Cutts to William H. Seward, April 7, 1866

Mr. Cutts to Mr. Seward.

Sir: For a full understanding of the differences which now exist in regard to the rights which belong to American fishermen, in the seas bordering the British North American colonies, it is necessary to refer to the treaties and negotiations which preceded the convention of 1818, so far as they relate to the fisheries.

definitive treaty of peace, 1783.

Article 3. “It is agreed that the people of the United States shall continue to enjoy, unmolested, the right to take fish of any 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 they shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use, but not to dry or cure the same on that island; and also on the coasts, bays, and creeks of all other of his Britannic Majesty’s dominions in America.”

In the treaty of Ghent, terminating the last war with Great Britain, no allusion was made to the subject of the fisheries.

In July, 1815, complaint was made that American fishing vessels, engaged in the cod-fishery off the coast of Nova Scotia, had been ordered away by a British sloop-of-war, and this act, while it was declared to be totally unauthorized by his Majesty’s government, led to a correspondence between our minister at London (John Quincy Adams) and Lord Bathurst, in which the United States adhered to the right and liberty of fishing, as secured by the treaty of 1783, on the ground that those rights and liberties were not grants from the King, but the permanent results of a partition of rights at the time of the separation of the two countries, and contended, therefore, that they could not be impaired by a state of war. On the other side it was asserted that while the right described in the treaty may not have been impaired, the “liberties” were a concession dependent on the treaty, and as the treaty was abrogated by the war, so also were the “liberties.”

convention of 1818.

At the third conference held between the American and British plenipotentiaries—Messrs. Gallatin and Rush on the part of the United States, and Messrs. Robinson and Gouldburn on the part of Great Britain—the former presented a proposition in regard to the fisheries in almost the identical language of the 1st article of the convention, afterwards adopted, with the understanding that the liberty of fishing therein described should be considered as a permanent right, and not to be abrogated by the mere fact of a war between the two parties.

At the fifth conference a counter project was submitted by the British plenipotentiaries, not materially differing from the above, except that the renunciatory clause was omitted, and the following paragraph added:

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

In regard to this paragraph, and to another referring to fishing at the mouths of rivers, Messrs. Gallatin and Rush presented the following remarks:

“Whatever extent of fishing ground may be secured to American fishermen, the American plenipotentiaries are not prepared to accept it on a tenure, or on conditions different from those on which the whole has been heretofore held. Their instructions did not anticipate that any new terms or restrictions should be annexed, as none were suggested in the proposals made by Mr. Bagot to the American government. The clauses forbidding the spreading of nets, and making vessels liable to confiscation, in case any articles not wanted for carrying on the fishery should be found on board, are of that description, and would expose the fishermen to endless vexations.”

At the seventh conference held on the 13th October, 1818, the British plenipotentiaries submitted a second counter project, conforming with the views and free from the obligations presented by Messrs. Gallatin and Rush, and this project being agreed to constituted the 1st article of the convention, 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, harbors and creeks of his Britannic Majesty’s dominions in America, it is agreed between the high contracting parties that the inhabitants of said United States shall have forever, 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 Ramea islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Ramea islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon islands, on the shores of the Magdalen islands, and a so on the coasts, bays, harbors and creeks, from Mount Goly, on the southern coast of Labrador, and through the straits of Belle Isle, and thence northwardly, indefinitely, along the coast, without prejudice, however, to any of the exclusive rights of the Hudson’s Bay Company; and that the American fishermen shall also have liberty forever to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland, here above described, and of the coast of Labrador. But, so soon as the same or any portion thereof shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at any such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground; and the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure dish, 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 above mentioned limits: Provided however, That the American fishermen shall be admitted to enter such bays or harbors 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 nay be necessary to prevent their taking, drying, or curing fish therein, or in any manner whatever abusing the privileges hereby reserved to them.”

The differences which have heretofore arisen between the United States and Great Britain, touching the exercise of the rights and liberties secured to American fishermen, may be classed under two principal heads:

1. As to the construction of the renunciatory clause of the convention.

Under this clause Great Britain has contended that no American fishermen has the right to fish within three marine miles of the entrance to any “bay,” which “from its geographical position may be properly considered as included within the British possessions,” and that, the entrance to such bay must be designated by a line drawn from headland to headland. In support of this construction it has been urged that “if the convention was intended to stipulate simply that American fishermen should not take fish within three miles of the coast, there was no occasion for using the word bay at all, but the proviso at the end of the article shows that the word ‘bay’ was used designedly, for it is expressly stated in that proviso that, under certain circumstances, the American fishermen can enter bays, by which is evidently meant that they may, under these circumstances, pass the sea-line which forms the entrance to the bay.”

