ARTICLE IX.-THE TREATY OF WASHINGTON IN 1871.

I.

THE treaty concluded at Washington, May 8, 1871, between the United States and Great Britain, has had the effect intended, of removing for the time all causes of ill-feeling and of settling all disputes between the two countries. Those parts of it which provided for tribunals of arbitration have been carried out and decisions have been rendered. Those parts which were to go into operation by the immediate force of the treaty itself, are now subjected to the trial of time; and for other portions a period of ten years and more must elapse before the parties will be called upon to decide upon the termination of those articles, their continuance, or their modification. Still another portion of the treaty-the articles relating to claims upon the two governments by private persons arising out of acts committed during the war-is now in the hands of Commissioners sitting at Washington, who are from time to time deciding upon one claim after another. And thus to the great joy of all men, especially of the Peace Society, and of the government which has carried us through the straits, the ship of state lies in a quiet harbor under serene skies. Nobody complains on this side of the water, unless it be the fishermen of Marblehead; and if on the other side John Bull grumbles and makes wry faces, and thinks that somebody, he cannot tell exactly who, has overreached him, or that the Yankees have been too sharp for him; still he is glad, we are sure, that the difficulties are over, and that he will have only to put his hands into his pockets for a much smaller sum than king Theodore of Abyssinia cost him.

At this point in the workings of the treaty, it may not be unimportant in itself, nor without interest to the readers of the New Englander, if we give a brief review of the several parts of which it consists, and of their relations to public law. We should have been glad to make a commencement with the arbitrations at Geneva and at Berlin, but the documents justifying

the decisions on the points there submitted have not been accessible in time for the present number of the New Englander. We therefore confine ourselves at present to the new adjustment of the fishery question in the treaty, and to other connected points, such as the free navigation of certain rivers and the liberty of transit through territory of one of the two powers into that of the other. It was from the fisheries on the coasts of British America that the treaty took its origin. Our survey may aptly start from the same point; but it is necessary before we can make a proper estimate of this part of the treaty to explain the situation in which the countries had previously stood to one another in that particular.

Before the war of independence the thirteen colonies had equal rights with other English subjects, of fishing, of drying and of curing fish, on the coasts where fish most abounded. In fact, the fishermen of the more northerly colonies were second to no others in their enterprise, and had, we believe, discovered some fishing grounds that were unknown before. As early as 1639, in the colony of Massachusetts, encouragement was afforded to this branch of industry, by freeing from duties and taxes all capital employed in the catching and transporting of fish. The whale fishery began at Nantucket in 1690, and must have been considerable in 1730, since according to Dr. Holmes, in his American annals, there arrived that year "in England from those coasts, about the month of July, 154 tons of train and whale oil and 9,200 of whalebone." In the war which ended with the peace of Ryswyck in 1697, the colonists of New England were the more ready to resist the aggressions of France, from the fear that the fisheries would come under the control of that power. We need only refer to the splendid passage in Burke's speech on conciliation with America, delivered March 22, 1775, less than thirty days before the battle of Lexington, in which he calls on parliament to "look at the manner in which the people of New England have of late carried on the whale fishery." But the fisheries for cod and mackerel in the neighboring seas were of perhaps much more importance, and in these occupations were trained those who in the war of the revolution could scour the seas to capture the merchant vessels of Great Britain.

In the treaty by which the mother country acknowledged the independence of the colonies, Sept. 3, 1783, the right of fishing in British waters was conceded in the following words:

"It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all other Banks of Newfoundland, and at all other places in the sea, where the inhabitants of both countries used at any time to fish; and also that the inhabitants of the United States 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; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors and creeks of Nova Scotia, Magdalen islands, and Labrador, so long as the same shall remain unsettled; but, so soon as the same or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground."

