The question of the fisheries has been in dispute between Great Britain
and the United States for more than seventy years. During that period
it has been marked by constantly recurring, and sometimes heated,
controversy; and it will continue to be a source of irritation until
the two Government can reach a solution which shall prove satisfactory,
not only to the negotiators, but to the class of brave and
adventurous men who, under both flags, are engaged in the sea-fisheries.
For a long period each recurring season brought its series of
complaints, often threatening violence between the fishermen,
and tending to bring the two Governments into actual collision. An
adjustment was effected by the Reciprocity Treaty of 1854 and again by
the Treaty of Washington in 1871, but for so brief a time under each
agreement as only to postpone the difficulty and not to settle it.
There is a right and a wrong side to this questions, and either the
Government of the United States or the Government of England is to
blame for the chronic contention which marks it.
The American case can be briefly stated. When the independence of the
Colonies was recognized in the preliminary treaty of 1782 the
provisions agreed upon in regard to two subjects were held by both
Governments to be final and perpetual. One was the territory embraced
within the boundaries conceded to the United States: the other was the
right to the fisheries. The people of the Colonies, especially the
people of the New-England Colonies, had as British subjects used all
the British fisheries in what is now known as the Dominion of Canada
and the island of Newfoundland; and in the preliminary treaty to which
George III. gave his assent in 1782, as well as in the final and more
definite treaty of 1783, it was provided that the privilege should
continue to be enjoyed by citizens of the new Republic.(1) No doubt of
the intent and proper construction of this clause in both treaties had
ever been suggested, until the English and American negotiators were
engaged in framing the treaty of peace at Ghent in 1814, at the close
of the second war with Great Britain. The British negotiators claimed
that the war of 1812 had put an end to all existing treaties, and that,
the fishery clause in the treaty of 1782 being no longer in force, our
fishery rights had expired, and if revived at all must be revived under
new stipulations.
The direct purpose of this movement was obvious. By the treaty of
1782 it was declared that "the navigation of the Mississippi River
from its source to the ocean shall forever remain free and open to the
subjects of Great Britain and to the citizens of the United States."
It was at that time assumed that the boundary line between the
territory of British America and the United States, as set forth in the
treaty of peace, would at a certain point cross the Mississippi River,
and that the navigation of that river would thus be secured to the
subjects of his Britannic Majesty. But his was soon ascertained to
be an error, and to that end that the line might be determined with
precision the Jay treaty of 1794 provided for a joint survey. By the
time of the negotiation of the Treaty of Ghent, twenty years later, it
was definitely ascertained that the northern boundary of the United
States ran above the sources of the Mississippi, while the purchase
of Louisiana had given to our Government the control of the mouth of
the river. Hence the privilege of navigating the Mississippi (so
earnestly desired by the British Government) could not be insisted on,
since the river from its source to the sea was wholly within the
territory of the United States. If, therefore, our fishery rights were
void by the abrogation of the fishery clause of the treaty of 1792,
the restoration of those rights could be demanded only in exchange for
some equivalent; and the equivalent to be asked, as was well known,
would be the concession to Great Britain of the free navigation of the
Mississippi River.
The position thus taken by the British Government was plainly
untenable. The treaty of 1782 was only the formal declaration of
certain facts consequent upon the termination of the Revolutionary
war. That treaty recognized three conditions as fully established:
I. The independence of the thirteen Colonies. II. The territorial
limits of the United States. III. The rights and methods of the
common fisheries in Colonial waters which the citizens of the United
States had exercised as British subjects.--The history of the
negotiation and the explicit language of the treaty prove that the
clause touching the fisheries was the recognition of an _existing_
right and not the grant of a _new_ right. The British Government, in
1814, might with equal force and justice have claimed that under this
theory of the abrogation of the treaty of 1782 by war, the recognition
of our independence and the establishment of our boundaries had also
become void. It is a rather curious fact, apparently unknown or
unnoticed by the negotiators of 1814, that as late as 1768 the law
officers of the Crown under the last Ministry of Lord Chatham (to whom
was referred the treaty of 1686 with France, containing certain
stipulations in reference to the Newfoundland fisheries) gave as their
opinion that such clauses were permanent in their character, and that
so far the treaty was valid, notwithstanding subsequent war. The
American negotiators of course refused to admit the principle (that the
war of 1812 had put an end to any provision of the treaty of 1782) or
its application; and the result was that the Treaty of Ghent was signed
and ratified, without any provisions either as to the Fisheries or the
navigation of the Mississippi River,--a position which left the United
States in the full exercise of its rights under the treaty of 1782,
from which it could be excluded only by the exercise of force on the
part of the British Government. There was no danger of force being
applied. The war of 1812 had satisfied Great Britain that she could
gain nothing by going to war with the United States.
Within four years of this time a treaty was negotiated and ratified,
which is altogether the most inexplicable in our diplomatic history.
The war just concluded with Great Britain had reflected the highest
honor upon our navy; while on land we had demonstrated, if not the
absolute impossibility, certainly the serious difficulty and danger,
of an invasion of our soil by any foreign power. We had risen greatly
in the estimation of the world as to our capacity for war, and we had
learned the especial importance of maintaining the fisheries as the
nursery of our sailors. The State Department was under the direction
of John Quincy Adams, who, above all statesmen of his day, was supposed
to appreciate the value of the fisheries and who had stubbornly
refused at Ghent to consent to any diminution of our fishing-rights
even if the alternative should be the continuation of the war. Yet
on the 20th of October, 1818, a treaty was concluded at London,
containing as its first and most important provision an absolute
surrender of some of our most valuable rights in the fisheries. The
negotiation was conducted by Albert Gallatin and Richard Rush, men of
established reputation for diplomatic ability and patriotic zeal. The
history of the transaction is meagre. A brief and most unsatisfactory
correspondence contains all that we know in regard to it. Neither in
the minute and important diary of Mr. Adams, nor in the private
letters, as published, of Mr. Gallatin and Mr. Rush, is there the
slightest indication of any reason for recommending, or any necessity
for conceding, the treaty.