According to this construction, so undefined and indefinite, the bays of Fundy and Chaleur, or any extent of the sea lying between distant headlands, may be reserved under the name of bay, for the exclusive use of British fishermen.

The United States are firmly opposed to such a construction, believing it to be totally unauthorized by the language or intention of the convention, or by the right acquired by usage. In the opinion of this government, repeatedly announced at different periods, the American fishermen have a clear right to the use of the fishing grounds lying off the provincial coasts, whether in the main ocean or in the inland seas, provided they do not approach within three marine miles of such coasts, or of the entrance to any bay, creek, or harbor not more than six miles in width; and to such bays only does the renunciatory clause in the first article apply. They object to the British construction on the ground that, if such arms of the sea as the bays of Fundy and Chaleur, or such curves in the coast as the bay of Miramichi, or such part of the sea included between headlands as the wide indentation on the coast of Cape Breton, lying between Cape North and Cape Percy, were the “bays” renounced, there would be an inconsistency if not a clear contradiction in the very next sentence of the article, which authorizes American fishermen “to enter such bays for the purpose of shelter and of repairing damages.” It can hardly be contended that “shelter” can be obtained in the bay of Fundy, an arm of the sea forty miles wide and one hundred in length, or that either shelter, wood, or water can be obtained, or damages repaired, in the curve of the coast between the headlands of St. Escumenac and Blackland Point, designated on the chart as the bay of Miramichi. It is objected to, also, for the reason that it would permit the drawing of lines anywhere in the gulf or on the coast from headland to headland, any one of which could be made to embrace, at one sweep, many bays, creeks, and harbors, besides a portion of the high seas, and from which the American fishermen could be kept an indefinite distance, and be thereby driven from the fishing grounds.

Moreover, it is believed that while the British construction is not necessary to secure to the people of the provinces the in-shore fisheries, or to protect their rights of property, or their territorial jurisdiction, all of which are amply secured by the three marine miles restriction, it would materially restrict the full enjoyment of the right which we possessed before the Revolution, which was acknowledged in the definitive treaty of peace, which was not affected by the treaty of Ghent, and which, according to the decision of Great Britain, expressed in the correspondence which preceded the convention, was not abrogated by the war of 1812. That right is “to take fish” of any kind “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.” No construction liable to such indefinite extension or application can be correct or be allowed.

In 1845 her Majesty’s government receded from the above position, so far as the bay of Fundy is concerned, and from that date our right of fishery in that bay has not been a matter of dispute. It is now open to American fishermen, to be used in the same manner as the more open sea; provided, however, that they do not take fish within three marine miles of the coasts or of the entrance to any bay, creek, or harbor of Nova Scotia or New Brunswick, between which two provinces that arm of the sea extends.

2. As to the restrictions imposed by the colonies to prevent the privileges of shelter, &c., from being abused by American fishermen.

The fishermen of the United States are frequently compelled by rough weather, or by injuries to their vessels received in a gale, or in consequence of collision or other accident, to seek the nearest port for shelter and repairs. And it is also necessary at stated intervals, while they are engaged during the summer and fall in following their avocation, that they should take on board a resupply of wood and water; and for either of these purposes they have the right, so long as the convention continues in force, to resort to the bays and harbors of the different provinces.

Some of the colonial laws, especially those of Nova Scotia, enacted to prevent the abuse of these privileges, are of such a stringent character as to almost annul the right, or make it at least hazardous for American fishermen to attempt to enjoy it. Seizures are made on the slightest suspicion, or on false pretences or charges; heavy bonds are required before suit can be instituted to recover; the owner of the vessel must bring the charges, and, if unsuccessful, he is mulcted in treble costs, besides the loss of vessel and cargo.

In this connection it must be borne in mind that a proposition was made to introduce into the convention a stipulation that “it shall not he lawful for the vessels of the United States, engaged in the said fishery, to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of the fishery or support of the fishermen,” &c., and that this proposed stipulation having been objected to by Messrs. Gallatin and Rush, on the ground that it “would expose our fishermen to endless vexations,” it was withdrawn by the British plenipotentiaries.

Such was the condition of the controversy between the United States and Great Britain as to the limits of our right of fishery on the provincial coasts, and such the severe restrictions, amounting almost to prohibition, on the privilege of entering bays and harbors for shelter, wood, or water, previous to 1854, the date of the late reciprocity treaty with Great Britain. That treaty having expired on the 17th of March last, the American fishermen must fall back upon their rights, as thus explainer, and as heretofore enjoyed.

I have the honor to be, very respectfully, your obedient servant,