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British North America, and these rights were, in the Lioa lest sense, prescriptive and accustomed rights of property. At the end of the revolution, and by the Treaty of Peace signed in 178.3, he boundaries between the possessions of the two Powers—that is to say, the United States and Great Britain—were adjusted by Article III of that Treaty, which read as follows:
“ 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 ot all other of His Britannic Majesty's dominions in America.”
This was a grant or recognition of a right agreed upon for a consideration-viz., the adjustment of the boundaries and other engagements into which the United States by that Treaty entered.
For our purposes it is unnecessary to deal with the other Articles of that Treaty.
From 1783 until the war between Great Britain and the United States in 1812, citizens of the United States continued to enjoy the ancient rights belonging to them as subjects of Great Britain before the revolution, and reserved to them as citizens of the United States, to the extent outlined in the Article of the Treaty of 1783, to which I have referred. Between thore dates other subjects of difference and negotiation, apart from the fisheries, arose between the two nations, which were disposed of by the Treaties of 1794 and 1802, but the fishery provisions of 1783 continued down to the period of the outbreak of war in 1812.
At the close of that war a Treaty of Peace was concluded on the 24th December, 1814, which provided
(1.) For the restoration to each party of all countries, territories, &c., taken by either party during the war, without delay, save some questions of islands in the Bay of Passamaquoddy ;
(2.) For disposition of prizes and prisoners of war; and
(3.) For questions of boundary and dominion regarding certain islands and for the settlement of the north-eastern boundary, anıl also for the north-western boundary, but it made no reference whatever to any question touching the fisheries referred to in the Treaty of 1783.
On the 3rd July, 1815, Great Britain entered into a Commercial Treaty with the United States, which provided for reciprocal liberty of commerce between all the territories of Great Britain in Europe and the territories of the United States, but made no stipulation as regards commercial intercourse between British dominions in North America and the United States.
After the conclusion of the Treaty following the war of 1812-viz., that of the 24th December, 1814—there being then no Treaty obligations or reciprocal laws in force between, or in, either of the countries respecting commerial intercourse, the British Government contended that the fishing rights recognized and secured to the citizens of the United States by the Treaty of 1783 had become abrogated in consequence of the war of 1812, on the principlo of war annulling all unexecuted engagements between two belligerents. The fishing rights conveyed to the United States of America by the Treaty of 1783 having been annulled by the war of 1812, the citizens of the United States no longer had the right to fish in any of the North American waters. This exclusion continued until the conclusion of the Treaty of the 20th October, 1818, which Treaty remains in force to-day, and embodies the whole of the fishing rights or privileges to which United States' citizens are entitled in the waters that wash the coasts of this Colony.
Article I of that Treaty contains a recital of the fishing privileges in British North American waters conveyed to the United States by the Imperial Government. That Article reads as follows :
“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 Izlands: 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 Joly, 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 Bay Company: And that the American fishermen shall also have liberty for ever to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland above described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry and 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 renounces for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within 3 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 thein.'
The Treaty limited to a territorial extent the fishing rights of the people of the United States, which they had enjoyed as British subjects, and which had been recognized and continued under the Treaty of Peace of 1783, and down to the year 1812.
It provided for the continuance of the ancient rights of fishing on certain parts of the coast of this Colony, and of His Britannic Majesty's other dominions in America. "It also provided for a renunciation by the United States of pre-existing rights to take fish within 3 marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in British North America, not included within the limits set forth in the Article which I have read, that renunciation being subject, however, to the proviso that “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.'
