CONFIDENTIAL MEMORANDUM FOR THE USE OF THE COMMISSIONERS ON THE PART OF THE UNITED STATES IN THE AMERICAN-BRITISH JOINT HIGH COMMISSION, WASHINGTON, 1871.

II. THE FISHERIES.

1. RIGHTS AS DEFINED BY TREATY.

The convention of 1818, hereinafter referred to, gives to American fishermen

1. The right, in common with British fishermen, to fish within three marine miles of the land on all the coasts marked red, blue, and yellow, respectively, on the annexed map.

2. Prior to the negotiation of the treaty of 1818, France had secured for her fishermen, by treaty with Great Britain, a similar right on all the coasts marked red. Hence it follows that the American fishermen, as to that portion of the coast, enjoy the right to fish in common with the French as well as the British fishermen.

3. The additional right as to the coast marked blue to land, and dry, and cure fish, so long as the coast is unsettled.

[As to this right, it is to be observed that it is said to be important as to the cod-fisheries, but unimportant as to the mackerel-fisheries. The cod are usually split and dried on shore; the mackerel are cured on board.] 4. The "privilege" is also reserved to the American fishermen to enter the British North American bays or harbors, not included within the limits of coast so marked in colors, "for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever."

[The United States claim that this is a privilege to their fishing-vessels to go in and out of those bays and harbors for the purposes named without the custom-house formalities, and is not to be confounded with the right which all vessels which bear the flag of the United States have to enter the open British ports for the purpose of trade, or any other purpose lawful under the customs of nations.]

5. Except as above defined, the United States renounce forever the liberty to take, dry, or cure fish within three marine miles of any of the coasts, bays, creeks, or harbors of the British dominions in America.

2. CHARACTER OF THE FISHERIES.

The fisheries are known as the deep-sea and the in-shore fisheries. The latter are principally for herring and mackerel; and are understood to have been the principal cause of the trouble. The former include, and in fact mainly consist of, the cod and halibut fisheries.

3. VALUE OF THE BRITISH COLONIAL MARINE FISHERIES.

The value of these fisheries, as given in the latest accessible returns, isQuebec...

New Brunswick.

Nova Scotia..

Newfoundland

Prince Edward Island

Magdalen Islands

Total....

$1,046, 240 46

638, 576 00 2, 501, 507 00 7,005, 807 40 169, 580 00 71, 356 00

11, 433, 067 00

The fisheries of Newfoundland are principally deep-sea fisheries. The consul at Halifax gives it as his opinion that "of the aggregate products of the whole colonial fisheries, the in-shore fisheries-which are pursued chiefly for mackerel and herring-constitute the smaller portion; probably not more than one-fourth of the whole."

4. VALUE OF THE AMERICAN FISHERIES.

Mr. Mortimer Jackson, the consul at Halifax, says: "The number of American fishing-vessels engaged in the deep-sea fisheries off the coasts of the British North American provinces is, as near as can be estimated, about 1,400, with an aggregate tonnage of nearly 100,000 tons, employing about 17,000 men. They pursue the fisheries on the banks of Newfoundland, in the Gulf of Saint Lawrence, and on the western banks. On the banks the fisheries are pursued for cod and halibut, and in the Gulf of Saint Lawrence principally for mackerel. The capital employed in these fisheries is estimated at between eight and nine millions. The aggregate annual yield is about seven millions of dollars. The deep-sea fisheries are exclusive of the in-shore fisheries, which were alone affected by the abrogation of the reciprocity treaty. During the existence of that treaty, and subsequently, to a limited extent, under the license system, the in-shore fisheries were pursued by our fishermen chiefly for mackerel. The quantity so taken, however, did not exceed, on an average, in any one year, more than one-fourth of the whole catch of that description of fish.” (Manuscript dispatch No. 397, January 23, 1871.

Mr. E. H. Derby, of Boston, says: "The fisheries of the State of Massachusetts for whale, cod, mackerel, and herring produce yearly about twelve millions of dollars, of which less than a sixth are usually drawn from our fisheries in the Gulf of Saint Lawrence." (Manuscript Review of the Ottawa Review of the President's Message.)

5. MARKETS FOR CANADIAN FISH.

The Newfoundland-cured codfish find a large market in Spain, Portugal, the Mediterranean, South America, and the West Indies.

With that exception, the United States furnish the best market. This market, especially as to mackerel, has not been injured by the abrogation of the reciprocity treaty.