By reference to the Third Article of the treaty of 1782, already
quoted, it will be seen that the rights of the citizens of the United
States were recognized; _first_, to take fish of every kind on the
Great Bank, and on all the other banks of Newfoundland, and also in the
Gulf of St. Lawrence, and at other places in the sea _where the
inhabitants of both countries used at any time before the treaty to
fish; second_, to take fish of every kind on such part of the coast
of Newfoundland as British fishermen should use, but not to dry or cure
the same on that island; _third_, to take fish of every kind on the
coasts, bays, and creeks of all other of his Britannic Majesty's
dominions in America; _fourth_, to dry and cure fish in any of the
unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands,
and Labrador. By the provisions of the First Article of the treaty of
1818, the right to take fish on the coast of Newfoundland and Labrador
was limited to certain portions of the coast, _without prejudice,
however, to any of the exclusive rights of the Hudson Bay Company;
second_, the right to dry and cure fish was granted on the limited
portions of the coast of Newfoundland and Labrador, so long as they
remained unsettled; _third_, for this privilege of drying and curing
fish, the United States "_renounced forever_ and liberty theretofore
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 limits so described." Of this extraordinary
renunciation Mr. Rush wrote, many years after: "We [Mr. Gallatin and
himself] inserted the clause of renunciation; the British
plenipotentiaries did not desire it."
From the execution of this treaty--as might well have been seen--the
misunderstanding between the two countries in relation to the fisheries
became more and more complicated. The treaty seems to have considered
only the cod-fishing, and even from that point of view we paid an
enormous price for the poor privilege of drying fish on the
Newfoundland coast, by abandoning the right of mackerel fishing within
three marine miles of all other coasts of his Britannic Majesty's
dominions in America; for from that time the mackerel fisheries grew
into large proportions, and without regard to treaty provisions the
right of cod-fishing on the banks could never have been taken from us.
The difficulty of determining the three-mile line, the presence of
armed vessels to prevent its violation, the vexatious seizure of
American fishing-vessels, the reckless injustice of the British local
courts in their condemnations, constantly exasperated both parties, and
on several occasions threatened to bring the two Governments into
actual collision. Both countries recognized the necessity of a more
definite settlement; and in June, 1854, after thirty-six years of
continuous disturbance and danger, Mr. Marcy as Secretary of State,
and Lord Elgin, Governor-General of Canada, as plenipotentiary for
Great Britain, negotiated what is known as the Reciprocity Treaty. It
was hoped that the opportunity would be used to settle this question
permanently, or at least to secure and understanding that we should not
upon the termination of a temporary arrangement be relegated to the
irritating injustice of the treaty of 1818. But the wary diplomatists
of England, with sarcasm scarcely concealed, had so phrased the opening
clause of the Reciprocity treaty as to make its provisions only
"_additional to the liberty secured to the United States fishermen by
the Convention of 1818_."
The right in the fisheries conceded by the treaty of 1854(2)--originally
ours under the treaty of 1782, and unnecessarily and unwisely renounced
in the treaty of 1818--was not given freely but in consideration
of a great price. That price was reciprocity of trade (so-called)
between the United States and the British North American Provinces
in certain commodities named in the treaty. The selection as
shown by the schedule was made almost wholly to favor Canadian
interests. There was scarcely a product on the list which could be
exported from the United states to Canada without loss, while the great
market of the United States was thrown open to Canada without tax or
charge for nearly every thing which she could produce and export. All
her raw materials were admitted free, while our manufactures were all
charged with heavy duty, the market being reserved for English
merchants. The fishery question had been adroitly used to secure from
the United States an agreement which was one-sided, vexatious, and
unprofitable. It had served its purpose admirably as a makeweight for
Canada in acquiring the most generous and profitable market she ever
enjoyed for her products. And yet Canadians seemed honestly to
believe that they had conceded to us more on the sea than we had
conceded to them on the land.(3)
The treaty of 1854 was to continue for ten years, with the right of
termination upon twelve months' notice by either party. It was
terminated on the 17th of March, 1866, upon notice given by the
United States one year before. By the abrogation of this treaty our
fishery rights were again, through our own unwise concession, subjected
to the provisions of the treaty of 1818. But Canada gained little by
this relegation, while she suffered great loss in consequence of being
deprived of her free access to the markets of the United States for
all her products of forest, field and sea.
During the existence of the Reciprocity Treaty the enterprise and
capital of the American fishing industry had in some degree developed
mackerel fishing, while a free market in the United States had
encouraged the inshore fishing of the British dominions to a great and
profitable extent. Perhaps at this time the British fishermen placed
an exaggerated estimate upon the three-mile fisheries, while the
American fishermen followed the privilege rather as a convenience and
as an exemption from this annoyance and expense of seizure and
trial, than as having any very large intrinsic value.
When the Joint High Commissioners proceeded to consider the question of
the fisheries three different views were manifest. The British
Commissioners desired a restoration of the Reciprocity Treaty, to which
the American Commissioners replied that such a concession was
impossible. During the discussion to which this refusal led, the
American Commissioners declared that the value of these inshore
fisheries had been largely over-estimated, and that the United-States
Government desired to secure their enjoyment, not for their commercial
or intrinsic value, but for the purpose of removing a source of
dissension. They intimated that $1,000,000 was the largest sum which
they would be disposed to offer for the full and permanent use of
the inshore fisheries without the addition of any privilege as to the
free admission of fish and fish-oil. The British Commissioners
considered this to be an entirely inadequate estimate of the value of
the fisheries and found insuperable difficulties in the way of an
absolute and permanent transfer of the rights.
