THE

FISHERY QUESTION;

— OR

AMERICAN RIGHTS

IN

CANADIAN WATERS:

®

i

1^

— BY

WILLIAM HASTINGS KERR

ADVOCATE

MONTREAL :
PRINTED BY DANIEL ROSE, 431 NOTRE DAME STREET.

1868.

w

fip
9

Is

The EDITH and LORNE PIERCE
COLLECTION o/CANADIANA

Slueeris University at Kingston

in * >

THE

FISHERY QUESTION:

— OR

AMERICAN RIGHTS

— IN

OANADIAN WATERS:

BY —

WILLIAM HASTINGS KERR,

ADVOCATE.

■» »

MONTREAL :

PRINTED BY DANIEL ROSE, 431 NOTRE DAME STREET.

1868.

THE

FISHERY QUESTION.

Previous to the American Revolution, the inhabitants of the
British Colonies in North America exercised the right of fishing in
all the bays, harbors, creeks and rivers of the present Provinces of
Quebec, Ontario, New Brunswick, Nova Scotia, Prince Edward Island
and Newfoundland.

The treaty of 1783, by which the independence of the United
States was recognized, provided, amongst other things, that American
subjects should have the right of fishing on the Banks of Newfound-
land, along such coasts of the same Island as were used by British
Seamen, in the Gulf of St.. Lawrence, and on the coasts? bays, and
creeks of all other British dominions in North America : as well as
the right of drying and curing fish in any of the unsettled bays,
harbors, and creeks of Nova Scotia, the Magdalen Islands and Lab-
rador, so long as they should continue unsettled ; but not the right
of drying and curing on the Island of Newfoundland. (1)

After the War of 1812, the treaty of Ghent containing no provi-
sions respecting the fisheries, the British Government contended that
the treaty of 1783, by which alone the right of inshore fishing on the
coasts of the British North American Provinces had been granted,
had by the war of 1S12 been absolutely annulled, and that conse-
quently such right of inshore fishing no longer existed. On the part
of the United States Government, it was pretended that the rights
granted by that treaty were in their nature perpetual, and consequent-
ly were not affected by the breaking out of the war.

In 1818 a compromise was effected by convention, and it was
thereby agreed between the contracting parties ll that the inhabitants
of the said United States shall have, forever, in common with the
subjects of His Britannic Majesty, the liberty to take fish of every

(1) Vide Appendix No. 1

kind on that part of the southern coast of Newfoundland which ex-
tends from Oape Ray to the Ramean Islands on the Western and
Northern coast of Newfoundland, from the said Cape Ray to the
Quirpon Islands ; on the shores of the Magdalen Islands ; and also
on the coasts, bays, harbors, and creeks from Mount Joly on the
southern coast of Labrador to and through the Straits of Belleisle,
and thence northwardly indefinitely along the coast ; without preju-
dice, however, to any of the exclusive rights of the Hudson Bay
Company : and that the American fishermen shall also have liberty,
forever, to dry and cure fish in any of the unsettled bays, harbors,
and creeks of the southern part of the coast of Newfoundland here
above described, and of the coast of Labrador ; but so soon as the
same, or any portion thereof, shall be settled, it shall not be lawful for
the said fishermen to dry or cure fish at such portion so settled, with-
out previous agreement for such purpose with the inhabitants, pro-
prietors, or possessors of the ground. And the United States hereby
renounce forever any liberty heretofore enjoyed or claimed by the
inhabitants thereof to take, dry or cure fish on or within three marine
miles of any of the coasts, bays, creeks or harbors of His Britannic
Majesty's dominions in America, not included within the above men-
tioned limits. Provided, however, that the American fishermen shall
be admitted to enter such bays or harbors for the purpose of shelter
and of repairing damages therein, of purchasing wood, and of obtain-
ing water, and for no other purpose whatsoever. But they shall be
under such restrictions as may be necessary to prevent their taking,
drying or curing fish therein, or in any other manner whatever abus-
ing the privileges hereby reserved to them. "(2)

Discussions as to the interpretation of the Convention were entered
into as early as 1823 between the British and American Governments,
the. former claiming in favor of its subjects the exclusive right of fish-
ing not only in ihe bays on the coasts of Nova Scotia and New Bruns-
wick, and that portion of Canada to the south of the River and Gulf
of St. Lawrence, and to the westward of Mount Joly on the north,
but also within three miles of lines drawn from headland to headland
of all such bays, including specially those of Chaleur and Fundy.
The latter Government insisting that in those bays its fishermen had
a right to fish at any distance over three miles from the land. For-

