coast fishery rights, the Grand Banks and outer waters being admitted to be free to all nations. America, however, advanced a claim to inshore fishing, and the difficulty was adjusted in this wise: American subjects were granted (1) The liberty to fish on equal terms with British subjects on the southwest coast of Newfoundland, and also to land on the unsettled portions of the seaboard and dry their catch. (2) The liberty to fish on the west coast of Newfoundland, from Cape Ray to Cape Norman, but without the right to land and dry their fish. (3) The liberty to fish on the shores of the Magdalen Islands and (4) The liberty to fish on the coast of Labrador from Anticosti eastward and northward indefinitely and to land and dry the catch, this latter concession further containing the proviso that they could fish in the bays and harbors and creeks, whereas with regard to Newfoundland the proviso simply was that they could fish on the coast." 66 (5) The liberty to enter the other parts of the coast of Newfoundland and Canada to secure shelter, effect repairs, purchase wood, and obtain water, but for no other purpose whatever. THE THREE-MILE RESTRICTION In return for these concessions the United States renounced forever the right to fish within three marine miles of the coast of British North America, not included in the above, and agreed to be subject to such restrictions as might be necessary to prevent their abusing the privileges hereby reserved to them. Fundy, in Nova Scotia, Baie des Chaleurs, in Quebec, and Fortune Bay, in Newfoundland. Many difficulties and conflicts ensued, American vessels were seized almost every year, and many of them were confiscated for flagrant violations. CONCESSIONS TO THE FRENCH In considering the whole treaty question it is important to remember that, beginning at Cape St. John, the northern extremity of Nôtre Dame Bay, on the northeast coast of Newfoundland, passing northward to Belle Isle Strait and thence southward along the west coast of Cape Ray, the French already enjoyed a right of fishing in the coastwise waters and of landing and drying their catch on the seaboard, with a further proviso embodied in a declaration attached to the Treaty of Versailles, that British subjects were not to interfere with the French by their competition; in other words, making the French the predominant partner in the fisheries of that region. That this fact was recognized by the British and American negotiators of the treaty of 1818 is evident from their having phrased the concession to American subjects in that treaty as merely a concession to fish in the inshore waters of the west coast, but without any landing privilege such as was granted to them on the southwest coast, where the French had no rights. The difficulties between Britain and France in regard to the region were not terminated until six years ago, when, in return for concessions in Morocco and West Africa, France agreed to abandon her claims to a lodgment on Newfoundland's western seaboard, and the few French fishing stations thereon were purchased by the British Government, France contenting herself with retaining the right to fish on the coastwise waters of the "French Shore," but without any right to land on the shore for any purpose. THE ANGLO-FRANCO-AMERICAN SITUATION The effect of this treaty was that the Americans surrendered the inshore fisheries, except on certain coasts, and secured an unrestricted enjoyment of the deep-sea fisheries. It might be supposed that this would have put an end to all friction and promoted amity and good-wil! between the subjects of the two nations. But it did not. Within a year or two arose the famous “headland dis- The situation to-day with regard to this pute," namely: Should the line,-three ma- territory is that on the northeast coast of rine miles off,-follow the sinuosities of the Newfoundland, from Cape St. John up to coast and be drawn across the mouths of the Cape Norman, British and French subjects bays where they are six miles wide, or should have the right to fish within the three-mile it be drawn from headland to headland, bar- limit, but British subjects alone have a right ring out foreigners from all inclosed "terri- to dry their catch on the shore; on the west torial" water, large or small? The British coast, from Cape Norman south to Cape Ray, authorities, in Canada and Newfoundland, British subjects, French subjects, and Ameriadopted the "headline" doctrine and ex- can subjects, all three have the right to fish in cluded the Americans from even the Bay of the coastwise waters, but only British subjects possess landing and drying rights; on the southwest coast, from Cape Ray east to Ramea Islands, British subjects and American subjects possess the right to fish, and the British subjects possess the further right to land and dry their catch anywhere on the seaboard, while American subjects are restricted in the exercise of this landing and drying privilege to the unsettled portions of this coast alone, which practically means that they are denied any access to the seaboard whatever, because it is all inhabited and because the present method of the conduct of the American fisheries in these northern waters makes the concession valueless to them. FRICTION BETWEEN THE UNITED STATES Strait, both of which belong to Newfoundland, as they do on the west coast of Newfoundland and on the eastern section of