E described as of frightful magnitude; the concessions by England as of a corresponding character. It was alleged that important British maritime interests had been sacrificed. The tide of complaint was swelled by the recollection of similar alleged sacrifices under the Treaty of Paris of 1814. By that treaty, said the press, Great Britain had, at the height of her influence and power, returned to France, her European rival, the enjoyment of the Newfoundland fisheries, acquired after 20 years of war. And now the calamity was to be doubled by a similar gift to her rival in America. Similar complaints poured in from the colonies. The legislative assembly and council of Nova Scotia sent forward remonstrances which contained charges of American ambition and encroachment.13 Unsettled differences Although the convention settled the main question at issue by defining the rights and liberties of American fishermen in British waters, it did not enter into the details of the controversy sufficiently to clarify matters that appeared to be unimportant at the time. The free navigation of the Strait of Canso, the purchase of bait and other supplies, the landing and transshipment of fish, the operation of American fishing vessels in the larger bays-these and other privileges were soon to be demanded by the Americans and refused by the Canadians, each demand and refusal based upon a separate interpretation of the convention of 1818, each on the theory that their own interpretation of the convention of 1818 was the correct one.14 Rush, op. cit., pp. 366-367. Chapter 5.-1818-1853 DEVELOPMENTS FOLLOWING THE CONVENTION OF 1818 Expansion of fisheries The years following the close of the second war with Great Britain were filled with important political and economic changes throughout the country. Among the latter was the expansion of transportation facilities by the construction of highways, railroads, and canals, which opened the Middle West to trade and resulted in an expansion of the domestic market for the products of the fisheries. One of the more important developments, in this particular, was the opening of the Erie Canal in 1825, which permitted shipments into the Mississippi Valley of the best-quality codfish, which formerly had been exported.1 The effect of the increase in domestic consumption was somewhat offset, however, by a decided decrease in total exports and by the complete loss of European markets. The value of exports from 1789 to 1818 has been estimated at 1.9 million dollars annually; from 1819 to 1851 it was $895,000 annually, a decrease of more than 50 percent. Most of the exports during the latter period were to the French, Dutch, and Danish possessions, Cuba, and Haiti. Exports to the British West Indies were suspended during the War of 1812; when peace was declared, this trade was in the hands of fishermen of the British North American colonies. Exports to Europe, which had formerly been small, disappeared altogether in 1833.2 Accompanying these changes in the markets for products of the fisheries, there were changes in the nature of the fisheries themselves. At first, fishing had been predominantly for cod. Fishing for mackerel, however, became increasingly important, expanding from an insignificant activity until it rivaled the cod fishery. In 1807, vessels aggregating 69,306 tons were employed in the cod fishery, but by 1814 the tonnage had dropped to 17,855. After the close of the war the fleet again increased, but it was not until 1829 that it again reached the approximate level of 1807. The industry continued to expand, with minor fluctuations, until 1859, when there were employed in the cod and mackerel fisheries of Maine and Massachusetts 2,854 vessels totaling 147,248 tons and carrying 20,425 men.3 Bounties and duties Measures for the protection and encouragement of the fishing industry continued to be the subject of Congressional debate and action throughout this period. An act of 1819 continued, with only minor changes, the bounties to fishing vessels provided for in the act of 1813, and these continued in effect until 1866. The bounties paid to the fishing industry under the act of 1819 reached a peak of $464,178 in 1857, but the annual average for the period was $279,000. The allowance to one vessel during the season could not exceed $360. Five-eighths of the allowance went to members of the crew and three-eighths to the owner of the vessel. 1 McFarland, op. cit., p. 161. 