„ , , , — 1 1 — i w — — . . < , , 1,

(2) Appendix No. 2.

tunately the Reciprocity Treaty, concluded in 1854, adjusted the dif-
ficulties which had arisen between the two Governments on the Fishery
question. By its first article it was agreed, " that in addition to the
liberty secured to the United States fishermen by the above named
convention of 161 8, of taking curing and drying fish on certain
coasts of British North American Colonies, therein defined, the in-
habitants of the United States shall have in common with the sub-
jects of Her Britannic Majesty, the liberty to take fish of every kind,
except shell fish, on the sea coasts and shores of those Colonies, and in
the bays, harbors, and creeks of Canada, New .Brunswick, Nova
Scotia, Prince ft d ward Island, and of the several islands thereunto
adjacent, without being restricted to any distance from the shore,
with permis>ion to land upon the coasts and shores of these Colonies
and the islands thereof, and also upon the Magdalen Islands, for the
purpose of drying their nets and curing their fish "

It was further provided by one of its articles, that the treaty should
■remain in force ten years from the date of its coming into operation,
and farther, until the expiration of twelve months after either of the
high contracting parties should give notice to the other of its wish to
terminate the same. (3)

The notice so required was given by the United States Government
and the Reciprocity Treaty terminated on the 17th March, 18b6.

So many different opinions have been expressed as to the rights of
American subjects to fish within three miles of the coasts of the
British North American Colonies, that it becomes necessary in the first
instance to inquire whether those rights are given by treaty, or whether
they spring from the principles of International Law alone.

The dominion over certain portions of the open sea has at different,
periods been claimed by several of the nations of the world. Spain,
Portugal, Holland and England have in turn, since the discovery of
America, endeavored to arrogate to themselves sovereign power over
portions of the sea, but nowadays it seems to be almost universally
admitted that the maritime territory of a State extends solely to the
distance of three marine miles seawards from its coasts. (4) Some

(3) Appendix No. 3.

(4) 1. Hautefeuille tit. 1, c. 3, § 1, p. 92. Laurence's Wheaton, pt. 2. c,
4, §6. Martens Precis 6, 4, c. 4, § 4 and 10, (three leagues according to-
him.) Heffter § 15. 1 Twiss § 172. 1 Azuni pt. 1, c. 2, § 15. Kluber §
129. Vattel § 289. 1 Phil. § 19.

6

difficulty, however, still exists on the subject, owing to the different
modes by which StntJS establish the line of their sea coasts. It is
admitted by all that the actual line of the shore, with its indentations,
bays, and promontories, cannot be followed without producing the
greatest confusion and doubt as to the limits of the maritime territory
of each State, and consequently straight lines running from headland
to headland of bays, not exceeding six miles in width, are taken as
the actual line of coast from which the three marine miles of marine
territory of the State to which the headlands belong are to be measured.
(5) If a bay exceed six miles at its entrance, with islets belonging
to the btate that owns the shore of the bay, either outside or
inside, at a distance of six marine miles or less from the headlands
and from each other, the bay is the property of the State to which
the headlands and the islets belong, and the boundary landwards of
its maritime territory, is the line drawn from headland to headland,
resting on the different islets, which give the greatest distance sea-
wards, within six miles of each other, or of one of the headlands,
the said line lying perfectly straight between each pair of its resting
places, and being also straight between each headland and its nearest
resting place. (6) Thus an island or islet lying off the coast of a
State at a distance of six miles or less, is considered as part of the land
territory of that State, and if another island lies at a distance of six
"miles or leas from the first, seawards, or in the entrance of a large
bay, such second island also forms part of the land territory of that
State, and such is the rule, no matter what may be the number of
dinks in the chain of Islands? so long as each island lies within six
miles of the coast, or of the neighboring islands in the chain.

The exclusive right of fishing within maritime territory belongs to
the State.- No person has any right, according to the principles of
'International Law, to fish within the maritime territory af any. coun-
try or State, but that of which he is* a subject. (7) Such right to

(5) 1 Hautefeuille supra. 1 Ortolan 158. I Azuni Part I, c. 2, § 1 7.
Laurence's Wlieaton supra.. Vattel § 291. 1 Phillimore § 199. • Abdy's

Kent, p. 11G.