The House will not fail to observe that the ancient right of fishing enjoyed by the fishermen of the United States, in common with the subjects of Great Britain, was continued in force by the Treaty of 1818, in the first place along a certain portion of the coast of Newfoundland, viz.: On the southern coast extending from Cape Ray to Rameau Islands, and on the western and northern coast from Cape Ray to Quirpon Islands: and, in the second place, along the coasts, bays. harbours, ard creeks of the Labrador coast, from Mount Joli on the southern coast of Labrador, to and through the Straits of Belleisle, and thence northwardly indefinitely; and that the renunciation on the part of the United States to fish on other coasts of the island, and in the bays, harbours, and creeks thereof, is perfectly clear and emphatic. The Treaty contained no provision as respects the exercise of what may be termed “commercial rights” by the American fishing or other vessels in the waters of this Colony, and the right remained, and still remains, of the Government of this Colony to exclude American fishing-vessels from all other waters or ports within the jurisdiction of the Colony, subject, of course, to the limitation of the general law which applies to all civilized communities, with respect to vessels under circumstances requiring the assistance of humanity.
It was not till the year 1830° that a reciprocal arrangement was entered into between the Government of Great Britain and that of the United States for what might be properly
termed “commercial” relations, the Act of Congress of the 29th May, 1830, providing for the : opening of all American ports to certain British colonial vessels on a mutual opening of
British colonial ports to American vessels, and a Proclamation dated the 5th October, 1830, giving effect to it on the part of Great Britain.
This arrangement would appear to have resulted in acts of aggression on the part of American subjects, and to a violation of the Treaty obligations of 1818, for we find that, in the year 1836, the Government of this Colony passed a Bill
, entitled " An Act to Prevent the - Encroachment of Aliens on the Fisheries of this Colony, and for the further protection of the
said Fisheries ; ” that, in the same year, the Province of Nova Scotia passed laws in respect to the seizure of American fishing-vessels for trading and fishing within the 3-mile limit; and that, in the year 1838, the said Province of Nova Scotia complained, by Address to the Queen, of such aggressions, and asked for naval force to prevent them. The force was supplied by the British Government, and seizures of American fishing-vessels became common.
Down through the years until 1854 the same conditions applied, when, on the 5th June, 1854, a comprehensive reciprocal trade Treaty was entered into between Her Majesty's Government and that of the United States, under which Americans were granted the right to fish within the limits prohibited by the Treaty of 1818, under certain restrictions. That Treaty terminated in the winter of 1864 by a vote of the Congress of the United States.
Between 1864 and 1871 the policy of issuing licences to American fishermen to fish in the waters from which they were excluded for fishing purposes by the Treaty of 1818 was adopted by the Canadian Government, and, during the year 1866, 354 licences were issued by that Government at the rate of 50 cents per ton. The next year the licence fee was increased to 1 dollar per ton, and the number of licences issued amounted to 281. In 1868 and 1869 the licence fee was doubled to 2 dollars per ton, and, in the years 1868 and 1869, 56 and 25 licences respectively were taken out. The Canadian Government then changed its policy and enacted exclusive laws against American fishermen, forcing them to keep without the 3-mile limit.
In the year 1871 another reciprocal trade Treaty was entered into between Her Majesty's Government and that of the United States, which provided that, for a period of ten years, fishermen of the United States should have, in addition to their rights under the Treaty of 1818, the privilege of inshore fishing in the waters of British North America under certain limitations. In return for that privilege it was provided that the fishery products of this Colony and of the neighbouring dominion were to have free entry into the markets of the United States. On the 1st July, 1885, that Treaty was terminated by the Congress of the United States, and the fishing rights of United States' citizens reverted back to those outlined in the Treaty of 1818.
In the year 1888 an attempt was made by Her Majesty's Government to negotiate another reciprocity Treaty with the United States of America on behalf of the Dominion of Canada and this Colony. These negotiations resulted in what is known as the Bayard-Chamberlain Treaty which was signed on the 5th February, 1888, but which was subsequently rejected by the Senate of the United States, and was never ratified. This Treaty was intended to convey to United States' fishermen the privilege of entering the ports, bays, and harbours of this Colony, free of charge, for the following purposes :
1. The purchase of provisions, bait, ice, seines, lines, and all other supplies and outfits; 2. Transhipment of catch, for transport by any means of conveyance;
3. Shipping of crews, in return for the free entry into the United States of fish-oil, whaleoil, seal-oil, and
fish of all kinds (except fish preserved in oil), being the produce of fisheries carried on by the fishermen of this Colony, including Labrador.