2 Ibid., pp. 166–167. Ibid., pp. 160–197. Ibid., pp. 164-165. How ever, the maximum allowance (which was the exception), when prorated to a crew of eight men, would have amounted to only $28.12 per man per year, leaving $135 for the owner of the vessel. It is therefore not surprising that opponents to the act of 1819 were unable to refute the primary contentions of the industry that (1) the earnings of the fishermen were too small and (2) the bounty was essential as a means of maintaining a training ground for officers and men for the Navy and the Merchant Marine. The period between the War of 1812 and the middle of the century also marked a change in the attitude of the fishing industry towards the tariff. At the beginning of the period, it was primarily concerned with the level of duties on imported commodities used by the industry (salt, for example), and on foreign products such as molasses, sugar, and rum, which provided return cargoes for vessels engaged in the export trade in salted fish. However, as the importance of exports declined and the domestic consumption of fish expanded, industry became increasingly concerned about duties on imported fish. An act of July 4, 1789, made dried fish dutiable at 50 cents per quintal and pickled fish at 75 cents per barrel. There were only minor changes in subsequent tariff acts until the act of August 10, 1842, which made a broader classification of commodities and a net increase in existing duties. Smoked or dried fish were made dutiable at $1 per quintal; pickled or salted mackerel and herring, $1.50 per barrel; salmon, $2 per barrel; all other pickled fish in barrels, $1 per barrel; in other than barrels and halfbarrels, 20 percent ad valorem. Fish preserved in oil were made dutiable at 20 percent ad valorem, and fresh-caught fish brought in for daily consumption were duty-free. Under the act of June 30, 1846, fresh fish, formerly free of duty, were made dutiable at 20 percent ad valorem; and fish preserved in oil, dutiable under the preceding act at 20 percent ad valorem, were made dutiable at 40 percent. Of greater consequence, however, was the adoption in the act of 1846 of an ad valorem rate of 20 percent on imports of fish, smoked, dried, pickled, or salted. This rate was considerably lower than the specific duties to which such fish had previously been subject, and its adoption was followed by an increase of imports. During the 4 years preceding the act of 1846, imports of dried fish amounted to 1,358 quintals, valued at $10,120, and imports of pickled fish were 74,634 barrels, valued at $561,593; during the 4 years subsequent to the act, imports of dried fish increased to 42,332 quintals, valued at $88,781, and imports of pickled fish to 204,358 barrels, valued at 1 million dollars.5 Notwithstanding the increase in imports under the act of 1846, the rates were further reduced in the act of March 3, 1857, when fish preserved in oil were made dutiable at 30 percent ad valorem, and fish fresh, smoked, dried, pickled, or salted were made dutiable at 15 percent. CONFLICTING INTERPRETATIONS OF THE CONVENTION OF 1818 Inshore privileges Under the terms of the convention the United States renounced the liberty "to take, dry, or cure fish on, or within three marine miles of" certain coasts, bays, creeks, or harbors in British North America, but American fishermen were permitted to enter these waters "for the purpose of shelter and of repairing damages therein, and of purchasing wood, and of obtaining water, and for no other purpose whatever." It was contended on the part of the United States that the clause admitting American fishermen for the four specified purposes "and for no other purpose whatever" would not prohibit them from purchasing bait and other supplies intended for use in deep-sea fishing. The British interpretation, however, was that the prohibition expressed by this phrase was susceptible only to literal definition; American fishermen were therefore limited to the four privileges specifically enumerated in the convention. In this connection it should be pointed out that in the protocol of the American Commissioners of September 18, 1818, the purchase of bait was included among the privileges demanded in addition to those of shelter, repairing damages, and obtaining wood and water. But this demand was not allowed by the British Commissioners; consequently the word “bait" does not appear in the convention of 1818.7 The question of bays The controversial question of bays had its roots in a clause in the first article of the convention, which reads: And the United States hereby renounce forever, 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. It was contended on the part of the United States that the 3 miles as stated in the convention meant 3 miles from the shores of those bays, creeks, and harbors, following their sinuosities. Therefore all bays, etc., more than 6 miles broad would be free to American fishermen, except within 3 miles of the coast. On the other hand, the British interpretation of this clause was that the mouths of bays were properly closed to American fishermen 3 miles from a line drawn from headland to headland of the bay. The United States maintained that the prohibitions contained in the convention were never intended to include the great