After prolonged consideration and discussion the American Commissioners
finally declared that they were "willing (subject to the action of
Congress) to concede the admission of Canadian fish and fish-oil free
of duty as an equivalent for the use of the inshore fisheries, and to
make the arrangement for a term of years." They were firmly and
intelligently of the opinion that free fish and free oil to the
Canadian fishermen would be more than an equivalent for these
fisheries; but they were also willing to agree upon a reference to
determine that question and the amount of money-payment that might be
found necessary to complete the equivalent--it being understood that
the action of Congress would be needed before any payment could be
made. This proposition was referred by the British Commissioners to
their Government, was accepted by cable, and was at once embodied in
the treaty. These articles adopted the language of the Reciprocity
Treaty of 1854, recognizing, as it might again be claimed by the
British Government, the existence and full force of the Convention of
1818. The Commission then provided for the freedom from duty of
Colonial fish and fish-oil, granted reciprocity of inside fisheries
to British fishermen, and finally provided that the question of
compensation should be referred to three Commissioners.(4)
It would not be just to impute carelessness to the American members of
the Joint High Commission in framing the articles of the treaty
relating to the fisheries. It is quite evident however that they had
not closely studied the question, and had allowed the British
Commissioners to gain an advantage. It was a mistake to agree to a new
confirmation of the treaty of 1818, apparently establishing it as the
basis of all our rights and giving to it the authoritative position
which the treaty of 1782 originally held and should have continued to
hold on this question. We might not be able to annul the treaty of
1818, but it was not wise to forfeit, by the assent of so imposing a
body as the Joint High Commission, our right of protest against the
injustice of its provisions and to agree practically to the assertion
that our fishing-rights began in 1818. But a much graver blunder was
committed. Our Commissioners had very justly maintained that the
admission of Canadian fish and fish-oil free of duty into the United
States would be more than an equivalent for the fishery rights to be
conceded by the British Government. They had also maintained that for
a concession of those rights in perpetuity the Government of the United
States would not be willing to pay more than $1,000,000. Holding these
views, believing as they did that we were giving more than we were
gaining, the Commissioners nevertheless consented to a reference to
determine _how much in addition we should pay to Great Britain_. The
agreement certainly should have been to ascertain to which party, if
either, a money consideration should be paid. Still further, if they
were willing to imply in advance that a money consideration might be
due to Great Britain and not to the United States, a maximum limit
should have been inserted in the treaty beyond which the American
Government would not be willing that any award should extend. But
by practically conceded, in the first place, that money should be paid
to Great Britain, and by leaving the Reference to determine the
amount without any limit whatever, they offered a great temptation to
wrong dealing, against which the United States had reserved no defense
and could secure no redress.
Of the three Commissioners referred to in the Article providing for an
arbitration, the treaty directed that one should be appointed by the
President of the United States, one by Her Brittanic Majesty, and the
third by the President and Her Brittanic Majesty conjointly; and if
they could not agree upon the third within a period of three months
after the Article should take effect, then "the third Commissioner
shall be named by the representative at London of his Majesty the
Emperor of Austria and King of Hungary." The legislation necessary
to give the Fishery Articles of the treaty full effect having been
completed in 1873, Acting Secretary of State J. C. Bancroft Davis, on
the 7th of July in that year, notified the British Minister at
Washington, Sir Edward Thornton, that in regard to the third
Commissioner "the Government of the United States is willing to take
the initiative and suggest to her Majesty's Government the names of
a number of persons, each one of whom would be in the opinion of the
President be influenced only by a desire to do justice between the
parties." He then proposed (for the consideration of the British
Government) the names of the Mexican Minister, the Russian Minister,
the Brazilian Minister, the Spanish Minister, the French Minister,
and the Minister of the Netherlands, residing at that time in
Washington. Mr. David advised Sir Edward that they had "omitted the
names of those Ministers who have not the necessary familiarity with
the English language," and also of those who "_by reason of the
peculiar political connection of their governments with Great Britain
would probably esteem themselves disqualified for the position._"
Sir Edward Thornton, being absent from Washington, did not receive the
note of Mr. Davis until the 11th of July, when (as he advised him on
the 16th) he immediately telegraphed the substance of it to Lord
Granville, and dispatched a copy by mail. Five weeks later, on the
19th of August, without any intervening correspondence Sir Edward
(writing from the Catskills) recalled to Secretary Fish that he had
spoken to him when last in Washington "on the subject of the Belgian
Minister, Mr. Delfosse, being a suitable person as third Commissioner
on the Commission which is to sit at Halifax. . . . I had hoped
[wrote Sir Edward] that he would have been agreeable to your
Government, until I spoke to you upon the subject. I subsequently
received a telegram from Lord Granville, desiring me to ascertain
whether Mr. Delfosse would be agreeable to the Government of the
United States as third Commissioner. . . . _Lord Granville desired me
to ask you in his name that you would consent to the appointment of
the Belgian Minister_, who, as he believes, would be in all respects
a suitable person for the position."
Mr. Fish was utterly astounded by this proposition submitted by Sir
Edward Thornton and coming almost as a personal and pressing request
from Lord Granville. The one Minister who was regarded as especially
disqualified by Mr. Maurice Delfosse, the representative of Belgium at
Washington. The disqualification did not convey a personal reflection
upon that gentleman, but was based upon the relations of his government
to the Government of Great Britain. The Kingdom of Belgium owed its
origin to the armed interposition of Great Britain, and its
continuance, to her friendship and her favor. Its first monarch
Leopold, who had been but five years dead when the Treaty of
Washington was negotiated, had married the Princess Charlotte, daughter
of the Price-Regent of England; he was brother to Queen Victoria's
mother, and to Prince Albert's father; he held the rank of Marshal in
the British Army, and had been for a long period in receipt of an
annual allowance of fifty thousand pounds from the British Exchequer.
He was on terms of the most affectionate friendship with the Queen and
was her constant and confidential adviser.
