No. 201.
Mr. Jackson to Mr. Evarts.
December 5, 1877. (Received December 15.)
Sir: The Halifax Fishery Commission, as heretofore announced, have concluded their labors, and a majority of the commissioners—the United [Page 335] States commissoner dissenting—have decided that the sum of $5,500,000 in gold be paid by the Government of the United States to the government of Her Britannic Majesty in accordance with the provisions of the Treaty of Washington.
I assume that the distinguished gentlemen who composed the commission each and all, acted under a high sense of official responsibility and public duty.
I shall therefore respectfully call your attention to such questions only as naturally arise from a consideration of the action taken by the different members of the commission, and of the unsettled position in which such action has left the whole subject of the fisheries, and the various and important matters in connection with them, which are and have so long been in controversy between the two countries.
- 1st.
- No power having been delegated by the Treaty of Washington to a majority of the commissioners to make an award, no action of such majority can bind either the Government of the United States or Great Britain.
- 2d.
- Both governments having entered into the arbitration with a full knowledge and understanding that the Treaty did not—as in the case of the Geneva arbitration—delegate to a majority of the commissioners the power to make an award, neither party can justly complain of the other for treating such an award as invalid.
Assuming its invalidity the question arises, Shall the Government of the United States waive its legal rights, and as a matter of grace and favor to the other contracting party pay to it the sum of $5,500,000 without any equivalent therefor?
In my “confidential” dispatch of the 18th of June last, before any evidence was adduced before the commission, I stated that “the case” presented by Canada “makes no discrimination between the inshore and deep-sea fisheries, which discrimination is a vital element in the controversy between the two countries.”
Canada practically claimed compensation for both, on the ground that the use of the one was absolutely necessary for the successful prosecution of the other.
The statistics submitted to the commission, and the investigation there made by the able agents and counsel of the United States and Great Britain, in relation to the inshore and deep-sea fisheries, only tended to confirm statements and representations made in official reports submitted by me to the Department of State prior to the adoption of the Treaty of Washington.
The inshore fisheries pursued by American fishermen in British waters consist, as is well known, chiefly of the mackerel fishery. The whole catch of mackerel by them for the last five years in such waters does not amount, as shown by competent evidence, to one-third of the proportionate sum awarded for those years; and if compensation, for which there is no authority either in law or equity, be included also for the deep-sea fisheries for the same period, the amount declared to be awarded is unwarranted and excessive.
I am aware of no recognized rule of evidence, or of no mode of computation, by which the decision could have been arrived at without including compensation for the deep-sea as well as the inshore fisheries.
Thus, while the treaty of 1818 limits the exclusive jurisdiction of Great Britain to three miles from the coasts and shores of the British North American provinces, the decision of a majority of the commissioners practically attempts to enforce the renounced and exploded doctrine of the dominion of Great Britain over the adjacent seas.
[Page 336]I have no design in these remarks to undervalue an important industry pursued by American fishermen off the coasts of the British North American provinces, and especially on the Grand Banks, which, for a century, has afforded an illustration of the enterprise of our people, and of the skill, courage, and intrepidity of our hardy seamen.
I aim only to show—what must be obvious to all who have examined the subject—that this important industry consists mainly of the ocean or deep-sea fisheries, which are the common property of all nations, and are pursued by American fishermen not by the sufferance, or through the favor, of any foreign power, but as a lawful right derived from the bounty of the Creator.
The decision of a majority of the arbitrators cannot, I think, be regarded as settling, in any manner, controverted questions, or as determining the relative value of the reciprocal concessions made by the two governments under the treaty.
The weight of testimony adduced, it appears to me, establishes the proposition that “free fish and free fisheries” are a fair exchange of equivalents.
That such was the opinion of the people of the province of Nova Scotia—a province whose fisheries constitute half of the fisheries of Canada—is shown by the fact that after the adoption of the reciprocity treaty in 1867, a committee of the Nova Scotia legislature earnestly recommended “that instead of levying a pecuniary license fee, steps be taken to arrange, if practicable, with the American Government for the admission of the products of colonial fisheries into the American market free, or under a more reduced tariff than that now imposed.”
Other questions of great importance heretofore in dispute, and sources of irritation between the two countries in relation to the fisheries, still remain either in abeyance or unadjusted. Among these are:
- 1st.
- In relation to bait and supplies.
- 2d.
- Transhipment of cargoes.
- 3d.
- Headlands.
In regard to bait and supplies the Treaty of Washington expressly confers no new rights upon citizens of the United States.
Independently of the Treaty they possess the right by the comity and usage of all commercial nations to purchase in colonial ports all necessary supplies—whether bait, ice, or provisions—for the prosecution of a lawful fishing voyage.
Any legislation which would deprive them of that right would be exceptional and hostile in its character, and not only in violation of the comity and usage of nations but against the avowed policy of the British Empire, as emphatically declared by Earl Kimberly.
The deep-sea fisheries are not, and never have been, the subject of treaty regulations or restrictions. Such fisheries being open to all the world, the purchase of supplies for their prosecution—which benefits the Canadian trader who sells them, as much as the American fisherman who buys them—is as legitimate a branch of trade and commerce as any other existing between the two countries.
The concessions of the Treaty have placed the prosecution of the inshore fisheries upon the same footing.
It follows, then, that while in a certain sense the right to carry on such trade and commerce is held on sufferance and may be prohibited, yet any legislation tending to such prohibition, being a departure from the universal practice of friendly nations, would justify retaliatory measures on the part of the government whose citizens were subjected to such oppressive restrictions.
[Page 337]As to transhipment of cargoes, if the right is not incidental to the rights expressly conferred by the Treaty, its prohibition by Canada, as a commercial regulation beneficial to all parties, would likewise be an arbitrary and unfriendly exercise of power naturally resulting in measures by the United States of a similar character injuriously affecting Canadian trade.
Headlands.—Although this question is now, and has been for a quarter of a century, held in abeyance—and perhaps hereafter may continue to be so held—yet it has never been finally settled.
Experience has shown that as a practical question it does not possess the importance originally attached to it; but the contention of the counsel for the British Government before the fishery commission—so entirely at variance with the views uniformly and decidedly held by the Government of the United States—still leaves this question subject to future controversy.
To permit the so-called award to go unchallenged, would, in my judgment, by a tacit acquiescence in extravagant and unreasonable claims for compensation, be placing the United States in a false position; and instead of hastening would retard the permanent adjustment on a satisfactory basis of outstanding questions, the continued agitation of which is calculated to imperil the interests of two great countries.
I have thus sought fairly and dispassionately to present the facts in the case to your mature and impartial consideration.
I have no desire to do injustice to Canada, or to relieve the United States from the performance of any duties, or the fulfillment of any obligations arising under the Treaty of Washington.
On the contrary it is my firm conviction that the best interests and lasting peace and friendship of both countries will be more effectually promoted by a calm “review of the situation” and by both availing themselves of the opportunity now afforded for a full and amicable settlement, either by treaty or otherwise, upon terms mutually advantageous, of all subjects of difference between them in connection with the fisheries, than by the unconditional payment by the United States Government of an invalid award.
I have, &c.,