(6) The Anna. 5 Eob. 385. 1 Ortolan Dip. de la Mer. p. 145.

(7) 1 Ortolan b. 2, c. 8, p. 161. 1 Cussy b. 1, t. 2, § 52, p. 129. 1 Raynsval
Institutions 1, 2, C. x. § 12. 1 Cauehy. p. 39. 1 Philimore ? 188. Lau-
rence's* Wheaton pt. 2, c. 4^8. Petrusheveez, art. 6.

fish within three miles then of the coast of one State by the subjects
of another, must be founded upon the provisions of lome treaty be-
tween such States in force at the time of such fishing. Consequently
it mast be regarded as clear law, that American subjects have no
right to fish within the maritime territory of the British North
American Colonies other than that conferred upon them either by the
Treaty of 1783 or the Convention of 1818.

It becomes necessary, owing to the peculiar ideas entertained in the
United States upon this question, to consider, in the first place, whe-
ther that portion of the Treaty of 1783 having reference to the
fisheries was put an end to by the breaking out of the War ot 1812
between Great Britain and the United States.

In the month of April, 1866, Mr. Raymond, in the United States
House of Representatives, introduced a report and resolution relative
to a proposition made some days previously to send armed ves-
sels to the fishing grounds adjacent to the British Provinces for the
protection of American fishermen. In the course of his remarks he
made use of the following expressions : "It will become a question
under what treaty we are now to enjoy the right of fishing on these
coasts. The British claim, that by the Treaty of 1814, the preceed-
ing Treaty of 1783 was annulled. I do not think that claim can be
maintained, but if it should be maintained, it seems to me equally
clear that the Treaty of 18I8 must have been annulled by the Treaty
of 1854. We are, therefore, thrown back either upon the original
admission of 1783, or if that was annulled by the Treaty of 1814,
then we are thrown back upon the rights which we enjoyed previous
to that time;'

It is hardly possible to suppose that any man occupying the posi-
tion of a member of the Committee on Foreign affairs of the United
States House of Representatives} could make such a public exhibition
of his ignorance of the elements of International Law as is apparent
to every one in the foregoing extract from Mr. Raymond's speech.
The first blunder apparent is, that he wishes to fasten upon the
British Government the reproach of pretending that the Treaty of
1783 was annulled by that of 1814. Such an untenable pretension
was never in fact advanced by that Government, for the Law Officers
of the Crown always enunciated the opinion, that the Treaty of 1783
had been annulled by the breaking out of the War of 1812, and that

opinion was based upon recognized principles of International Law,
viz., that all treaties, (save and except, perhaps, those made to govern
their conduct during war, or expressly made perpetual), concluded
between two States, expire on the breaking out of hostilities between
them. (8)

This principle, as applicable to the Treaty of 1783, is expressly
recognized by a recent American authority. (9)

Mr. Raymond then proceeds to argue, that if the Treaty of 18 14*
had the effect of annulling that of 1783, the Convention of 1818 was
annulled by the Treaty of 1854?. The error committed by him in
the first instance of confounding the effect of the War of 1812 with
that of the Treaty of 1814, here leads him into the greater absurdity
of stating that the Treaty of 1854, by which Great Britain conferred
on American subjects great privileges in addition to those enjoyed by
them under the provisions of the Convention of 1818, had the effect
of annulling that Convention, and then he caps the climax by saying
that by the expiration of the Treaty of 1854. the Americans are
thrown back upon that of 1783, if not annulled by that of 1818,
and if annulled, upon the rights they enjoyed previous to 1783. Now
it must be remarked, that in the Reciprocity Treaty, great care was
taken not to interfere with the provisions of the Convention of 1815,
so far as the rights of the Americans were concerned, the only portion
of the Convention which was temporarily suspended, was that in
which they renounced forever the right of inshore fishing off certain
portions of the coast of the British North American Colonies. The
Convention itself was in its nature perpetual. It set at rest forever,
the rights of the two contracting States. The Reciprocity Treaty
merely gave the Americans during its continuance the privilege of
fishing where, by the Convention of 1818, they had expressly forever
renounced the right to fish. Such privilege or permission, was based
upon such provision in the treaty ; it lasted so long as that treaty
lasted, and no longer, and when the treaty expired, the privilege' be-
came extinct, and the rights of the parties are those admitted and
granted by the Convention of 1818. It is unnecessary to enter into
the question of the rights of the Americans to fish within the limits

(8) Heffter § 99. L's Wheaton pt. 3, c. 2, § 9. Abdy's Kent, p. 420, 3
Phil. § 532 to 538.