His son and successor Leopold II., the reigning monarch, cousin of
Queen Victoria, had married an Austrian princess, and the unfortunate
Carlotta, widow the Emperor Maximilian, was his sister. The House of
Hapsburg associated the American support of the Mexican President
Juarez with the death of Maximilian, and might not be well disposed
towards the Government of the United States. It was not therefore an
altogether happy circumstance that the Austrian Ambassador in London
had been designated as the person to choose a third Commissioner, in
the event of the British and American Governments failing to agree in
his selection. A sense of honest dealing at the outset had plainly
suggested the ineligibility of a Belgian subject to the third
Commissionership, and suggested also the impropriety of leaving to the
Austrian Ambassador in London the selection of the Commissioner. The
narrative will show that the British Government had determined upon the
one or the other, and in the end accomplished both.
The reply of Mr. Fish to Sir Edward's extraordinary communication of
August 19 was prompt and pointed. In a note of August 21 he
courteously affected to believe that a grave mistake had occurred in
the transmission of Lord Granville's telegram. He could not believe
that Lord Granville, advised of the inability of the Government of
the United States to assent to the selection of Mr. Delfosse, would
deliberately propose that gentleman. Mr. Fish was sure that there had
been "some mis-conveyance of information or instruction, for which the
telegraph must have been responsible." He reminded Sir Edward that
in an interview with him in Washington he (Mr. Fish) had declared that
"while entertaining a high personal regard for the character and
abilities of the Belgian Minister to his country, there are reasons in
the political relations between his government and that of Great
Britain why the representative of the former could not be regarded as
an independent and indifferent arbitrator on questions between the
Government of her Majesty and the United States." Mr. Fish still
further reminded Sir Edward that during the session of the Joint High
Commission, when the question of referring the Fishery dispute to the
head of some foreign State was under discussion, Earl de Grey, chairman
of the British Commissioners, in proposing several powers, voluntarily
said to the American Commissioners, "_I do not name Belgium or
Portugal, because Great Britain has treaty arrangements with them that
might be supposed to incapacitate them_."
Five days later Sir Edward advised Mr. Fish that "as the matters which
are to be considered by the Commission deeply concern the people of
Canada, it was necessary to consult the Government of the Dominion
upon the point of so much importance as the appointment of a third
Commissioner; and some delay was therefore unavoidable. . . . I have
now [continued Sir Edward] the honor to inform you that her Majesty's
Government has received a communication from the Governor-General of
Canada (Lord Dufferin) to the effect that the Government of the
Dominion strongly _objects to the appointment of any of the foreign
Ministers residing at Washington as third Commissioner on the above
mentioned Commission_, and prefers to resort to the alternative
provided by the treaty; namely, to leave the nomination to the Austrian
Ambassador at London."
The State Department was justified by this time in considering that the
British Government was resorting to devices for delay. Circumstances
all pointed in that direction. The Government of the United States
had submitted the names of six Ministers, representing countries of
which at least four held more intimate relations with Great Britain
than with the United States. Specific reasons had been given for not
mentioning others. After a totally unreasonable delay (from July 11
to August 19) the English Government responded, _proposing the very
name that had originally been objected to by the United States--proposing
it with the urgency of a personal request from Lord Granville_. When
it was found that our Government would not accept Mr. Delfosse, the
intelligence came within a week that the Canadian Government objected
to any foreign Minister, who had been residing in Washington, as third
Commissioner. Of course this objection excluded Mr. Delfosse with all
the others, for Mr. Delfosse had resided in Washington several years
longer than the majority of those who had been proposed by the United
States.
Mr. Fish very justly and sharply rebuked this interposition of the
Government of Canada. On September 6 he wrote to Sir Edward that "the
reference to the people of the Dominion of Canada seems to imply a
practical transfer to that Province of the right of nomination which
the treaty gives to her Majesty." He informed Sir Edward that "in the
opinion of the President, a refusal on his part to make a nomination,
or to concur in the conjoint nomination contemplated by the treaty, on
the ground that some local interest (that for instance of the
fishermen of Gloucester) objected to the primary mode of filling the
commission intended by the treaty, might well be regarded by her
Majesty's Government as a departure from the letter and spirit of the
treaty." Mr. Fish went still farther: "In the President's opinion,
such a course on his party might justify the British Government in
remonstrating, and possibly in hesitating as to its future relations
to the Commission." The rebuke was not too severe, because if the
matter was to be left to the judgment of the people of Canada, it
would have been far wiser to remand the negotiation originally to
the authorities of the Dominion, with whom the United States could
probably have come to an agreement much more readily than with the
Imperial Government.
On the 24th of September Sir Edward advised Mr. Fish that he was
instructed by Earl Granville to propose that "the Ministers of the
United States and of her Majesty, at the Hague, should be authorized
to see if they could not agree upon some Dutch gentleman to act as
third Commissioner, who would be acceptable to both Governments." Mr.
Fish replied to Sir Edward, two days later, that in regard to the plan
of selecting "some Dutch gentleman," through the American and English
Ministers at the Hague, he was directed by the President to say that
such mode of appointment "varies from the provisions of the treaty,
which has received the Constitutional assent of the Senate. The
President, therefore, does not feel himself at liberty to entertain
a proposition which would require the conclusion of a new treaty in
Constitutional form before the proposition could be assented to by the
United States." Mr. Fish added, with a justifiable brusqueness not
often found in his diplomatic correspondence, that "it is deeply to be
regretted that _her Majesty's Government has made no effort to comply
with that provision of the Twenty-third Article of the Treaty, whereby
it was agreed that the third Commissioner should be named by the
President of the United States and her Brittanic Majesty conjointly_."
A reply came from Sir Edward on the 1st of October. To Mr. Fish's
charge that no effort had been made on the part of her Majesty's
Government, he answered by reminding him that he had proposed Mr.
Delfosse, and also "some Dutch gentleman" to be agreed upon by the
Ministers of England and the United States at the Hague. Mr. Fish
replied on the 3d of October, in a somewhat caustic review of the
entire correspondence, in which he clearly proved that "the effort of
this Government to carry into execution the provisions of the
Twenty-third Article of the treaty have hitherto failed _from no
fault or negligence on its part_." He closed his note by renewing the
statement that "the President earnestly hopes that the two Governments
will yet agree upon a third Commissioner, and to that end is willing
to waive the question of the time within which the joint nomination
should be made."
