AWARDS BY THE HON. JOHN HAMILTON GRAY,
UMPIRE UNDER THE RECIPROCITY TREATY.*
By the 3rd Article of the Treaty of 1783 between Great Britain and the United States, it was stipulated—“ That the people of the United States should continue to enjoy, unmolested, the right to take Fish of every 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 theretofore to fish. That the inhabitants of the United States shall have liberty to take Fish of every kind, on such parts of the coast of Newfoundland as British Fishermen shall use (but not to cure or dry them on the 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, harbours and creeks in Nova Scotia, Magdalen Islands and Labrador, so long as the same shall remain unsettled ; but as 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.” The War of 1814 between Great Britain and the United States, was held by the former to have abrogated this stipulation, and the declaration of peace, and Treaty of Ghent, which subsequently followed, were entirely silent on the point. This silence was intentional—during the negotiations the question had been expressly raised, and the claim of the United States to the continued enjoyment of the rights secured by that stipulation denied. By the Convention of the 20th October, 1818, the privilege of the Fisheries within certain limits was again conceded to the United States—and the United States, by that Convention, “ renounced any liberty before enjoyed or claimed by them or their inhabitants, to take, dry, or cure Fish, on, or within three marine miles of any of the coasts, bays, creeks, or harbours of any of the British dominions of America, not included within that part of the Southern Coast of Newfoundland, extending from Cape Ray to the Rameau Islands ; on the Western and Northern Coast of Newfoundland, from Cape Ray to the Quirpon Islands—on the shores of the Magdalen Islands—and also on the coasts, bays, harbours and creeks, from Mount Joly on the South of Labrador, to and through the Straits of Belleisle, and thence Northerly along the coast.” This
*Reproduced from Journal of the Assembly (Newfoundland) 1863, App. 1239-1273
concession was to be without prejudice to any of the exclusive rights of the Hudson Bay Company, and the American Fishermen were also to have the liberty, for ever, to dry and cure Fish in any of the unsettled bays, harbours and creeks of the Southern part of the Coast of Newfoundland, therein described, and of the Coast of Labrador, but so soon as the same or any portion thereof should be settled, it should not be lawful for the said Fishermen to dry or cure Fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground ; and was further subject to a proviso, that the American Fishermen should be permitted to enter the bays and harbours in His Britannic Majesty's dominions in America not included within those limits, “ 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 should be under such restrictions as might be necessary to prevent their taking, drying, or curing Fish therein, or in any other manner whatever abusing the privileges thereby reserved to them.”
A difference arose between the two countries, Great Britain contending that the prescribed limits of “ three marine miles,” the line of exclusion, should be measured from headland to headland, while the United States Government contended it should be measured from the interior of the bays and the sinuosities of the coasts. The mutual enforcement of these positions led to further misunderstandings between the two countries.”
To do away with the cause of these misunderstandings, and to remove all grounds of future embroilment, by the Treaty of Washington, June 5th, 1854, it was, by Article the 1st, agreed :—“That in addition to the liberty secured to the United States Fishermen by the above mentioned Convention of October 20th, 1818, of taking, curing, and drying Fish on certain coasts of the British North American Colonies, therein defined,—the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty to take Fish of every kind (except shell fish) on the sea coasts and shores, and in the bays, harbours and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward Island, and of the several Islands thereunto adjacent, without being restricted to any distance from the shore ; with permission to land upon the coast and shores of those Colonies, and the Islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided, that in so doing, they do not interfere with the rights of private property, or with British Fishermen in the peaceable use of any parts of the said Coast, in their occupancy for the same purpose.
“ It is understood that the above mentioned liberty applies solely to the Sea Fishery, and that the Salmon and Shad Fisheries, and all Fisheries in Rivers, and the mouths of Rivers, are hereby reserved exclusively for British Fishermen.”
By Article the 2nd :— “It is agreed by the high contracting parties, that British subjects shall have, in common with the citizens of the United States, the liberty to take Fish of every kind (except shell fish) on the Eastern sea-coasts and shores of the United States, North of the 36th parallel of North Latitude, and on the shores of the several Islands thereunto adjacent, and in the bays, harbours and creeks of the said sea-coasts, and shores of the said United States, and of the said Islands, without being restricted to any distance from the shore, with permission to land upon the said coasts of the United States, and of the Islands aforesaid, for the purpose of drying their nets and
curing their Fish. Provided that in so doing they do not interfere with the rights of private property, or with the Fishermen of the United States, in the peaceable use of any part of the said coasts in their occupancy for the same purpose.”