(9) Woolsey § 55.

of the maritime territory of the British American Provinces previous
to the American Revolution, for up to that time the rights they so
enjoyed were based solely on the fact of their being British subjects.
Paving, by their successful rebellion, thrown oft' allegiance to the
British Crown, they lost the character of British subjects, and con-
sequently the basis of their 'fishing rights hav.ag been destroyed by
themselves, their previous right of fishing in the maritime territory of
the British dominions terminated. (10) Moreover, as already men-
tioned, the Convention of 1818 was in its nature a settlement of the
conflicting chums of the Government of Great Britain and the United
States* • •

The Convention of 1818. therefore, must be taken as the deed of
compromise by which alone the rights and privileges of American
subjects to fish within the maritime territory of the British North
American Provinces are to be measured and ascertained.

Under that Convention. American fishermen have no right to fish
within three marine miles of any of the coasts, bays, creeks, or har-
bors of Canada, on the whole of the south shore of the River and
Gulf of St. Lawrence, nor further to the west, on the north shore,
than Mount Joly, the exclusive rights of the Hudson's Bay Company
to the eastward and northward of that point being reserved. They
have the right to fish on the shores of the Magdalen Islands, and also
to dry and cure their fish on the now unsettled portion of the coast 0"!'
Labrador, and by agreement with the inhabitants, proprietors or pos-
sessors of the ground on any settled part of that coast. They have,
moreover, .the right of entering all bays and harbors of the Provinces
for the purpose of shelter, of repairing damages therein, of purchas-
ing wood, and of obtaining water.

With respect to Nova Scotia, New Brunswick and Prince Edward
Island, American fishermen have no right to fish within three marine
miles of any of the coasts, bays, harbors or creeks of those Provinces,
nor have they a right to dry or cure fish on any portion or portions of
their coasts.

They have no right to fish within three marine miles of the coast
of Newfoundland, save from Cape Ray to the Rameau Islands on the
southern, and from Cape Ray to the Quirpon Islands oh* the western
and northern coast, and they have the same rights and privileges of

(10) Phil, s :rj5-6.

10

drying and curing fish on the southern coast of the island, between!
Cape Kay and the Raineau Islands, as they have on the coast of
Labrador to the east of Mount Joly.

But though the intention of the governments contracting was to
avoid the possibility of any difficulty arising on the subject of the
rights of citizens of the United States to carry on fishing operations
within the maritime territory of the British Provinces, yet barely five
years had elapsed from the making of the Convention of J S IS, when
discussions took place as to the meaning of the word bays, therein
made use of. The American contended that the signification attached
to the word bv the greater number of the States of the civilized
world should be accepted as defining the bays included in the renun-
ciatory clause ; whilst, on the other hand, the British insisted, that
having from time immemorial claimed and possessed sovereign power
over all bays on the coasts of the dominions of the Crown in all parts
of the world, and the Govern uteut of the Uniied States having also
claimed and exercised such sovereign power over all the bays on the.
coasts of the United States, the extended meaning attached generally
by the two governments to the word •• b ly " should be held to be the one
intended in the convention to apply to that, word when used therein.

As already mentioned, the principle of International Law relied
upon by the American Government, as to the measurement of the
maritime territory seawards of a State, is pretty generally recognized,
and if it be not clearly shown that both Great Britain and the United
States have refused to admit that principle, and have in fact recog-
nized another by which bays of a greater width than six miles from
headland to headland are looked upon as included within the line of
eoast from which the maritime territory of the State to which the
headlands belong is to be measured seawards, but little difficulty should
be experienced in deciding against the pretensions of Great Britain.
If, on the other hand, the United States, and Great Britain, up to the
date of the Convention of 18 18, had attached such wider meaning to
the word " bay," the American claim must be pronounced unfounded.