Labrador, which belongs to her. Besides this, the presence of valuable food fishes in the Bay of Fundy and along the east coast of Nova Scotia has always proved an irresistible temptation to American fishing vessels to invade the three-mile limit and fish in the coastwise waters of the Dominion, where they have no treaty right to do so. As a consequence difficulties have from time to time arisen which have called for special agreements to cope with them. THE RECIPROCITY OF 1854-'66 The first of these was the "Elgin-Marcy,' or reciprocity treaty of 1854. This arrangement granted United States fishermen unrestricted access to British North American waters and shores to catch and cure fish, while United States waters and shores, north of latitude 36, were thrown open to Canadian and Newfoundland fishermen on the same terms. The American fishermen thus obtained the right to purchase bait and other supplies; to land and transship fish; to use 54 52 BELLE ISLE Where British and French subjects have fishing rights. CAPE ST JOHN NOTRE DAME BAY WFOUNDLAND CARE RAY Where British and American subjects have fishing rights. 60 CAPE BRETON ISLAND 58 。° RAMEA IS. FORTUNE BAY MIQUELON I 56 54 THE FISHING GROUNDS OF NEWFOUNDLAND (Showing the present legal treaty rights of British, French, and American fishermen) the bays and harbors; to prepare, clean, pack, and dry fish, and to enjoy sundry commercial privileges. It being admitted that these concessions were of greater value than those the British subjects could enjoy in American waters, the United States granted free entry to its markets for many of the products of the British North American colonies. This treaty worked very advantageously to both parties, but the United States abrogated it in 1866 at the expiry of the twelve years for which it was originally negotiated. THE HALIFAX AWARD OF 1877 It had effectually disposed of all pending difficulties, allayed friction between the two countries, and promoted a marked improvement in their trade, and its abrogation revived all the unwelcome drawbacks to national Washington in 1888. Like its two predecomity. The situation was soon em- cessors, it provided for fisheries reciprocity bittered by a renewal of the conflicts of the between the United States on the one hand previous non-reciprocity period, and within and Canada and Newfoundland on the other, five years a new treaty had to be negotiated, but it was for no stipulated period, going into in 1871, known as the "Thornton-Fish," or effect automatically on the United States re"Washington" treaty. This dealt with sev- moving the duty from fish and fish-oils and eral features of commerce and navigation, as being nullified on her reviving these duties. well as the fisheries issue, but it is with the It also permitted United States fishing vessels latter only that we are now concerned. The entering Canada or Newfoundland waters fishery articles" revived those of the 1854 for shelter or repairs, to unload, reload, transtreaty, and the Americans offered free entry ship, or sell their cargoes, and to replento United States markets for coal, salt, fish, ish their outfits. It further provided for the and lumber, for a period of twelve years from appointment of a mixed commission to delimit the first of July, 1874, in return for access the bays on the coastline regarding which the to the British North American markets. United States by the treaty of 1818 reThis offer was rejected, and then the United nounced its fishing rights. The details agreed States agreed to an arbitration, to fix the sum, upon were such as to exclude the Americans if any, which the United States should pay from all bays ten miles wide at their mouth, for the use of these fisheries during the period and from certain specified ones from fifteen in question. This arbitration was held at to twenty miles wide. Halifax, Nova Scotia, in 1877, when Sir A. T. Galt represented Great Britain, Hon. E. H. Kellogg represented the United States, and M. Maurice Delfosse, Belgian Minister at Washington, was umpire. It awarded Canada and Newfoundland $5,500,000, of which subsequently, by arrangement between themselves, Canada took four-fifths and Newfoundland the remainder. NEWFOUNDLAND SEEKS A SEPARATE The fishery clauses of this treaty were abrogated by the United States in 1886, on the expiry of the twelve-year period, and immediately the old-time troubles were renewed. The seizure of American vessels threatened serious international difficulties, and propositions for yet another treaty were exchanged by the two nations. Newfoundland, now awakened to a realization of her own special advantages as a baiting and outfitting center, opened negotiations for a separate fisheries arrangement with the United States in 1887, when Ambassador Phelps intimated to Sir Ambrose Shea, then Newfoundland's delegate in London, that his government would cordially consider such a proposal. But the imperial cabinet declined to sanction the project for an independent compact for Newfoundland then, as plans were maturing for a reciprocity treaty including Canada as well. THE CHAMBERLAIN-BAYARD TREATY This instrument, known as the "Chamberlain-Bayard" treaty, was negotiated at The United States Senate of the day being republican, and hostile to President Cleveland, rejected this treaty, but the plenipotentiaries, to prevent the prospect of a friction while the treaty