Each of the seventeen colonies owned the fisheries on its own coasts, and colonial laws regulative of them were of frequent occur

rence.

The Colonial System and the Navigation Laws.-Another factor in the situation in 1783 must be remembered, namely, the mutually exclusive policy which all European nations had for many years pursued with reference to the trade of their respective colonies. The clause of the 1818 treaty permitting American fishermen to enter British bays and harbours (App., p. 31)—

for the purpose of shelter and of repairing damages therein, and of purchasing wood, and of obtaining water, and for no other purpose whatever

can scarcely be appreciated, at the present day, unless the fact is borne in mind that, in 1818, no foreign vessel of any kind was, unless under exceptional circumstances, permitted to enter a colonial harbour.

Nationality. One other factor in the situation should be mentioned, namely, the strength of the conception which at that date prevailed as to the advantages to be derived by any nation from an increase in the number of its seamen.

It was with a view to naval strength that England had from an early period confined to British subjects residing on the European side of the Atlantic the right to dry and cure fish on Newfoundland shores. Such was the policy of the statute of 1699 (10 & 11 Wm. III, cap. 25), and the meaning of that statute was, by the statute of 1775 (15 Geo. III, cap. 31), rendered clear. Not only were foreigners excluded, but British subjects residing in the American 7 colonies (other than Newfoundlanders) were refused liberty to exercise the privilege. (App., p. 525; App., p. 543.)

It was to prevent depletion of her force of sailors that Great Britain insisted upon the right to stop United States vessels on the high seas in order to search for British seamen. And it was the enforcement of that claim which was one of the causes of the war of 1812.

The exclusion of the Spaniards from the bank fisheries in 1763, and the partial exclusion of the French in the same year, were thought valuable to Great Britain, not simply because of the effect upon the business of fishing, but because of the loss to Spain and France of those "nurseries for seamen." (App., p. 10.)

1776-1782.-War of the American Revolution.

TREATY OF 1783.

1782-3.-Negotiations for the termination of the war were carried on in Paris at first informally, between Mr. Richard Oswald (instructed by Lord Shelburne, British Colonial Minister) and Dr. Franklin (representing the United States). Afterwards, at various

periods, Mr. Oswald received assistance from Mr. Strachey, Mr. Vaughan, and Mr. Fitzherbert (British Minister at Paris). Dr. Franklin's colleagues, Mr. John Adams and Mr. John Jay, joined him towards the end of the summer, and Mr. Laurens (a third colleague) arrived late in November. Preliminary articles were signed on the 30th of that month. The final treaty bears date the 3rd September, 1783.

The following is the text of article 3 which relates to the fisheries (app., p. 13):

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 Gulf 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 settlements, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground. Attention is called to the difference in the stipulations affecting the two sorts of fisheries. As to the bank-fisheries,—

8

It is agreed that the people of the United States shall continue to enjoy unmolested the right;

whereas, in regard to the coast fisheries, the agreement is-

that the inhabitants of the United States shall have liberty to take fish.

According to the contention of His Majesty's Government, the former was a recognition of a "right" to fish in the ocean and the gulf: the latter was a liberty or license to take fish in British territorial waters conceded by Great Britain for political reasons.

In addition to the fishing liberty, a grant was made at the same time of a large extent of territory that had been part of the Province of Quebec, and was at the date of the treaty in the occupation of Great Britain.

TREATY, GREAT BRITAIN AND FRANCE 1783.

On the same day a treaty of peace was signed by Great Britain and France. Among other provisions it was stipulated that French fishing rights should be exercised on the coast of Newfoundland from Cape St. John to Cape Ray, instead of from Cape Bonavista to Point Riche, as in the Treaty of Utrecht. (App., p. 11.)

1789.-A British statute (29 Geo. III, cap. 53) enacted (App., p. 563)

that no fish, taken or caught by any of His Majesty's subjects, or other persons, arriving at Newfoundland, or its dependencies, or on the banks of the said island, except from Great Britain, or one of the British dominions in Europe, shall be permitted to be landed or dried on the said Island of Newfoundland,

but excepted the rights of the citizens of France.

This statute shows how jealously Great Britain guarded the shores of Newfoundland at this time.

DELAWARE BAY 1793.