"It was fully demonstrated, during the existence of the reciprocity treaty, that the admission of American fishing vessels to a common participation in the privileges accorded to British vessels, instead of being injurious, was, on the whole, beneficial to the interests of the provincial fishermen." (Manuscript report of the consul at Halifax, January 23, 1871.)

6. DIPLOMATIC HISTORY.

The in-shore fisheries were acquired to Great Britain by the treaty of Paris, (1763,) which terminated the French dominion on this continent, and were enjoyed from that time till the Revolution by the inhab itants of the original thirteen States in common with the other inhabitants of the British empire.

1782, Nov. 30.

In the negotiations preceding the treaty of '83, an attempt was made to induce the American commissions to give up the fisheries, which John Adams met by saying, "I will never put my hand to any article without satisfaction about the fisheries." Finding the

commissioners firm on this question, the provisional articles were signed November 30, 1782, and

"The definitive treaty of peace" was signed, of which the 3d article (being identical with Article III of the provisional article) read thus:

ARTICLE III.

1783, Sept. 3.

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 Saint 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, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled; but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground.

1813-'14.

The fisheries were among the questions discussed by the commissioners for negotiating the treaty of peace that closed the war of 1812. The United States commissioners claimed that the treaty of 1783 conferred no new rights upon the United States; that it was an agreement as to a division of property which took place on the division of the British empire after the success of the American Revolution, and was not in that respect abrogated by war. The British commissioners, on the other hand, held that, while the treaty of 1783 recognized the right of the United States to the deep-sea fisheries, it conferred privileges as to the in-shore fisheries and the use of the shores which were lost by a declaration of war. The parties being unable to agree, (see Am. St. Pap., For. Rel., vol. 3, pages 732 et seq.)

The treaty of Ghent was concluded without allusion to the fisheries.

1814, Dec. 24.

Lord Bathurst instructed the governor of Newfoundland that " on the declaration of war by the American Government, and the 1815, June 17. consequent abrogation of the then existing treaties, the United States forfeited, with respect to the fisheries, those privileges which are purely conventional; and, as they have not been renewed by stipulation in the present treaty, the subjects of the United States can have no pretense to any right to fish within the British jurisdiction, or to use the British territory for purposes connected with the fisheries." (Review of President's Message, Ottawa, December, 1870.)

1815-'16.

This position resulted in a long correspondence between Mr. John Quincy Adams and Lord Bathurst, which ended by the British government adhering to its position. The correspondence may be found in Foreign Relations, vol. 4, page 352 et seq.

Mr. Bagot, British minister at Washington, reasserting Lord Bathurst's construction of the treaty of 1783, and of the effect of 1816, Nov. 27. the war, proposed a new arrangement, upon the basis of a concession of the right to cure fish on certain coasts, to fish within British limits on certain coasts, and of a renunciation of the right to fish within those limits on all other coasts. The first proposition made was not an acceptable one.

Another proposition was made, which, although not accepted, appears to have been the basis of the subsequent arrangement. (Ib., page 365 et seq.)

Dec. 31.

Instructions having been issued by Great Britain to seize foreign vessels fishing or at anchor in any of the harbors or creeks 1817, Aug. 8.

in her Majesty's British North American possessions, or within their maritime jurisdiction, and send them to Halifax for adjudication, several vessels were seized, and information officially communicated to this Government. (lb., page 379.)

Mr. Gallatin, envoy extraordinary and minister plenipotentiary to 1818, May 22. France, and Mr. Rush, envoy extraordinary and minister plenipotentiary to Great Britain, were then empowered "to agree, treat, consult, and negotiate, of and concerning the general commerce between the United States and Great Britain and its dominions or dependencies, and such other matters and subjects interesting to the two nations as may be given to them in charge, and to conclude and sign a treaty or treaties, convention or conventions, touching the premises." (Ib., page 372.)

Their instructions related to the prolongation of the treaty of commerce of 1815, (8 Stat. at Large, 228;) to the commerce and intercourse with the British colonies in the West Indies and North America; to indemnity to the owners of slaves carried away after the ratification of the tre ty of Ghent; to the boundary-line between the United States and th British possessions; and to the fisheries. (Ib., pages 371-2.)

The arranged for all these points, except the commerce with the colonies, in which the British ministry of that day were not disposed to allow the United States to share. (Ib., page 380.)