After protracted correspondence Sir Edward advised Mr. Fish that her
Majesty's Government considered that the three months having expired,
the appointment of the third Commissioner rested with the
representative in London of the Emperor of Austria and King of Hungary.
Mr. Fish argued to the contrary in a dispatch of October 25th. He
was unable to perceive that any right of nomination had passed beyond
the control of the two Governments, and still entertained the hope that
an effort might be made by her Majesty's Government to agree upon a
third Commissioner, in the spirit of the treaty and with the
concurrent appointment of the two Governments. Sir Edward replied, on
December 2, as instructed by Lord Granville, that "her Majesty's
Government, concurring with the Law Officers of the Crown, thinks the
Article is explicit as to the appointment of the third Commissioner
being left to the Austrian representative in London if not made within
a certain date," and added: "Her Majesty's Government, therefore,
consider that the Government of the Dominion of Canada might complain
if the nomination were not made as provided for by the treaty; and that
if the arbitrator were to give a decision unfavorable to Canada great
discontent might arise in consequence in the colony." Earl Granville,
therefore, asked that the two Governments might agree upon an "identic
note to be addressed to the Austrian Government by the representatives
of the United States and Great Britain, requesting that the Austrian
embassador at London may be authorized to proceed with the nomination
of the third Commissioner."
Having by this dilatory if not tortuous process thrown the choice of
the third Commissioner into the hands of the Austrian Ambassador at
London, the British Government evidently felt that it had won a great
advantage. If that Government had reason to fear the influence of
any foreign Minister residing at Washington,--unless he should be one
representing a country dependent upon British power for its origin and
existence,--it assuredly could not doubt that an Austrian Ambassador,
residing in London, instinctively hostile to a Republican government,
and cherishing a special grievance against the United States, would
lean to the English side of any question submitted to arbitration.
Beyond these considerations came the social influences in the richest
capital of the world--all favorable to England, all hostile to the
United States. Apparently believing that the United States would
shrink from presenting the case of the fisheries to a commission in
which Great Britain had so manifest an advantage, that Government
proposed (before the Commission could sit) to open negotiations looking
to a renewal of the Reciprocity Treaty between Canada and the United
States. The British authorities had in their own hands, as they
naturally supposed, a strong leverage, by which our Government could
be coerced, as it had been in 1854, into reciprocity of trade upon
other products. It was to be a series of moral coercions, either
accomplished or attempted. Coerced into accepting Mr. Delfosse as
third Commissioner, we were now to be coerced into a commercial treaty
for the benefit of Canada in order to escape the possible award on
the fisheries.
What the British Government desired was substantially a renewal of
the Reciprocity treaty of 1854,--fishery clauses included. That treaty
had expired in 1866; and to aid in securing its renewal a highly
intelligent special Commissioner, Mr. Rothery, was now sent to
Washington to aid the British Legation in negotiating such a
convention. Success was more easily attained with the Executive
department of our Government than with the Legislative. A treaty of
reciprocity was agreed upon between Mr. Fish and Sir Edward Thornton,
and duly transmitted to the Senate. If ratified by that body, it
would still be incomplete until the consent of the House should be
obtained. But it was rejected by the Senate on the 3d of February,
1875; and the two Governments were left to renew the arrangements for
the Fishery Commission, which by agreement had not been affected by
the postponement resulting from the negotiations for reciprocity.
Various delays hindered the agreement between the two Governments upon
an identic note to be addressed to the Austrian Government, requesting
the appointment of the third Commissioner by the representative of
that Government in London; and it was not accomplished until the
winter of 1876-77. Mr. Fish realized by that time that he no longer
had the power to prevent the selection of Mr. Delfosse, and that his
selection, made against open and avowed opposition, might be especially
detrimental to the interests of the United States. Mr. Fish realized
also that Count von Beust, the Austrian Ambassador, might select some
one even more objectionable than Mr. Delfosse, if that were possible;
and he therefore thought it expedient to withdraw his personal
objections to that gentleman, and agree to that which he could not
change or avert. Upon intimations to that effect Count von Beust
named Mr. Delfosse as the third Commissioner. The Canadian Government,
whose interests and influence in the matter had been apparently
consulted by Lord Granville at every step, and which had been
represented as objecting to the appointment of _any Minister accredited
to Washington_, gladly approved the selection of Mr. Delfosse, although
he was and had been for many years "a Minister accredited to
Washington."
The record of this case, as thus shown by the official correspondence,
is not creditable to the English Government. If in an arbitration
between private persons, either of them should make palpable and
avowed effort to secure a particular man--connected with him by kinship
and business interests--he would be considered as acting unfairly, the
common judgment of the people would condemn him, and the tribunal to
which the award was rendered would unhesitatingly set it aside as
vitiated, upon proof that advantage had been secured in the selection
of the Arbitrators. The English Government would no doubt fall back
for its defense upon the acquiescence which was ultimately and
reluctantly extorted from Secretary Fish. But the official
correspondence shows that Mr. Fish resisted and protested as long as he
had power to resist and protest, and consented when his consent was
only a form of courtesy to the gentleman whose appointment had been
predetermined by the British Government. It might have been wiser,
perhaps, for Mr. Fish to continue his protest to the last, and leave
to the British Government no shadow of excuse for its extraordinary
and unjustifiable course.
The Fishery Commission met at Halifax, N. S., in the summer of 1877.
Sir Alexander T. Galt was the British Commissioner, Honorable Ensign
H. Kellogg of Massachusetts was the United-States Commissioner, and
Mr. Delfosse was the third. The agent of the British Government was
Sir Richard Ford, a member of the British Diplomatic Corps; and the
agent of the United-States Government was Honorable Dwight Foster,
formerly a judge of the Massachusetts Supreme Court. The British case
was represented by five able members of the Colonial Bar, four of
whom were Queen's counsel.--Sir W. V. Whiteway of Newfoundland; L. C.