In the year 1889, the Government of this Colony approached Iler Majesty's Government with a view to negotiations being opened with the United States' Government for a measure of reciprocal trade between this Colony and the United States.
In the following year it was my privilege to be a Delegate to Her Majesty's Government, with Sir William Whiteway and the late Mr. Harvey, on the French "shore question, and the opportunity was then availed of to press upon Her Majesty's Government, the views of the then Government of the Colony in relation to the desirability of the Government's being. granted an opportunity to try and bring about a Trade Convention with the United States on its own behalf, and as distinct from the Dominion of Canada. It was impressed upon Her Majesty's Government that the interests of this Colony and those of the Canadian Dominion were not identical, and that there were questions operating as between the Dominion of Canada and the United States in which this Colony had no concern, and which effectively barred the possibility of successful reciprocal negotiations.
Her Majesty's Government, recognizing the force of the position that was set forth, granted permission to the Government of Newfoundland to make the attempt on its own behalf, and I was authorized to proceed to the United States of America to assist Lord Pauncefote in negotiating a Trade Convention. The result of my labours was entirely successful, so far as the making of a Treaty was concerned. An agreement was arrived at satisfactory to the Government of this Colony as well as to the Government of the United States, which has passed into history as the Bond-Blaine Convention.
That Convention was upon the lines of the 1888 Treaty. It proposed to convey to American fishermen the rights intended to be conveyed by the Bayard-Chamberlain Treaty, in exchange for the free admission of our fishery products and crude copper ores, the product of Newfoundland mines, into the markets of the United States. That Convention was never submitted for ratification, being held in abeyance by Her Majesty's Government out of deference to the wishes of the Dominion of Canada.
Into the motives that prompted the action of the Dominion of Canada, and the injustice with which this Colony was treated by Her Majesty's Government in that connection, I do not propose to enter, as the House is only concerned at the present time with a history of the Treaties that have been made, or attempted to have been made, from time to time with the United States of America with respect to the fisheries, and not with the merits of the various proposals.
The Convention of 1890 having failed for the reasons that I have mentioned, in the year 1898 the then Government of the Colony united with the Government of the Dominion of Canada an:) Her Majesty's Government in an attempt to bring about a Treaty upon the lines of the Bayard-Chamberlain Treaty of ten years previous. The negotiators met, and for some weeks the attempt to arrive at an arrangement satisfactory to all parties was continued, but these negotiations also fell through.
In the year 1902, when in London in connection with the Colonial Conference, I availed of the opportunity to press the claims of this Colony for separate negotiations with the United States a second time upon the attention of the Colonial Office, and succeeded in obtaining permission from Her Majesty's Government to proceed to Washington, and was given authority to reopen negotiations witń the Uuited States' Government for a Trade Treaty between this Colony and the United States. I was again successful in my negotiations, and a Convention was concluded which has become familiar as the Hay-Bond Treaty. That Treaty was upon the lines of that of 1890. With its merits I do not propose to deal at this time, as it does not enter into the question before us; suffice it to say that that Treaty has been before the United States' Senate for the last three years, and is still before that Senate, and that it has been blocked in its passage by the immediate action of the fishing interests of Gloucester through their Representative in the Senate, and it is the present condition of things as regards that Treaty that in part has necessitated the Bill that I have introduced before the House. Since 1890, when our first Convention was negotiated, American fishermen have been admitted to one of the principal privileges that it was intended should be conveyed under that Convention, viz., that of free access to the waters and harbours of this Colony for a supply of. bait fishes. That privilege has been continued during the last fifteen years, because this Colony had reason to believe that, when His Majesty's Government set aside the objections of the Canadian Dominion and signified its willingness to assent to a Trade Convention that would be satisfactory to this Colony ; that then the United States' Senate would readily give its approval to a measure of reciprocal trade, that has been made with the indorsations of J. G. Blaine and Colonel John Hay, two of the most eminent and patriotic men that have ever held positions of power in a great Republic.
