No. 302.
Mr. Evarts
to Mr. Lowell.
Washington, February 4, 1881.
Sir: The communication from Her Britannic Majesty’s secretary of state for foreign affairs, Lord Granville, of October 27, 1880, respecting the disturbance which occurred at Fortune Bay on the 6th of January, 1878, was duly received in your dispatch, No. 81, of October 28, 1880.
As the separation of the questions raised by that occurrence and the method of their solution were general suggestions on the part of Her Britannic Majesty’s Government, I had naturally supposed that this dispatch would have been followed by such definite propositions as this government could either accept or decline, the more so as I had (on June 12, 1880), in reply to your telegraphic report of a conversation with Lord Granville, authorized you to say that—
The President will be quite ready to entertain any considerations which may he presented to the Secretary of State to relieve the question of the fisheries from its present difficulties.
If, however, as circumstances would seem to indicate, I am to consider this communication as a preliminary inquiry from Lord Granville for the purpose of learning whether such suggestion would be so favorably received by this government as to justify the opening of direct negotiation, it becomes my duty to put you in possession of the impressions which this inquiry has made upon the Government of the United States.
As I understand the purport of Lord Granville’s communication, Her Britannic Majesty’s Government desires to arrange the compensation due the United States fishermen for the disturbances at Fortune Bay, without the formal consideration or decision of any questions of treaty construction which the facts of that disturbance might seem to raise, resting the right of compensation solely upon the unlawful violence exercised by British subjects in Newfoundland.
The facts in this case are not complicated, and the calculations are simple. The United States Government does not see in its present condition or character sufficient grounds to require any very elaborate method of decision, such, as a commission, or the necessity for any protracted inquiry. If Her Britannic Majesty’s Government will propose the submission of the computation of damages to the summary award of the Secretary of State of the United States and Her Britannic Majesty’s representative at Washington (this function to be exercised either directly or by such delegation as may seem to them judicious), the Government of the United States will accept the proposition and close this controversy on the basis of that award.
But in signifying to Her Britannic Majesty’s Government the willingness of the United States to accede to such a proposition, you will carefully guard against any admission of the correctness of those views of our treaty rights which are expressed, either explicitly or by implication, in Lord Granville’s communication of October 29, 1880.
The views of this government upon the proper construction of the rights of fishery guaranteed by the treaty of Washington have been fully expressed in my former dispatches, and no reasons have been furnished to induce a change of opinion. The delay in the settlement of the Fortune Bay case has been already too long protracted. It has provoked a not unnatural feeling of irritation among the fishermen of the United States at what they conceive to be a persistent denial of their treaty rights, while it is to be feared that it has encouraged among the provincial fishermen the idea that their forcible resistance to the exercise of these rights is not without justification in their local law and the construction which Her Britannic Majesty’s Government is supposed to have placed upon the provisions of the treaty.
It is now three years since twenty-two vessels belonging to the United States, and engaged in what by them and their government was considered a lawful industry, were forcibly driven from Fortune Bay under circumstances of great provocation and at very serious pecuniary loss. And this occurred at the very time when, under the award of the Halifax commission, the Government of the United States was about paying to Her Britannic Majesty’s Government a very large amount for the privilege of the exercise of this industry by these fishermen.
In March of the same year, 1878, this very grave occurrence of January was brought to the attention of the British Government in the confident hope that compensation would be promptly made for the losses caused by what the United States Government was willing to believe was a local misconstruction of the treaty or a temporary and, from ignorance perhaps, an excusable popular excitement.
[Page 501]It is unnecessary to do more than recall to your attention the long and unsatisfactory discussion which followed the presentation of this claim, and especially the fact that in its progress the Government of the United States was compelled to express with emphatic distinctness the impossibility of accepting the subordination of the treaty rights to the provisions of local legislation, which was apparently put forward by Her Majesty’s Government as a sufficient ground for the rejection of the claim. And it was not until April, 1880 (a delay of two years, during which the importance of an early settlement was urged upon Her Majesty’s Government), that, after what this government understood and accepted at least as a satisfactory modification of the assumption, we were informed by Lord Salisbury that—
Her Majesty’s Government are of opinion that, under the circumstances of the case as at present within their knowledge, the claim advanced by the United States fishermen for compensation on account of the losses stated to have been sustained by them on the occasion in question is one which should not be entertained.
This decision of Her Majesty’s Government terminated any further discussion, and the Government of the United States found itself compelled to protect the interests of its citizens by such methods as might commend themselves to its judgment. In addition to the Halifax award which we had paid for the privileges and rights the exercise of which is now denied our citizens, we were also continuously paying, in the shape of a remission of duties, some $300,000 per annum for this abortive right. Thus forced into position of antagonism which it profoundly regretted, the Government of the United States, was about to take such action as would at least suspend this annual payment until the two governments were in accord upon the construction of the treaty, when Her Majesty’s Government, through the United States minister in London, suggested, June 9, 1880, that the consideration of the subject be resumed between the two governments, and that in such consideration, the two questions of the interpretation of the treaty and the attack upon the American fishermen be separated. To that suggestion I replied June 12, 1880, communicating my great gratification at the friendly disposition of the British cabinet, and saying that the President would be quite ready to entertain any considerations which may be presented to the Secretary of State to relieve the question of the fisheries from its present difficulties.
On October 27, 1880, Lord Granville addressed you the communication which is the subject of this dispatch. I regret to find in this communication a disposition to restrict a liberal compensation for an acknowleged wrong by limitations of the fishing rights accorded by the treaty, to which this government cannot consent. The use of the strand, not as the basis of an independent fishing, but as auxiliary to the use of the seine in these waters, where seine-fishing is the only possible mode of taking herring, has been maintained by this government in my former dispatches, and would seem to be justified by the explicit declaration of Her Majesty’s Government in the “case” submitted by them to the Halifax commission, in which referring to the use of the shores, it is affirmed “without such permission the practical use of the inshore fisheries was impossible.” But as Lord Granville distinctly refers the propriety and justice of these limitations to further negotiations, I will not now discuss them, reserving what I deem it right to say for a future dispatch in reference to the second of his lordship’s suggestions.
I have recalled to your attention the history of the Fortune Bay outrage in order that you may express to Her Britannic Majesty’s Government the great disappointment which this long delay in its settle [Page 502] merit has occasioned. The circumstances under which it occurred were such as to induce this government to anticipate prompt satisfaction, and it is impossible not to feel that the course which the British Government has thought fit to pursue has seriously affected public opinion as to the worth of the treaty which it was hoped by both countries had promoted an amicable solution of long-standing difficulties.
The United States government cannot feel that justice has been done its citizens in the protracted discussion which this occurrence has provoked, and while perfectly willing to endeavor, in concert with Her Britannic Majesty’s Government, to find some practical and friendly solution of the differences of construction as to the treaty provisions which their application seems to have developed, this government cannot consent that pending such discussion, its citizens shall be exposed to the indignity and loss which have been imposed upon them by these and like occurrences.
You will intimate courteously, but firmly, to Lord Granville that in accepting what we understand to be the proposition of Her Majesty’s Government, it is understood as carrying the idea that the settlement suggested will be put in course of immediate execution, and that the determination of the amount of compensation will not be formally confined by any limitation arising from any construction of the treaty which may be matter of difference between the two governments.
So useful to the great interests involved do I regard the prompt settlement of this incident in our fishery relations, that I should be glad to hear by telegraph that Lord Granville concurs in the simple form of award which I have proposed.
In imparting to the British Government these views you may, in your discretion, read this dispatch to Lord Granville, and if he desires it leave him a copy.
I am, &c.,