bays. But Great Britain contended that if the negotiators of the convention of 1818 had intended to exclude American fishermen only from bays within 3 miles of their shores, the use of the word "bays" was superfluous. Subsequently, many references were made to international law and usage which tended to restrict territorial jurisdiction over large bodies of water; however, most maritime nations claim exclusive jurisdiction over bays of a greater width than 6 miles. This can be affirmed of France (Bay of Cancale), England (Bristol Channel), and the United States (Long Island Sound and Delaware and Chesapeake Bays).8 The Strait of Canso Although the question in regard to the Strait of Canso never assumed the proportions reached by the controversy over inshore fishing privileges and the use of bays, it nevertheless was a source of considerable annoyance to some American fishermen from about 1839 until the Reciprocity Treaty of 1854. The Strait of Canso is not mentioned in the treaty of 1783 nor in the convention of 1818. It is a narrow passage, averaging 21⁄2 miles in width, which separates Cape Breton Island from Nova Scotia. American fishing vessels operating in the Gulf of St. Lawrence used it as a means of reaching the fishing grounds and returning therefrom rather than take the longer and more hazardous route around Cape Breton Island. 7 American State Papers, Foreign Relations, vol. 4, p. 383. 8 Freeman Snow, Treaties and Topics in American Diplomacy, Boston, 1894, pp. 442-443. When the convention of 1818 was negotiated, Cape Breton Island was an independent Province, but it was annexed to Nova Scotia in 1820. Before annexation and for several years thereafter, American fishermen experienced no difficulty in navigating the passage; but in 1839 Nova Scotian authorities tried to assess light dues upon American fishing vessels using the strait. Although Nova Scotia continued to agitate the question, passage through the strait was never in fact prohibited by either the British Government or the colonial authorities. According to principles laid down by leading authorities on international law, it appears that, where straits are not more than 6 miles in width and both shores are in possession of the same state, the territorial possession and jurisdiction of the riparian state is exclusive, with the exception of the right of passage. , CONTROVERSIES FROM CONFLICTING INTERPRETATIONS Imperial and Provincial legislation On June 14, 1819, the British Parliament enacted a statute to carry out the provisions of the fisheries articles of the convention of 1818. After iterating the first article (fisheries) of the convention, the statute declared it unlawful for any foreigners or foreign vessels to fish for, or to take, dry, or cure fish within 3 marine miles of any coasts, bays, creeks, or harbors, in any part of His Majesty's dominions in America not excluded in the limits specified in the convention. Violations of the act were punishable by forfeiture of the vessel, cargo, and equipment. American fishing vessels could enter bays and harbors of coasts for the purpose of gaining shelter and repairing damages therein, and of purchasing wood and of obtaining water, but for no other purpose. The statute further provided that any person refusing to leave such bays or harbors on order, or neglecting to conform to any of the regulations, should forfeit 200 British pounds." Between 1818 and 1854 the Provincial legislatures of Canada, Nova Scotia, and New Brunswick passed various statutes purporting to be based on the convention. They were more stringent and much more minute in their provisions than the imperial act. The most drastic of these was an act passed by the legislature of Nova Scotia in 1836, commonly called the Hovering Act, by which the hovering of vessels within 3 miles of the coasts or harbors was sought to be prevented by various rigid regulations and heavy penalties;10 subsequently, claims were asserted to exclude fishermen from all bays and even from all waters within lines drawn from headland to headland, to forbid them to navigate the Gut of Canso, and to deny them all privileges of traffic, including the purchase of bait and supplies in the British colonial ports. Seizures of fishing vessels Despite the imperial act of 1819, the 4 years following the ratification of the convention of 1818 were years of comparative quiet and security. In 1823, however, two British ships of war moved against the American fishermen operating in the Bay of Fundy and elsewhere in Nova Scotia and New Brunswick. They seriously interfered with fishing operations, but records show only one vessel captured and sent into port for trial. In 1824, Captain Hoare, of His Majesty's brig Dotterel, seized nine vessels in the Bay of Fundy. Three of these vessels were rescued by Sabine, op. cit., pp. 394-395. 10 Elliott, op. cit., p. 61. |