As I observed a day or two ago, the position as regards the negotiations of Treaties in the United States is entirely different from that which appertains in any other part of the world. The practice of other countries when a Treaty is negotiated by the Government is that it is not en to amendment, and, if it is rejected by the Legislature, it would necessarily result in the resignation of the Government and a change of Administration. In the United States of America the case is entirely different, for when its Government makes a Treaty it is recognized that such Treaty is liable to be thrown out or entirely altered by the Senate. The law of the United Statesthat is to say, the Tariff Act of 1897—authorizes the President of the United States to negotiate reciprocity Treaties, provided that the reduction of duties made in same shall not exceed 20 per cent. Under and by virtue of that mandative law the Administration of the United States has negotiated Treaties with a number of countries—for instance, since 1899, with Barbados, British Guiana, Turks or Caicos Islands, Jamaica, Bermuda, Argentina, the French Republic, and this Colony, all of which are in exactly the same position, viz., are hung up in the United States' Senate; in other words, the Senate has pigeon-holed the entire list, thereby setting aside the policy asserted in the national platform and embodied in the Tariff Law.
From the movement that is taking place in the commercial centres of the United States, it is evident that it is being recognized that a procedure which brings about such results is defective, and exhibits the Government of the United States as powerless to give expression to the nation's policy and intention.
I have said that the present action in respect to our relations with the United States has been brought about in part by the action of the fishery interests of Gloucester, through the medium of those who, while prepared to accept the privileges freely and generously extended to them during the last fifteen years, are not prepared to admit the correctness of the principle approved by the United States' Administration, that the extension of such privileges entitle this Colony to that measure of reciprocity provided for in the Treaty now before the Senate. It would seem that the gratuitous extension of those privileges by the Government of this Colony over so long a period has given the impression to the people of the fishing Settlement of Gloucester, that the tew thousand dollars left by them in this Colony in the purchase of bait fishes is so important a consideration to the people of this Colony that no action is likely to be taken to prevent a discontinuance of those privileges. I have already shown by extracts from papers presented to the Senate of the United States from Gloucester, and from the report of the utterances of some of her representative men, the correctness of our conclusion.
In conclusion, I desire to make clear to this House, and to all those outside of the House who are interested in the question under consideration, what is the attitude of the Government.
This must not be regarded in the nature of a threat, as " a declaration of war,” as the leader of the Opposition has asserted, or as an attempt to strike a blow at the fishery interests of the New England States ; but it is, I submit, a wise measure, conceived in the interests of the people of this Colony, and calculated only to command the respect of our friends in the great American Republic.
For fifteen years, by a free and generous policy toward our fisher friends of the New England States, we have endeavoured to show them that in our desire to secure a measure of reciprocal trade with their country we intend them no injury whatever ; on the contrary, we desire to compete with them on equal terms for the enormous market that the 85,000,000 of people in the United States offers for fishery products. In 1890 we said to the people of the United States, remove the Tariff bar that shuts our fishery products out of your markets, and we will grant you all the supplies that you require at our hands to make your fishing a success. The offer still holds good. For the reason that I have explained, the past fifteen years the fishermen of the United States have received those supplies without the Tariff barrier to the admission of our fishery products into the United States being removed by act of Congress, but we find the very men to whom we have extended such generous treatment are precisely those who have worked most strenuously to injure us in our trade relations with their country. We now propose to convince those men that the hands that have bestowed the privileges they have enjoyed have the power to withdraw those privileges. In doing this we simply rise to the full dignity of matter-of-fact statesmen. With the Administration of the United States we have no shadow of a cause for complaint. They have treated us with the greatest courtesy whenever we have approached them, and have manifested both a friendly and just attitude towards this Colony. It is not the fault of the Administration at Washington that we are where we are to-day in this matter; the fault lies solely at the door of those who for petty personal interests have misrepresented facts, aud, by so doing, have deceived those who represent them in the Senate of their country. It would ill-become us, a little Colony of a quarter of a million people, to throw down the gauge of battle to a great nation of eighty odd millions. We should merely make ourselves the laughing-stock of the world. But, by standing upon our rights and exercising such powers as we possess in defence of those rights, we challenge the commendation and respect of all those within this Colony and beyond its borders whose judgment is influenced by considerations of justice and patriotism. I beg to move the second reading of the Bill.