1793. The French frigate "L'Embuscade" captured the British ship "Grange" in Delaware Bay, at a distance from the shore of more than 3 miles. Declaring that the whole of the bay was within its jurisdiction, the United States required the restoration of the frigate. France complied. The bay has a headland width of 101 miles.

9

UNITED STATES CLAIM TO TERRITORIAL WATERS, 1806.

1806.-During the negotiations with reference to freedom of United States vessels from British seizure, an attempt was made to fix the limit of United States jurisdiction upon its coasts, and the United States, suggesting that a fair distance would be as far out as (App., p. 60)-

the well-defined path of the Gulf Stream

asked that the following might be agreed to:

It is agreed that all armed vessels belonging to either of the parties engaged in war, shall be effectually restrained by positive orders, and penal provisions, from seizing, searching, or otherwise interrupting or disturbing vessels to whomsoever belonging, whether outward or inward bound, within the harbours or the chambers formed by headlands, or anywhere at sea, within the distance of four leagues from the shore, or from a right line from one headland to another:

After negotiations the limit was fixed at " five marine miles from the shore"; but the convention never became effective.

1812.-War again broke out between the two nations.

1814. The treaty of Ghent, which terminated the war, contained no provision as to the fisheries. Great Britain declined to renew the coast liberties except in return for equivalent concessions. The United States contended that renewal was not necessary--that the war had not affected the liberties of the previous treaty. (App., p. 25.)

TREATY OF 1818.

1818.-After long negotiations the treaty of 1818 was agreed to. It provided as follows (App., p. 30) :—

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, for ever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau 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, harbours, and creeks from Mount Joli, on the southern coast of Labrador, to and through the Straits 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 American fishermen

shall also have liberty, for ever, to dry and cure fish in any of 10 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, for ever, any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, 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 damages 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 taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.

Comparison of the two treaties. It will be observed that the 1818 treaty is silent as to the bank fisheries. These were not then in dispute. Comparison of the provisions of the two documents, so far as relates to coast fisheries, may be made as follows:

Liberty to Take Fish on:

1783.

1. Such parts of Newfoundland coast as British fishermen shall use. 2. On the coasts, bays and creeks, of all other British dominions in America.

Liberty to Dry and Cure Fish in

Any bays, harbours, and creeks for the time being unsettled of1. Nova Scotia.

1. Coast of Newfoundland-Cape Ray to Rameau and Cape Ray to Quirpon.

11

2. Shores of Magdalen Islands.

3. Coasts, bays, harbours, and creeks of Labrador, from Mount Joli, eastwardly and northwardly.

Liberty to Dry and Cure Fish in

Bays, harbours, and creeks for the time being unsettled of1. Coast of Newfoundland-Cape Ray to Rameau.

2. Coast of Labrador.

Renunciation of liberty to take, dry, or cure fish on or within three miles of all other coasts, bays, creeks, or harbours.

Proviso for entry to such bays or harbours for shelter, repairing damages, wood, and water, and for no other purpose whatever. This comparison shows the following facts:

1. The liberties of the 1818 treaty are very much more restricted than those of the 1783 treaty.

2. Some of the liberties of 1818 were new, that is, they had not been conceded in 1783.

REASONS FOR CONCESSION.

Concession of 1818.-The motives which actuated this new concession of fishing liberties are very clearly disclosed in the contemporaneous correspondence. The British Government absolutely repudiated all assertion of right upon the part of the United States, but yielded to the other considerations which were urged upon them, namely, friendship and regard for the benefits which would accrue to American fishermen, among whom were (App., p. 66) —

multitudes of people who were destitute of any other means of subsistence,

and who would thus be

afforded the means of remittance to Great Britain in payment for articles of her manufactures exported to America.

BRITISH STATUTE, 59 G. III, c. 38.

1819.-The British Parliament passed a statute intituled "An Act to enable His Majesty to make regulations with respect to the taking and curing fish on certain parts of the coasts of Newfoundland, Labrador, and His Majesty's other possessions in North America,

12

according to a convention made between His Majesty and the United States of America," and in pursuance of that statute an Order-in-Council was passed (19th June) containing instructions of general character to the Governor of Newfoundland. (App., p. 565.)

SOVEREIGNTY IN NEWFOUNDLAND.

1822-3.-Question having arisen between the United States and France as to the validity of the latter's claim to the exclusive right of