Davies, Premier of Prince Edward's Island; J. Doutre of Montreal; C.
J. Weatherby of the Province of Nova Scotia; S. R. Thompson of New
Brunswick. The American case was represented by the agent, Judge
Foster, Richard H. Dana of Massachusetts, and William Henry Trescot of
South Carolina, American Secretary of Legation in London under the
Presidency of Mr. Fillmore, and Assistant Secretary of State during
the Administration of Mr. Buchanan.
The case was elaborately prepared and ably argued on both sides.
Reduced to its most simple statement, the contention of the United
States Government was this: that the duty of the Commission was
limited; that it was charged with the decision of no political or
diplomatic questions; that all such questions had been determined by
the high contracting parties in signing the treaty of Washington; and
that this Commission was simply a reference for an accounting in a
given department of trade. They contended that the value of the
inshore fisheries was simply their value as mackerel fisheries; that
to estimate one-fourth of the whole mackerel-catch as taken by American
fishermen was a liberal, even an extravagant concession on the part of
the United States; and that the remission of duty on Colonial fish and
fish-oil, which was admitted to be worth $350,000 per annum to the
Dominion of Canada, was an ample equivalent.
In presenting the British case every consideration was put forward by
the clever men who represented it, to magnify the concession made to
the United States. They dwelt at great length upon the thousands of
miles of coast thrown open to Americans; upon the fabulous wealth of
the fisheries, where every one caught had, like the fish of the miracle
in Scripture, a bit of money in its mouth; upon the fact that the
chief resource and variety of fishing lay within the three-mile limit.
They managed to obscure the real issue by great masses of confused
statistics, and caused the sparsely settled provinces to appear as
granting an extraordinary privilege to American fishermen, in allowing
their nets to be dried and their fish to be cured on the sands and
rocks of their remote and uninhabited coasts.
After the respective cases had been stated and all the evidence and
arguments heard it was found that the difference of opinion between the
British and the United-States Commissioners were irreconcilable. The
decision was therefore left to Mr. Delfosse--as was anticipated from
the first. He estimated the superior advantage of the privilege of
the inshore Colonial fisheries, over such as were given to British
subjects in American waters, at $5,500,000 for their twelve years'
use. The result of the negotiation, therefore, was that for twelve
years' use of the inshore British Colonial fisheries which were ours
absolutely by the treaty of 1782, we paid to the British Government
the award of $5,500,000, and remitted duties to the amount of $350,000
per annum (for the period of twelve years, $4,200,000), besides
building up into a profitable and prosperous industry the shore-fishing
of Prince Edward's Island, which before the Reciprocity Treaty was
not even deemed worthy of computation.
The award was made on the 23d of November, 1877. It produced profound
astonishment throughout the United States, accompanied by no small
degree of indignation. Rumors in regard to the mode of Mr. Delfosse's
appointment became frequent during the ensuing winter; and on the 11th
of March, 1878, Mr. Blaine of Maine submitted a resolution in the
Senate, requesting the President, if not incompatible with the
interests of the public service, to transmit the correspondence which
preceded the selection of Mr. Delfosse as third Commissioner. It was
promptly given to the Senate and to the public, and increased to a
great degree the popular dissatisfaction with the result. For the
first time Mr. Delfosse became acquainted with the serious objections
made by the Government of the United States to his appointment. It is
probably that if his government had been advised of the facts Mr.
Delfosse would never have been subjected to the embarrassment and
mortification of serving on the Commission.
In transmitting to Congress the papers relating to the award, on the
17th of May (1878), President Hayes recommended the "appropriation
of the necessary sum, _with such discretion in the Executive
Government, in regard to the payment, as in the wisdom of Congress the
public interests may seem to require_." The whole matter was referred
to the Committee on Foreign Relations, and on the 28th of May the
chairman of the Committee, Hon. Hannibal Hamlin, made an elaborate
report, reviewing the history of the transaction in a very thorough
and impartial manner. He also submitted a resolution, declaring that
"the views and recommendations embraced in the report of the Senate
Committee of Foreign Relations, touching the award made by the
Fishery Commission at Halifax, are hereby approved." The Committee,
at the same time, reported a bill appropriating five and a half
millions for the payment of the award.
The report of the Committee recommended that "the President of the
United State should be authorized to pay the award, if, after
correspondence with the Government of Great Britain, he shall, without
further communication with Congress, deem that such payment shall
be demanded by the honor and good faith of the Nation; and if in
pursuance of that conclusion the award shall be paid, the President
shall, as soon as may be convenient thereafter, lay the correspondence
with the British Government relating thereto before Congress." Mr.
Hamlin pointed out in his report the possibility that "the Halifax
Commission had proceeded _ultra vires_ and taken into consideration
certain elements not fairly in the case submitted." "When the King of
the Netherlands," said the report, "was selected as umpire in 1827 to
settle the North-eastern Boundary dispute between Great Britain and the
United States, his award was set aside on the plain and justifiable
ground stated by Mr. Clay, then Secretary of State, that his Majesty
had recommended a mode of settlement outside of the facts and terms of
submission." Had Mr. Delfosse and Mr. Galt proceeded in a similar
manner?
Attention was called by Mr. Hamlin to the fact that the award was made
only by two Commissioners, the third dissenting. In the two other
Commissions organized under the Treaty of Washington it was
specifically provided that a majority of the Commissioners should
decide, but in constituting the Fishery Commission no such provision
was made. What was the fair inference? Redmond on arbitration and
awards, Francis Russell, and other eminent English authorities, lay
down the doctrine that "on a reference to several arbitrators, with
no provision that less than _all_ shall make an award, each must act,
and _all_ must act together; and every stage of the proceedings must
be in the presence of all, and the award must be signed by all at the
same time." The _London Times_, July 6, 1877, just before the
Commission was organized at Halifax, had asserted that "on every point
that comes before the Fishery Commission for decision, the unanimous
consent of all its members is, by the terms of the treaty, necessary
before an authoritative verdict can be given." And Mr. Blake, the
Minister of Justice for Canada, had declared in 1875 that "the amount
of compensation we shall receive must be the amount unanimously agreed
upon by the Commissioners."
