CHAPTER XXVII.

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 cla.s.s 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 a.s.sent 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that the war of 1812 had put an end to all existing treaties, and that, the fishery clause in the treaty of 1782 being no longer in force, our fishery rights had expired, and if revived at all must be revived under new stipulations.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 a.s.sumed 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 insh.o.r.e 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 insh.o.r.e 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 insh.o.r.e 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 insh.o.r.e 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 a.s.sent 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 a.s.sertion 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 a.s.sociated 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 circ.u.mstance that the Austrian Amba.s.sador 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 Amba.s.sador 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 a.s.sent 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 Amba.s.sador at London."

The State Department was justified by this time in considering that the British Government was resorting to devices for delay. Circ.u.mstances 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 Const.i.tutional a.s.sent 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 Const.i.tutional form before the proposition could be a.s.sented 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 pa.s.sed 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 emba.s.sador 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 Amba.s.sador 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 a.s.suredly could not doubt that an Austrian Amba.s.sador, 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 Amba.s.sador, 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 Ma.s.sachusetts 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 Ma.s.sachusetts 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 Ma.s.sachusetts, and William Henry Trescot of South Carolina, American Secretary of Legation in London under the Presidency of Mr. Fillmore, and a.s.sistant 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 insh.o.r.e 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 ma.s.ses of confused statistics, and caused the spa.r.s.ely 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 antic.i.p.ated from the first. He estimated the superior advantage of the privilege of the insh.o.r.e 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 insh.o.r.e 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 sh.o.r.e-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 embarra.s.sment 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 const.i.tuting 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 a.s.serted 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 att.i.tude 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 circ.u.mstances 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 a.s.suring 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 x.x.xIII. 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 pa.s.sed 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 insh.o.r.e 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.