.

45. Coll. Mass. Hist. Soc, 1801, p. 202.

46. Franklin's Examination before Com. of House of Commons.

47. Almon's " Remembrancer," and " Prior Documents."

48. W.Bradford. *' Biographical Notices." P. 229.

49. Marshall's "Am. Colonies," p. 355.

50. "Life of Patrick Henry;" Sparks. Sec. Journals of Cong.
^I. Diplomatic Corresp. of Revolution, ed. Sparks.

52. De Circourt; Fiske ; "Results of Cornwall's Surrender.''

Atlantic Moil. ^]2s\., 1886. Fitzmaurice ; " Life of Shelburne."
Jay's " Life of Jay." Private Corresp. of Franklin; W. T.
Franklin. " F'ranklin in France." E. E.Hale and E. E.
Hale, Jr. Life and Works of John Adams ; Adams. Lee ;
MS. Harvard University Library.

53. " Treaties and Conventions bet. U. S. and other Powers," 309-14.

" The Fisheries Dispute ;" Jay. " Diary of John Adams,"
V. 3, p. 333. " Rep. on the Questions," etc. Anglo-Am.
Association. 1S71.

Refcrc7iccs. 8 7

54. Journals of Cong. Austin's " Life of Gerry." Pitkin ;" Hist.

of U. S.," V. 2, p. 35, note. Bancroft; "Hist, of U. S.,"
Vol. 10, p. 177.

55. Harvey and Hatton ; " Newfoundland the Oldest Br. Colony."

Morris; "Fisheries of Newfoundland." "Newfoundland
Banks." Harper^ s M., V. 20, p. 45.

56. Murdock. " Hist, of Nova Scotia," V. 2, pp. 548-56.

57. Jones ; " Hist, of N. Y." ed. Delancy.

58. " Old Documents in Regard to Halifax." T. B. Atkins.

59. "Considerations on the Sovereignty of New Ireland;" Aitken ;

Phil. 1780.

60. Jefferson's Rep. ist. Cong., 2d. Session.

61. Benton's " Thirty Years' View." V. 2, p. 194.

62. Babson. Sabine.

63. Pari. Debates. Canning's Speeches. Ex. Doc. 100, July,

1S52.

64. Writings of Gallatin, ed. H. Adams, V. i., p. 645.

65. Br. and For. State Papers, V. 2, 1171.

66. Lyman; "Hist. Am. Diplomacy," Vol. i., p. 176. Trescott's

" Diplomacy of the Revolution."

67. Annual Register, 1783, p. 162.

68. De Circourt, Vol. 3. De Flassan ; '' Hist, de la Diplomatic

Francaise."

69. Heffter, Droit Int. Pub., §75. Wheaton; Pt. 2, § 177.

70. Schuyler's "Am. Diplomacy," p. 406.

71. Am. Law Review, V. 5, 426.

72. Woolsey; "Elements of Int. Law."

73. Letters and dispatches of Lord Castlereagh, V. 10, p. 431.

74. Writings of Gallatin, V. 2, p. 83.

75. Br. and For. State Papers, 7-162. " Memoirs of a Residence

at the Court of London," C. Rush.

76. Senator Tuck, quoted by Leggo. Scotiish Rro., Nov., 1886.

Annual Rep. Bureau of Statistics on Commerce, etc., 1885-6,
p. 908.

77. Writings of Gallatin, V. 2, p. 83. Gallatin's Rep. 8th Cong., ist.

Sess. Rush, 1-388.

78. North Am. Rev., Mar., 1886.

79. 59, George HI., c. 38.

80. Harper's Mag., V. 18, p. 674.

88 References.

8i. Rep. of Com. i8th Cong., 2d Sess., Ex. Doc. 100. Laws of
Nova Scotia, c. 10.

82. Revenue Laws of U. S. Kent's Comm. 1-311. Cranch Rep. 2,

187. Application of Br. Fisherman of Bahamas to U. S.
Gov., 1830.

83. Wheaton's " Elements of Int. Law," ed. Dana, p. 262.

84. Martin's " Nova Scotia and Cape Breton."
85- 30-31 » Victoria, c. 45.

86. Ridgeway ; Soule's speech, 1852.

87. Files of London Times, 1853-4.

88. Works of Daniel Webster, Vol. 2, p. 467.

89. "Reminiscences," Olyphant ; Blackwood's M., h.Vig,,\^^(i.

90. Am. State Pap., V. 4, p. 352. Harp. A/., V. g, p. 674. " Trea-

ties and Conventions," p. ^^2-

91. Am. State Pap. " Twenty Years in Congress," J. G. Blaine.

Derby's. Rep. on Reciprocity Treaty.