Our fisheries in British North American waters were regulated by this treaty until the war of 1812-1815. The treaty of Ghent, which was ratified Feb. 17 of the last mentioned year, said nothing about the fisheries, and the British negotiators announced to the American that their government did not intend to renew gratuitously the permission, conceded by the treaty of 1783, of fishing on the coasts of British America. The negotiators from the United States, in reply, declared that no renewal was necessary, arguing this from the nature of the rights and liberties in question, as well as from the peculiar character of that treaty itself. Mr. Adams, the Ambassador in London, argued this question on the American side at length with the British Secretary of State, but without success. The arguments are given by Dr. Wheaton in his elements of International law, §§ 271-273. They were, in substance, that the rights and liberties in question had always belonged to the people of the colonies now constituting the United States, and that Great Britain must have intended in 1783 to admit the continued existence of these rights, otherwise a compensation would have been demanded for the concession. It is impossible to admit the validity of Mr. Adams' line of argument, and it is not unlikely that he felt that he was defending an untenable position. There is nothing in having been once connected with Great Britain that gave us more rights within her waters,

after our separation, than other nations enjoyed. We did not acquire the right by long usage, as nations sometimes tacitly gain the right of transit over the territory of other nations, for we had it only as British subjects. Nor could it be shown that this particular right or liberty was in its nature perpetual. Some rights are confessedly perpetual. Such are those which are expressly declared by the contracting parties to have this character; such again are those which come into activity through a state of war; such, too, are those which are implied in the act of treating with a state whose existence has been already acknowledged. It would have been idle to repeat the recognition of our independence and national existence in 1815, which had been acknowledged in 1783. But the right of catching and drying fish within territory under British jurisdiction was not of this description. This was a species of industry which the sovereign of the soil could permit or refuse to an alien, as he pleased. Even when we were British subjects, it was within the competence of Parliament to give the exclusive right of fishing along the coasts to the inhabitants of the colonies or provinces to which the coast belonged; and still more might the delicate rights of drying and curing on the soil be placed under restrictions. But while we say this we do not admit that Great Britain could in justice keep our seamen from fishing on the Grand Bank or any other bank distant more than a marine league from land. Such places, according to the soundest views of international law, cannot be appropriated. And perhaps the treaty of 1783 intended to say as much when it made a distinction between the "right to take fish on the Grand Bank" and "at all other places in the sea," etc., and the "liberty to take fish on the coast of Newfoundland," etc.

For more than three years after the treaty of Ghent, our fishermen had no liberty, under arrangements with Great Britain, to pursue their employment on the coasts of British America. Meanwhile the project of a treaty was submitted to our government by the British minister at Washington; but as it granted rights within a restricted sphere, and required from the United States renunciation of the right of fishing elsewhere, it was not accepted. But in 1818 a convention was completed, under which the fisheries were regulated for thirty-six years,

or until the reciprocity treaty of 1854. This convention granted forever to the inhabitants of the United States the liberty to take fish on the southern coast of Newfoundland from the Rameau islands to Cape Ray, and on the western and northern coasts from the same cape to the Quirpon islands; on the shores of the Magdalen islands; and on the coasts, bays, harbors, and creeks from Mount Jolli upon the southern coast of Labrador, to and through the Straits of Belleisle, and thence indefinitely on the northward coasts, without prejudice, however, to the exclusive rights of the Hudson's Bay Company. The liberty of curing and drying was confined to the unsettled bays, harbors and creeks of the southern part of the coast of Newfoundland and to the coast of Labrador; but as soon as any portion should be settled, the privilege was to cease, unless previous agreement should be made with the inhabitants, proprietors, or possessors of the ground. On their part the United States renounced forever any liberty formerly enjoyed or claimed of taking, drying, or curing fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of the British dominions in America, not included in these limits. But the American fishermen were admitted to enter such bays or harbors for the purpose of shelter and of repairing damages there, of purchasing wood and obtaining water, and for such purposes only. And they might be placed under such restrictions as might be necessary to present their taking, drying, or curing fish in such places, or otherwise abusing the privileges granted to them in the convention.

It is obvious that a treaty of this kind could not fail to be broken. Fishermen would not know where the line of three marine miles ran by which they must be separated from the shore; they would be apt to go into bays or harbors for other purposes besides those mentioned in the treaty; and they might not respect the limits of coast within which their operations were to be confined. One vessel was condemned for returning to a harbor, after being warned off, and in moderate weather; one or two were seized and rescued; harsh laws were passed by the legislature of the province of Nova Scotia against vessels hovering within three marine miles of coasts or harbors; various questions were started between the governments in respect