A treaty, or convention between States, is but a contract subject to
the rules of interpretation applicable to contracts between individuals.
Custom in many instances exercises a controlling influence over a
contract, chano-ins the meaning of a word from one which it bears al-
most universally to another which is entirely different, and its influ-

11

€nce is allowed when it can be said that both parties must have used
the words in the sense attached to them by custom, and that each
party had good reason to believe that the other party so understood
them. (11)

Great Britain immemorially has claimed and exercised exclusive
property and jurisdiction over the bays or portions of sea cut off by
lines drawn from one promontory to another and called the King's
Chambers. (12) A similar property and jurisdiction is and has been
claimed by the United States over the Delaware Bay, and other bays
and estuaries forming portions of their territory. (13) Chancellor
Kent in his commentaries says : •' It is difficult to draw any precise or
determinate conclusion amidst the variety of opinions as to the dis-
tance to which a vv tate may lawfully extend its exclusive dominion
over the sea adjoining its territories, and beyond those portions of the
§ea which are embraced by harbors, gulfs, bays and estuaries, and
oyer which its jurisdiction unquestionably extends The execu-
tive authority of this country, in 1793, considered the whole of Dela-
ware Bay to be within our territorial jurisdiction ; and it rested its
claim upon those authorities which admit that gulfs, channels and arms
of the sea belong to the people with whose lands they aie encom-
passed." In 1806, the United States Government insisted that the
extent of neutral immunity, terms equivalent to maritime territory
should correspond with the cluims maintained by Great Britain
around her own territory, and that no beligerent right s ould be ex-
ercised within " the chambers formed by headlands, or anywhere at
sea within the distance of four leagues, or from a righ* line from one
headland to another.1' (13)

It is to be remembered also, that the United States have inherited
from Great Britain the principle now maintained in this aifair by the
latter State. The doctrine of bays, no matter of what size, being
subject to the territorial jurisdiction of the State owning the head-
lands and shores was fully admitted in Great Britain previous to the

(11) 2 Parsons on Con., pp. 55 and 56. Gorrissen vs. Perrin, 2, C. B. N.
S. 681. Vattel pref. p. lxv. § 26. 2 Phillimore § 73. Heftier § 94, 95-
Petrushevecz art. 68, 69. 12 Phil. § 73.

(12) 1 Phillimore § 199. Heffter § 76. Abdy's Kent p. 114.

(13) L's Wheaton, pt. 2, c. 4, § 7. 1 Attys Gen. op. p. 33. 1 Kent p 30,
(15) 1 Kent p. 30.

12

American devolution, and as all the other principles of International
Law recoguized by the mother country at that time were adopted, bj
the Americans after the recognition of their independence, is it not
the only deduction that can be drawn from the history of the two
nations, their diplomatic correspondence, and the opinions of their
jurists, that in the Convention of 1818, the word " bay" was used,
not in the restricted sense recently applied to it by other States, but
as applying to all indentations in the coasts of the British North
American Provinces, denominated as, or known under the designation
of bays ?

The bays, with respect to which difficulties, judging from the past,
may be expected to arise, are those of Fundy and Chaleur. The Bay
of Fundy mav, perhaps, be regarded as open throughout its whole
extent to within three miles of lines drawn from headland to head-
land of bays, not exceeding six. miles in width, and resting upon
islands, belonging to New Brunswick, as hereinbefore set out, to
the fishing opera' ions of American vessels. The umpire to
whom had been referred the <|\iestion of the coudemnatien of an Am-
erican fishing vessel, captured whilst fishing in that bay. held, ;'that
the Bay of Fundy was not a British bay. nor a bay within the mean-
ing of the words used in the Treaties of 178H and 1818." (16)

The decision of the umpire in that case was accepted by the Gov-
ernment of Great Britain, and the award of damages paid. Great
Britain's right to claim that bay as a portion of the maritime terri-
tory of the Province of New Brunswick was, in fact, the question
Submitted for decision, and the ruling of the umpire in favor of the
American pretension has the force of a precedent so far as the Bay of
Fundy is concerned. But it is to be remembered that one of the
headlands of that Bay belongs to the State of Maine, and the award
cannot be held to apply to the Bay of Chaieur, inasmuch as the ques-
tion submitted had no reference to the proprietorship of the latter
bay, (17) and as both its headlands belong to British North
America.

With the single exception then of the Bay of Fundy, American
vessels have no right whatsoever to fish within three miles of the line
stretching from headland to headland of the bays on the coast of Brit-

(16) L's Wheaton, pt. 2, C. 4, § 8, n. 106.

(17) 3 Phil. § 3. Vattel, b. 2, § 329.

13

ish North America, within the limits hereinbefore pet out. — iheir
rights are strictly defined by the Convention of 1818, and must be
confined within ihe limits therein specially mentioned. The general
rules of International Law, the provisions of the Treaty of 1783,
and the privileges extended to them by that of 1854^. cannot be in-
voked in order to liberate them from the terms of the compromise of
1818, construed and interpreted according to the then established
custom and usage of the British and American Governments.