92. "Neutrality of Gr. Br. during Am. War." M. Bernard. Life

of W. H. Seward. Vol. 5.

93. " The Last Forty Years," J. C. Dent. N.Am. Review, Mar.,

1885. Canadian Year Books.

94. " Diplomatic Relations of U. S. Gov.," 1870, p. 407.

95. Halifax Chronicle. Cape Ann Advertiser.

96. Mr. Rose's Mission.

97. Br. Doc. 1878, Lxxx. R. D. Cutts'Rep. Baird's Rep. N. Am.

Rev.,V. 128, I. " Fisheries Award," 2d Ses. 45, Cong. 3 Vols..

98. Blake's Opinion. Blaine's " Twenty Years." Files of N. Y.

Herald, 1878. Nation, V. 26, pp. 175, 366, Vol. 27, pp. 278, 293.

99. Canadian Sessional Reports, Ottawa. Rep. of Dep. of Trade

and Fisheries. Trade and Naval Returns. Rep. on Fishery,
W. F. Whittaker. Ottawa, 1870. Proceedings of Royal Col-
onial Institute. Br. Fisheries Directory, 1884. " The Fisher-
ies;" C.F.Williams.

100. Dip. Rel. U. S. Gov. 1884-5-6.

loi. The Forum, Vol. 2, p. 2. Fortnightly JRev., Mar., 1887.

102. 49th Cong. 2d Sess. H. of Rep., rep. 4087.

103. J. W. Collins, in Century Mag., Oct., 1886. Science, Feb. 5,

1886. Westminster Rev., A^^r., 1886. Storer ; "Hist, of
Fisheries of Mass." Fisherman's " Memorial and Record
Book," Gloucester.

References. 89

104. U. S. Com. of Fish and Fisheries. Sec. i, Washington, 1884.

" Effect of Fishing Clauses of T. of Washington." H. Y. Hind.
Baird's Letters. Goode's Rep. Harper' s Mag., Vol. 9, p. 674 ;
Vol. 12, p. 50; Vol. 60, p. 284.

105. Letter of Sec. Manning to House Com. of For. Affairs, Feb.

S, 1887.

106. Case of " The Sisters," Sec. 17, act 85, 1886.

107. 49th Cong. 2d Ses., Ex. Doc. 153.

108. 49th Cong., 2d Ses., House of Rep. Repts., 3647-3648.

109. " An Act to authorize the Pres. to protect and defend the in-

terests of Am. fishing vessels," Public, 125, 1887.
no. Scottish Rezi.^dLXi^A^^-]. Fortnightly Rev., Mar., 1887. Com-
mercial Relations of U. S., Pt. 2, p. 629.

111. Spofford's Am. Almanack. Annual Rep. of Am. Fish Bu-

reau. Gloucester, Mass., 1887. Statement prepared for Treas.
Dep. 1887.

112. Idem.

113. Bradstreef s Reports, Jan. 29, 1887.

114. Natiott,Y€^. 3, 1887.

115. N. Y. Herald, Feb. i, 1887.

116. Rep. Bureau of Com. Statistics, Washington, 1886.

117. New Yorker Staats Zeitung, 22d Jan. 1887.

118. Letter of Sec. of Treas. quoted. House Rep. 49th Cong., 2d

Ses. 3647.

119. Bradstreef s, Jan. 8, 1887.

120. Bradstreef s, Aug. 28, 1886.

121. Hepworth's " Starboard and Port."

122. Rep. Am. Fish Bureau, p. 20.

123. Statutes at Large, Vol. 4, p. 817.

124. House Rep. 4687, p. 16.

125. Letter of the Pres. to Mr. Steele, Apr. 7, 1887.

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Charles Dickens.
William Makepeace Thackeray
Some Younger Writers.

Vol. III.— PEN PICTURES OF EARLIER VICTORIAN
AUTHORS.

Literary London in 1835.
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Benjamin Disraeli, Lord Beaconsfield.
Thomas Babington Macaulay.

3 vols., i6mo, beautifully printed and bound, in box

CONTENTS :

Charlotte Bronte.
Washington Irving.
Edgar Allan Poe.
Harriet Martineau.

$3 25

PEN PICTURES OF MODERN AUTHORS. Edited by
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upon laid paper. Cloth extra, gilt top, uncut edges . . . $2 50

"It cannot fail to awaken in the thoughtful reader a deeper interest in the writings
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NEW YORK AND LONDON.

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