APPENDIX No. 8.
Speech by Sir R. Bond in moving House of Assembly into Committee on “ The Foreign Fishing
Vessels Bill, 1905,” delivered the 12th April, 1905.
The Right Honourable the Premier, Sir Robert Bond.-In moving that this Bill be now referred to a Committee of the whole House, I desire to make a few observations in reply to the remarks of the honourable Leader of the Opposition when it was up for a second reading. In doing so I shall be as brief as possible, and confine myself to the four principal points of the honourable gentleman's criticism.
They may be dealt with under the following heads, namely:
I shall deal with his criticism in the order that I have named, and I do not think that I shall have very much difficulty in convincing the House that his premises were unsound and his logic seriously defective. The honourable gentleman may have succeeded in convincing himself as to the wisdom of his observations and of the correctness of his conclusions, but I hardly imagine that he convinced the House or any Member of it.
Now as to the rights of American fishermen in the waters of this Colony under the Treaty of 1818:
Those rights, as I explained on Friday, are defined in Article I of the Treaty, and are as follows:
1. To take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands;
2. To take fish of every kind on the western and northern coasts of Newfoundland, from the said Cape Ray to the Quirpon Islands; and
3. To take fish of every kind on the coasts, bays, harbours, and creeks, from Mount Joly, on the southern coast of the Labrador, to and through the Straits of Belleisle, and thence northwardly indefinitely along the coast.
Subject to these limitations, American fishermen have a right in common with British fishermen to prosecute their industry within those areas.
But this embraces the whole of their privileges in respect to the capture or taking of fish.
Every other right that they ever possessed they renounced under the said Treaty, in the following emphatic language, namely:
“The United States hereby renounces for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish in or within 3 marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America not included in the above limits."
Their renunciation contained but one qualification, and that was " that American fishermen shall be permitted 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 parpose whatever.
In dealing with the rights of American fishermen as thus defined, I ventured to take the position that those fishermen have no right to fish within any of the bays, creeks, or harbours on that stretch of coast between Cape Ray and Rameau Islands, and Cape Ray and Quirpon Islands, and that their right to fish in bays, creeks, and harbours is confined and limited by the Treaty of 1818 to that portion of coast from “ Mount Joly, on the southern coast of Labrador, to and through the Straits of Belleisle, and thence northwardly indefinitely along that coast.”
To this position the Leader of the Opposition took strong objection, and the major portion of his remarks were in support of his objection.
The House was told that “no lawyer could place such a construction upon the Treaty”; that it would be unreasonable to suppose that nearly one hundred years could pass without the position having been discovered by the eminent lawyers of England, America, Canada, and of this Colony if that position was tenable"; that it was “an absurd position”; that if the Americans had the right to fish by Treaty " they also had the right to do all things incident to the fishery,” and that “ if they could not fish without landing, they had a perfect right to land ”; that it was “a cardiual legal principle that a grant of a privilege carries with it all incidentals in order to fully possess and enjoy the privilege.
Now, Sir, in reference to the assertion that “ no lawyer could place such a construction upon the Treaty," I would observe that lawyers, like doctors, differ in their opinions. It is their business, apparently, to differ. If they agreed in their construction of Treaties and laws, then there would be no litigation, and their avocation, and that of Judges and juries, would be gone.