Mr. Hamlin, representing the Committee on Foreign Relations, was
careful not to put the United States in the attitude of repudiating
the award. "However much," said the report, "we may regard the award
made at Halifax as excessively exorbitant and possibly beyond the
legal and proper power of those making it, your Committee would not
recommend that the Government of the United States disregard it, _if
the Government of her Britannic Majesty, after a full review of all the
facts and circumstances of the case, shall conclude and declare the
award to be lawfully and honorably due_." It was aptly added that
"the intelligence and virtue of British statesmen cannot fail to
suggest that arbitration can only be retained as a fixed mode of
adjusting international disputes by demonstrating its efficiency as a
methods of securing mutual justice and thus assuring that mutual
consent without which award and verdicts are powerful only for mischief."
To the resolution approving the report made by Mr. Hamlin, Mr. Edmunds
offered an amendment, declaring that "Articles XVIII. and XXI. of the
treaty between the United States and Great Britain, concluded on the
8th of May, 1871 (remitting the duties on fish and fish-oil), ought to
be terminated at the earliest period consistent with the provisions
of Article XXXIII. of the same treaty (providing that the remission
should be for ten years)." A brief debate ensued and the resolution,
with Mr. Edmund's amendment, was adopted by a large majority. The bill
reported by the committee, appropriating the five and a half million
dollars, was then passed without objection. Congress had now done with
the subject, and its final disposition was left to the Executive
Department of the Government.(5)
Responding to the judgment of Congress, Mr. Evarts, then Secretary of
State, presented the whole argument against the award in a dispatch
of September 27, 1878. He was compelled to believe from the magnitude
of the award, that considerations foreign to the questions submitted
had been brought before the Arbitration. He called the attention of
Lord Salisbury, who had become Foreign Secretary in the second Disraeli
Cabinet, that five fishing-seasons under the treaty had elapsed before
the Halifax Commission was organized, and that therefore we had actual
statistics showing the value of the privilege conceded to the United
States, instead of the conjectural estimates which had been used when
the treaty was made. By these actual and careful statistics, it had
been found that from the inshore fishing American fishermen had in the
five seasons secured 125,961 barrels of mackerel,--worth when packed
and ready for exportation $3.75 per barrel, and in the aggregate
$472,353. But in this price, as Mr. Evarts explained, "are included
the barrel, the salt, the expense of catching, curing and packing,
which must all be deducted before the profit is realized. Upon the
evidence, a dollar a barrel would be an excessive estimate of _net_
profit, and this would give to our fishermen, for the five seasons of
the fishery privilege, but $25,000 a year, or for the whole twelve
years but $300,000."
Not content to rest his argument upon this statement alone, Mr. Evarts
called Lord Salisbury's attention to the fact that if the mackerel be
estimated at the most extravagant price of $10 per barrel, and half the
sum estimated as _net_ profit, the total value of the fishery would be
but $125,000 per annum, or $1,500,000 for the twelve years. The only
problem, therefore, left for the Government of the United States to
consider, was whether in exchange for the $5,500,000 awarded by Mr.
Delfosse, and the $4,200,000 of duties remitted to Canada on fish and
fish-oil, we were actually to receive a total of $300,000 or
$1,500,000? In other words was the loss to the United States by the
transaction to be $9,400,000 or $8,200,000?
Lord Salisbury, in his reply, quoted eminent American publicists to
show that a majority of the Commission was authorized to make an award.
He maintained that the rule in international arbitrations empowered
the majority of the arbitrators to decide; but if that be a generally
recognized rule, his Lordship should have explained why in the case of
the Geneva and Washington arbitrations, (provided for in the same
treaty with the Halifax arbitration), the right of the majority to
decide was specifically provided for, and was regarded in at least one
case _as a concession by the High Commissioners of Great Britain_. His
Lordship declined to follow Mr. Evarts "into the details of his
argument." He maintained that "these very matters were examined at
great length and with conscientious minuteness by the Commission whose
award is under discussion." He admitted, with diplomatic courtesy,
that "Mr. Evarts' reasoning is powerful," but still in his judgment,
"capable of refutation." He did not, however, attempt to refute it,
but based his case simply on the ground that the award gave the
$5,500,000 to England. In all frankness his Lordship should have said
that Mr. Delfosse, in his grace and benevolence, gave the large sum to
England.
Secretary Evarts, with great propriety, declined to press the points
submitted in his dispatch. His only design was to call the attention
of the British Government to the extraordinary facts, and leave to
the determination of that Government whether any thing should be done
to mitigate the glaring and now demonstrated injustice of the award.
"The Government of the United States," said Mr. Evarts in closing his
dispatch, "will not attempt to press its own interpretation of the
treaty against the deliberate interpretation of her Majesty's
Government to the contrary." He made no rejoinder to Lord Salisbury,
and paid on the day it was due--one year from the date of award--the
amount adjudged to Great Britain. Every American felt that under such
circumstances it was better to pay than to be paid the five and a half
million dollars.
It is not difficult to understand how Mr. Delfosse was brought to such
an extraordinary conclusion, and there has been no disposition in the
United States to impute his action to improper motives. The wrong was
done when he was selected as third Commissioner, and the tenacity with
which he was urged will always require explanation from the British
Government. Mr. Delfosse had spent his life in the Diplomatic service,
was not in any sense a man of affairs, and was profoundly ignorant of
the fishery question. From the diplomatic point of view he could not
understand that the Dominion of Canada should open her inshore
fisheries to such a power as the United States without some
consideration beyond that of mere commercial demand. Measuring in his
own mind the value of such a right on the restricted coast of his own
country, it was natural that he should multiply it somewhat in the
proportion of the vastly extended coast of British America, now thrown
open to the United States. He was further influenced by the claim
shrewdly put forward by the British agent and British attorneys that
the inshore fisheries were worth $12,000,000 to the United States for
the period of the treaty, and the Newfoundland fisheries $2,280,000 in
addition. It is difficult to speak of these pretensions with respect,
or to treat them as honestly put forward by men to whom all the facts
were familiar.