Another question which has been frequently raised in connection
with the fisheries, is the right of Great Britain to close the Gut of
Canso against American vessels.

The Gut of Canso is a a strait in British North America, dividing
Cape Breton from Nova Scotia and forming a secure and much fre-
quented passage from the Atlantic into the Gulf of St. Lawrence; it
is about twenty-one miles long and varying from one mile to one
mile and a half broad." (18)

Taking it for granted that it forms a part of the maritime territory
of Canada, still being a means of communication formed by nature
between the Atlantic Ocean aud the Gulf of St. Lawrence, both,
portions of the common property of the nations of the world, it
follows as a consequence, that the right of peaceable passage exists in
favor of vessels of every nationality. The right being one based on
the principles of International Law and exercised independently of
Great Britain, that* power cannot prevent the passage of United
States vessels through that Strait. (19)

Writers on International Law are divided in opinion upon the sub-
ject, but the greater number espouse the side of the question opposed
to the pretentions of Great Britain. Moreover, the general principles
of law, and the current of modern opinion as expressed in Treaties,
clearly indicate the fallacy of the idea that the right of peaceable
passage does not exist in favor of foreign vessels through the Gut of
Canso.

(18) Imperial Gazetteer.

(19) Abdy's Kent, p. 116. Laurence's Wb.ea.ton, pt. 2, c. 4 § 9. 1 Haute-
feuille, pp 97 & 99. 1 Phillimore § 178. 1 Cauchy, p. 42. 1 Cussy, b. 1,
tit. 2, § 41. 1 Azuni, pt. 1, c. 3, art. 2 § 1. 1 Ortolan, b. 2, c. 8, p. 146,
Vattel, b. 1, c. 23, § 292. Rayneval b. 2, c. 9, § 7. Heffter § 33, 76. Petrua-
chevecz, art. 9.

Contra— 1 Twiss, § 174. Kluber, § 130. Martens Precis, pp. 171-168.

APPENDIX.

No. 1.

The definitive Treaty of Peace and Friendship between his Brit-
annic Majesty, and the United States of America; signed at Paris,
the 3d of September, 1783.

Art. III. — It is agreed, that the people of the United States shall
continue to enjoy, unmolested, the right to take fish of every kind on
the Grand Bank, and on all the other banks of Newfoundland : also
in the Gulph of St. Lawrence, and at all other places in the sea
where the inhabitants of both countries used at any time heretofore
to fish. And also that the inhabitants of the United States .shall
have liberty to take fish of every kind on such part of the coast of
Newfoundland as British fishermen shall use, (but not to dry or cure
the same on that island,) and also on the coasts, bays, and creeks of
all other of his Britannick Majesty's dominions in America ; and that
the American fishermen shall have liberty to dry and cure fish in any
of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen
Islands, and Labrador, so long as the same shall remain unsettled ;
but so soon as the same, or either of them, shall be settled, it shall
not be lawful for the said fishermen to dry or cure fish at such settle-
ment without a previous agreement for that purpose with the inhabit-
ants, proprietors, or possessors of the ground.

No. 2.

Convention between Great Britain and the United States, signed
at London, October 20, 1818.

Art. I. — 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, harbours, and creeks, of His
Britannic Majesty's Dominions in America, it is agreed between the
high contracting parties, that the inhabitants of the said United
States, shall have, forever, in common with the subjects of His Brit-
annic Majesty, the liberty to take fish of every kind, on that part of