was under discussion, had arranged a modus vivendi whereby the United States fishing vessels could, for two years, enter Canadian and Newfoundland waters and, by payment of an annual license fee of $1.50 per ship-ton, purchase bait and all supplies and outfits, transship their catch, and hire men for their crews. NEWFOUNDLAND AND CANADA AT ODDS Following upon the rejection of this draft treaty Newfoundland opened negotiations with Washington for a reciprocal fishery arrangement, and what has since become known as the Bond-Blaine Convention was concluded. It provided for the free admission. of Newfoundland fish and crude minerals to the United States, in return for which American fishermen were to be granted free access to baiting and transshipping and other facilities in Newfoundland. Canada, not having been made a party to this arrangement, protested against the British Government ratifying it, on the ground that Canada being a sister colony and her people fellow-colonists having the same right to the enjoyment of the Newfoundland fisheries as the people of that colony, the latter could not barter away these advantages for concessions for her own people alone. The British Government thereupon. decided to "pigeon-hole" the Bond-Blaine Convention for the time being, in order to give Canada an opportunity to effect a similar arrangement; and this decision provoked a tariff war for a period between the two colonies, as Newfoundland bitterly resented Canada's action. Peace was, however, eventually restored, but for twelve years this Bond-Blaine compact lay moribund. During all this period the modus vivendi of 1888 was continued by Newfoundland because she was hopeful of securing a reciprocal arrangement, and by Canada because she entertained similar hopes. "Pilgrimages to Washington" were made by various Canadian statesmen, and in 1898 an International Joint High Commission, headed by Lord Coleridge on the British side, and containing representatives of Canada and Newfound land, and headed on the American side by Senator Fairbanks, wrestled with the problem at Quebec and at Washington, but with no result. Not until 1902 did Canada withdraw her embargo against the Newfoundland Convention, having by this time realized that any arrangement of a similar character for herself was impossible and, it may also have been, determining to make no more pilgrimages" in quest of reciprocity. The mother colony, being now at liberty to assent to Newfoundland's endeavor to make a new arrangement, if it could succeed in so doing, the then Premier of the island negotiated the "Bond-Hay treaty" on the lines of the convention of 1890, but this instrument was I amended to death by the American Senate when it came before that body in December of 1904 for ratification. The temporary arrangement, or modus vivendi, it may be explained here, is continued by Canada to the present day, but in the Newfoundland legislature in the session of 1905, following upon the action of the American Senate in stifling the Bond-Hay convention, Premier Bond introduced a measure to abrogate it and to give effect to a new policy with regard to American fishermen and their operations in colonial waters. He determined upon their absolute exclusion from all intercourse with the sections of the coast where they possessed no treaty rights and the limitation of them on the coast where they did possess such liberties strictly to the letter of the treaty as interpreted by him, which interpretation of the convention of 1818 he maintained was the correct one. THE WINTER HERRING FISHERY,—AMERICAN SHIPS The whole difficulty which is now being dealt with at The Hague arises from the prosecution by the Americans of the so-called. winter herring fishery on the west or treaty coast of Newfoundland, primarily at Bay of Islands and secondarily at Bonne Bay, some twenty miles north. This fishery begins in October and lasts until the freezing of the inlets compels the vessels to leave. In the early part of the season, before frosts set in, the herrings are salted in bulk in the holds of the vessels, but later they are frozen by being exposed on platforms on the shore or above the yessels' decks and when thoroughly congealed are thrown into the holds in the same way. These herrings, whether salted or frozen, are admitted into the United States free of duty when they are brought there in American bottoms, but when carried in British vessels are required to pay a heavy duty. The theory underlying their free entry when carried in American bottoms is that they are the produce of the American fisheries, but, as a matter of fact, they are not, strictly speaking, taken by the American vessels or their crews at all. The practice for fifty years past has been for American vessels to visit the coast and purchase cargoes of these herrings from resident fishermen, who actually caught them and sold them to the American crafts as a matter of ordinary commerce. It would not pay American vessels to bring to the coast the number of men required to procure cargoes for them, or the appliances,boats, nets, and other gear, necessary in carrying on the fishery, and the trading, rather than the fishing venture, proved mutually advantageous, for the Americans bought the fish at favorable terms and sold them in their home market, while the Newfoundlanders secured a ready cash equivalent for the fruits of their labor from day