Above all, Mr. Delfosse knew that the Belgian sovereign, whose favor
was his own fortune, would earnestly desire a triumph for the British
cause. Both sides made strong representations, and presented
statistics and tabular statements and elaborate comparisons, which he
did not analyze, and perhaps did not understand. England, he knew, had
been mulcted in fifteen and a half millions in the Geneva award, and
the San Juan controversy had been decided against her by the Emperor
of Germany. With the connections and surroundings of Mr. Delfosse he
would have been more than human if he had not desired England to
triumph in at least one of the questions submitted to arbitration under
the Treaty of Washington. But while these circumstances relieve Mr.
Delfosse from any imputation upon his personal or official honor, they
only render more prominent and more offensive the singular pertinacity
with which the British Government insisted upon his appointment as one
of the Commissioners in an arbitration that was originally designed to
be impartial.
[(1) The third article of the treaty of 1782 is as follows: "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 Britannic
Majesty's dominions in America and that the American fishermen shall
have liberty to dry and cure fish in any of the unsettled bays,
harbours, 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 settlement, without a previous
agreement for that purpose with the inhabitants, proprietors, or
possessors of the ground." Precisely the same concession is embodied
in the treaty of 1783.]
[(2) Article I. of the treaty of 1854 provided:--
"ARTICLE I. It is agreed by the high contracting parties that in
addition to the liberty secured to the United-States fishermen by the
above-mentioned convention of Oct. 20, 1818, of taking, curing, and
drying fish on certain coasts of the British North American colonies
therein defined, the inhabitants of the United States shall have, in
common with the subjects of her Britannic Majesty, the liberty to take
fish of every kind, except shell-fish, on the sea-coasts and shores,
and in the bays, harbors, and creeks of Canada, New Brunswick, Nova
Scotia, Prince Edward's Island, and of the several islands thereunto
adjacent, without being restricted to any distance from the shore, with
permission to land upon the coasts and shores of those colonies and
the islands thereof, and also upon the Magdalen Islands, for the
purpose of drying their nets and curing their fish; provided that, in
so doing, they do not interfere with the rights of private property,
or with British fishermen, in the peaceable use of any part of the
said coast in their occupancy for the same purpose."
In Article II. of the treaty it was reciprocally agreed as follows:--
"ARTICLE II. It is agreed by the high contracting parties that British
subjects shall have, in common with the citizens of the United States,
the liberty to take fish of every kind, except shell-fish, on the
eastern sea-coasts and shores of the United States north of the 36th
parallel of north latitude, and on the shores of the several islands
thereunto adjacent, and in the bays, harbors, and creeks of the said
sea-coasts and shores of the United States and of the said islands,
without being restricted to any distance from the shore, with
permission to land upon the said coasts of the United States and of
the islands aforesaid, for the purpose of drying their nets and curing
their fish, provided that, in so doing, they do not interfere with the
rights of private property, or with the fishermen of the United
States, in the peaceable use of any part of the said coasts in their
occupancy for the same purpose."
Both concessions reserved "the salmon and shad fisheries and all
fisheries in rivers and the mouths of rivers."]
[(3) The following is a complete list of the articles to be admitted to
either country from the other _free of all duty:_--
Grain, flour, and breadstuffs of all kinds; animals of all kinds;
fresh, smoked, and salted meats; cotton-wool, seeds, and vegetables;
undried fruits, dried fruits; fish of all kinds; products of fish, and
of all other creatures living in the water; poultry, eggs; hides, furs,
skins, or tails, undressed; stone or marble, in its crude or unwrought
state; slate; butter, cheese, tallow; lard, horns, manures; ores of
metals, of all kinds; coal; pitch, tar, turpentine, ashes; timber and
lumber of all kinds, round, hewed, and sawed, unmanufactured in whole
or in part; fire-wood; plants, shrubs, and tress; pelts, wool; fish-oil;
rice, broom-corn, and bark; gypsum, ground or unground; hewn, or
wrought, or unwrought burr or grindstones; dyestuffs; flax, hemp, and
tow, unmanufactured; unmanufactured tobacco; rags.]
[(4) Article XXII. of the Treaty of Washington is as follows: "Inasmuch
as it is asserted by the Government of her Brittanic Majesty that the
privileges accorded to the citizens of the United States under Article
XVIII. of this treaty are of greater value than those accorded by
Articles XIX. and XXI. of this treaty to the subjects of her
Britannic Majesty, and this assertion is not admitted by the Government
of the United States, it is further agreed that Commissioners shall be
appointed to determine, having regard to the privileges accorded by
the United States to the subjects of her Brittanic Majesty, as stated
in Articles XIX. and XXI. of this treaty, the amount of any
compensation which, in their opinion, ought to be paid by the
Government of the United States to the Government of her Britannic
Majesty in return for the privileges accorded to the citizens of the
United States under Article XVIII. of this treaty; and that any sum of
money which the said Commission may so award shall be paid by the
United States Government, in a gross sum, within twelve months after
such award shall have been given."]
[(5) The following is the text of the bill appropriating the amount
necessary to pay the award:--
"That the sum of five and one-half million dollars, in gold coin, be,
and the same is hereby, appropriated, out of any money in the Treasury
not otherwise appropriated, and placed under the direction of the
President of the United States, with which to pay to the Government
of her Britannic Majesty the amount awarded by the fisheries
commission, lately assembled at Halifax in pursuance of the Treaty of
Washington, if, after correspondence with the British Government on
the subject of the conformity of the award to the requirements of the
treaty and to the terms of the question thereby submitted to the
commission, the President shall deem it his duty to make the payment
without further communication with Congress."]