At the third conference of the commmissioners the American plenSeptember 17. ipotentiaries submitted their proposed articles, among which was the following relating to the fisheries:

ARTICLE A*.

Whereas differences have arisen respecting the liberty claimed by the United States ́for the inhabitants thereof to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed between the high contracting parties that the inhabitants of the said United States shall continue to enjoy, unmolested, forever, 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, and the western and northern coast of Newfoundland from the said Cape Ray to Quirpon Island, on the Magdalen Islands, and also on the coasts, bays, harbors, 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; and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland, here above described, of the Magdalen Islands, and of Labrador, as here above described; 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 previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground; and the United States hereby renounce 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, and harbors 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 and harbors for the purpose only of obtaining shel ter, wood, water, and bait, but under such restrictions as may be necessary to prevent their dry. ing or curing fish therein, or in any other manner abusing the privilege hereby reserved to them.

At the fifth conference the British plenipotentiaries presented a counter project, of which the part relating to the fisheries was 1818, Oct. 6. in the following language:

ARTICLE A.

It is agreed that the inhabitants of the United States shall have liberty to take fish of every kind on that part of the western coast of Newfoundland which extends from

* The words in italics were erased as the article was finally agreed to, and, in most cases, other words substituted in their places. (See post.)

Cape Ray to the Quirpon Islands, and on that part of the southern and eastern coast of Labrador which extends from Mount Joli to Huntingdon Islands. And it is further agreed that the fishermen of the United States shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of the said south and east coast of Labrador, so long as the same shall remain unsettled; but as soon as the same, or any part of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground.

And it is further agreed that nothing contained in this article shall be construed to give to the inhabitants of the United States any liberty to take fish within the rivers of His Britannic Majesty's territories, as above described; and it is agreed on the part of the United States that the fishermen of the United States resorting to the mouths of such rivers shall not obstruct the navigation thereof, nor wilfully injure nor destroy the fish within the same, either by setting nets across the mouths of such rivers or by any other means whatever.

His Britannic Majesty further agrees that the vessels of the United State, bona fide engaged in such fishery, shall have liberty to enter the bays and harbors of any of His Britannic Majesty's dominions in North America for the purpose of shelter or of repairing damages therein, and of purchasing wood and obtaining water, and for no other purpose, and all vessels so resorting to the said bays and harbors shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein. It is further well understood that the liberty of taking, drying, and curing fish, granted in the preceding part of this article, shall not be construed to extend to any privilege of carrying on trade with any of His Britannic Majesty's subjects residing within the limits herein before assigned to the use of the fishermen of the United States for any of the purposes aforesaid.

And in order the more effectually to guard against smuggling, it shall not be lawful for the vessels of the United States engaged in the said fishery to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of the fishery or the support of the fishermen while engaged therein, or in the prosecution of their voyages to and from the said fishing-grounds. And any vessel of the United States which shall contravene this regulation may be seized, condemned, and confiscated, together with her cargo.

The American plenipotentiaries replied to this as follows:

FISHERIES.

1818, Oct. 7.

The American plenipotentiaries are not authorized by their instructions to assent to any article on that subject which shall not secure to the inhabitants of the United States the liberty of taking fish of every kind on the southern coast of Newfoundland from Cape Ray to the Ramea Islands, and on the coasts, bays, harbors, 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, and also the liberty of drying and curing fish in any of the unsettled bays, harbors, and creeks of Labrador, and of the southern coast of Newfoundland, as above described, with the proviso respecting such of the said bays, harbors, and creeks as may be settled.

The liberty of taking fish within rivers is not asked. A positive clause to except them is unnecessary, unless it be intended to comprehend under that name waters which might otherwise be considered as bays or creeks. Whatever extent of fishingground may be secured to American fishermen, the American plenipotentiaries are not prepared to accept it on a tenure or on conditions different from those on which the whole has heretofore been held. Their instructions did not anticipate that any new terms or restrictions would be annexed, as none were suggested in the proposals made by Mr. Bagot to the American Government. The clauses forbidding the spreading of nets, and making vessels liable to confiscation in case any articles not wanted for carrying on the fishery should be found on board, are of that description, and would expose the fishermen to endless vexations.

At the sixth conference the American plenipotentiaries declared that they could not agree to the article on the fisheries brought forward by the British plenipotentiaries at the preceding conference. (Ib., page 392.)

1818, Oct. 9.

The British plenipotentiaries presented the following article as to the fisheries:

Oct. 13