to day, the industry being worth to the colonists about $250,000 annually for many years past. DIFFERENCES BETWEEN THE UNITED STATES AND NEWFOUNDLAND Premier Bond's new enactment forbade the sale of bait fishes,-herrings being largely used as bait,-to Americans, forbade American vessels to ship crews in Newfoundland waters, and forbade local fishermen to engage on board such vessels. But the augmenting of the crews of the American vessels in this fashion was secured in that year by an evasion of the law, local fishermen going three miles from the coast, boarding American vessels there and then returning into territorial waters as members of the crews, having signed the ships' articles while beyond the three-mile limit. In 1906 Premier Bond introduced another bill forbidding colonists to leave territorial waters for any such purpose and imposing confiscation on American vessels found in Colonial waters with any persons on board not inhabitants of the United States; but the imperial government refused approval to this measure, while American fishermen, on their part, declined to enter at the Colonial custom-houses, to pay light dues, to abstain from fishing on Sundays, or to be bound by Colonial laws prohibiting the use of destructive fishing instruments known as purse seines; and the American State Department forwarded vigorous messages of protest to the imperial government against the unfriendly attitude of the Newfoundland ministry, demanding, moreover, that United States subjects be protected in the exercise of the treaty rights granted to them in 1818 and repudiating vigorously Premier Bond's construction of this instrument. order to actively support Sir Robert Bond's contentions with regard to the verbiage of the treaty of 1818, and soon afterwards it was announced that a reference of the whole question to the Hague Tribunal had been decided upon by the several parties interested, Canada agreeing to enter into the arbitration with Newfoundland, though the issue was not an acute one between that colony and the American Republic. Accordingly the necessary steps were taken to provide for the constitution of the arbitral tribunal, the preparation of the respective cases, and the submission of the whole matter to the adjudication of the eminent jurists who have been selected to pronounce upon the issues in dispute.* The Meanwhile Sir Edward Morris, who had been Sir Robert Bond's first lieutenant and the Attorney-General in his cabinet, had broken from him, and having assumed the leadership of the opposition party in Newfoundland decisively defeated the Bond administration in the two spectacular general elections which As a result of this embroilment the British occurred here, the first in November, 1908, Government passed an imperial rescript under when each side carried eighteen seats, and a Georgian statute enacted by the British the second in May, 1909, when Morris carParliament in 1819 to provide for the carry- ried twenty-six and Bond only ten. ing out of the treaty of 1818, which rescript championing of Newfoundland's case thus over-rode the Colonial enactment and the fell to Sir Edward Morris. enforcement of the existing Colonial fishery laws by the Colonial ministry and placed the settlement of all questions arising between Colonial and American fishermen in the hands of the British naval commodore on the station. A modus vivendi was likewise arranged between the two governments without reference to Newfoundland whereby the status quo ante was continued for that sea son. The Bond ministry bitterly protested against this procedure as a virtual abrogation of the colony's charter of self-government, but the imperial cabinet proposed an amicable. adjustment of the matter if possible. THE MATTER REFERRED TO THE HAGUE At the imperial conference at London in 1907 Sir Robert Bond raised this question in the hope of securing a declaration from the premiers of the other self-governing colonies in support of his views, but as the discussion on the matter was a secret one nothing is known with certainty as to what occurred. It is surmised, however, that the then Secretary for the Colonies, Lord Elgin, made it clear that the imperial government was not prepared to risk any rupture of the existing friendly relations with the United States in POINTS TO BE DECIDED The questions involved are varied and important. The liberties conferred by the treaty of 1818 were ceded to the "inhabitants of the United States. The first point to be decided is what is meant by the word "inhabitants." Can vessels flying the American flag employ fishermen not. alone residing in the United States, but who may be shipped in Canadian ports or on the high seas off the Newfoundland seaboard, beyond *The arbitrators who will deal with the matter at The Hague are Professor Lammasch (Austria), Dr. Drago (Argentina), Johnheer Lohman (Nether lands), Sir Charles FitzPatrick (Great Britain), and Judge George Gray (United States). The counsel in the case, on behalf of the United agent: Hon. Elihu Root. Senator from New York: Hon. George Turner. of Spokane, Wash., former partment: Hon. Dr. James Brown Scott, Solicitor of the State De Charles B. Warren, of Detroit, ert Finly, K.C., former Attorney-General for Eng- of Canada W. N. Tilley, of Canada: Hon. Sir Winter. K.C., former AttorneyGeneral of Newfoundland, and Hon. D. Morison, K.C., Attorney-General of Newfoundland. |