15

the southern coast of Newfoundland, which extends from Cape Ray
to the Ramean Islands, on the western and northern coast of New-
foundland, from the said Cape Kay to the Quirpon Islands, on the
shores of ihe Magdalen Islands, and also on the coasts, bays, har-
bours and creeks, from Mount- Joly, on the southern shore of Labra-
dor, to and through the Straights of Belleisle, and thence northwardly
indefinitely along the coast, without prejudice, however, to any of the
exclusive rights of the Hudson's Bay Company : and that the Am-
erican fishermen shall also have liberty, for ever, to dry and cure fish
in any of the unsettled bays, harbours, and creeks, of the southern
part of the coast of Newfoundland hereabove described, and of the
coast of Labrador ; but so soon as the same, or any portion thereof,
shall be settled, it shall not be lawful for the said fishermen to dry or
cure fish at such portion so settled, without previous agreement for
such purpose, with the inhabitants, proprietors, or possessors of the
ground. And the United States hereby renounce forever, any liberty
heretofore enjoyed or claimed by the inhabitants thereof, to take, dry,
or cure fish on or within three marine miles of any of the coasts,
bays, creeks or harbours of His Britannic Majesty's Dominions in
America, not included within the above mentioned limits ; provided,
however, that the American fishermen shall be admitted to enter such
bays or harbours, for the purpose of shelter and of repairing dam-
ages therein, of purchasing wood, and of obtaining water, and for no
other purpose whatever. But they shall be under such restrictions
as may be necessary to prevent their takiug, drying, or curing fish
therein, or in any other manner whatever abusing the privileges here-
by reserved to them. — Hertsltt Treaties, Vol. 11.

No. 3.

Treaty between Great Britain and the United States, relative to
Fisheries, Commerce, and Navigation, signed at Washington, June 5,
1854:

Art. I. — Tt is agreed by the High Contracting Parties, that in
addition to the liberty secured to the United States fishermen by the
above mentioned Convention of October 20, 1818, of taking, curing,
and drying fish on certain coasts of the British North American Col-
onies therein defined, the inhabitants of the United States shall have,
in common with the subjects of Her Britannic Majesty, the liberty to

16

take fish of every kind, except shell-fish, on the sea-coasis and shores,
and in the bays, harbours, and creeks of Canada, New Brunswick,
Nova Scotia, Prince Kd ward's Island, and of the several islands there-
unto adjacent, without being restricted to any distance from the shore :
with permission to land upon the coasts and shores of those Colonies
and the islands thereof, and also upon the Magdalen Islands, for the
purpose of drying their nets and curing their fish : provided that in
so doing they do not interfere with the rights of private properly, or
with British fishermen in the peaceable use of any part of the said
«oast in their occupancy for the same purpose.

It is understood that the above mentioned liberty applies solely to
the sea fishery, and that the salmon and shad fisheries, and all fisher-
ies in rivers, and the mouths of rivers, are hereby reserved exclusively
for British fishermen. — Hertslet Treaties, Vol. IX.

No. 4.

The inshore fisheries of a country are the heritage of the inhabit-
ants of its coasts, sufficient in nearly every instance to provide them
with all the necessaries of life ; but like all other supplies vouchsafed
by nature to man, if a system of over cropping be persevered in, the'
water, like the land, becomes barren. .

Mackerel have been driven ofF the coasts of the United States by
over-fishing, and their vessels are now forced to seek in Canadian
waters the fish which their own maritime territory no longer affords
them. For many years past, from four to five hundred American
vessels per season fish in the Gulf of St. Lawrence aud tire Bay of
Fundy. Their take is equal to three-fourths of the whole Cod and
Mackerel fishery of the United States, and is valued at $12,000,000.
It must be remembered, moreover, that they fish almost exclusively
withiu three miles of the Canadian coast.

(See Year Book of Canada , 1868, p. 90. Letter from Secretary
of Treasury in answer to Resolution of House of Representatives of
7th February, 1868. Ex. Doc. 240, pp. 12 and 13.)

The United States Tariff imposes a duty of $2 0) a barrel upon
foreign caught fi^h. Last year the license fee levied by our Govern-
ment upon United States vessels fishing in Canadian waters was fifty
cents a ton. This year the fee is to be $2.00 per ton. Last year
the tonnage >f*such ves bing in Canadian waters was estimated

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at 19,000 tons; supposing that the same vessels this year fish in our
waters, we shall for the paltry sum of $38,000 allow them to take
$12,000,000 worth of our property. In other words, we levy on our
fish, caught and exported by American vessels, a duty of $1.25 on
every £100 worth.

Can it be wondered at that our fishermen starve. Shut out from
the markets of the United States, overwhelmed by the numbers and
wealth of the foreigners, who monopolize their fishing grounds, seeing
year by year fish becoming scarcer, and they themselves becoming
poorer and poorer, is it too much to say that ere long their patience
will be exhausted, and that they will ask for that protection elsewhere
which here alas has never been extended to them.

Verily the people of the New England States are justified in laugh-
ing at our folly. For a mess of pottage we consent to sell our birth-
right, and allow our neighbors to reap the harvest placed by Provi-
dence ripe for the sickle at our doors.