“ It is understood that the above mentioned liberty applies solely to the Sea Fishery ; and that the Salmon and Shad Fisheries, and all Fisheries in Rivers, and the mouths of Rivers, are hereby reserved exclusively for Fishermen of the United States.”
By the first Article it was also further agreed :— “ That in order to prevent or settle any dispute as to the places to which the reservation of exclusive right to British Fishermen contained in this Article, and that of Fishermen of the United States, contained in the second Article, should apply—each of the high contracting parties, on the application of either to the other, shall, within six months thereafter, appoint a Commissioner. The said Commissioners, before proceeding to any business, shall make and subscribe a solemn declaration that they will impartially and carefully examine and decide to the best of their judgment, and according to justice and equity, without fear, favour, or affection, to their own country, upon all such places as are intended to be reserved and excluded from the common liberty of fishing under the said two articles.” In cases of disagreement, provision is made for an umpire, and the “High contracting parties solemnly engage to consider the decision of the Commissioners conjointly, or of the arbitrator or umpire, as the case may be, absolutely final and conclusive in each case decided upon by them, or him, respectively.”
By article 5, the Treaty was to “ Take effect as soon as the laws required to carry it into operation should be passed by the Imperial Parliament of Great Britain, and by the Provincial Parliaments of those of the British North American Colonies which are affected by this Treaty, on the one hand, and by the Congress of the United States on the other.”
It is understood, that in making this last named Treaty, neither Government admitted itself to have been in error, with reference to the position it had before maintained. The Treaty was emphatically an arrangement for the
future. “ The Government of the United States being equally desirous with
Her Majesty the Queen of Great Britain (as declared in the preamble)” to
avoid further misunderstanding between their respective citizens, and subjects,
in regard to the extent of the right of fishing on the coasts of British North America, secured to each by Article I, of a Convention between the United States and Great Britain, signed at London on the 20th day of October, 1818.
The Commissioners appointed under the provisions of this Treaty, proceeded to examine and decide upon “The places intended to be reserved and excluded from the common liberty of fishing ” under the first and second Articles. They differed in opinion as to the places hereinafter named, and it has been submitted to me, as the Umpire under the provisions of that Treaty, to determine those differences.
The copies of the Records of disagreement between the Commissioners, transmitted to me, are as follows :
RECORD, NO. 1.
We, the undersigned, Commissioners respectively, on the part of Great Britain and the United States, under the Reciprocity Treaty concluded and signed at Washington, on the 5th day of June, A.D. 1854, having met at Halifax, in the Province of Nova Scotia, on the 27th day of August, A.D. 1855, thence proceeded to sea in the British Brigantine Halifax, and passing through the Strait of Canso, first examined the River Buctouche, in the Province of New Brunswick.
“ A survey was made of the mouth of the said River Buctouche by the Surveyors attached to the Commission, George H. Perley, on the part of Great Britain, and Richard D. Cutts, on the part of the United States, a plan of which marked No. 1, and signed by the Commissioners respectively, will be found in Record Book No. 2.
“ We, the Commissioners are unable to agree upon a line defining the mouth of said River.”
“ Her Majesty's Commissioner claims that a line from Glover's Point to the Southern extremity of the Sand Bar, (marked in red on the aforesaid Plan No. 1), designates the mouth of the said River Buctouche ; the United States Commissioner claims that a line from Chapel point, bearing south, 4 West, (magnetic,) marked in blue on the aforesaid Plan, No. 1. designates the mouth of the said River ; and of this disagreement record is here made accordingly.
“ Dated at Buctouche, in the Province of New Brunswick, this 19th day of September, A.D. 1856.
(Signed,) M. H. PERLEY, H.M. Commissioner.
(Signed,) G. G. CUSHMAN, U.S. Commissioner.”
RECORD NO. 2.
“ We, the undersigned Commissioners respectively on the part of Great Britain and the United States, under the Reciprocity Treaty, concluded and signed at Washington on the 5th day of June, A.D. 1854, having examined the River Miramichi, in the Province of New Brunswick, are unable to agree upon a line defining the mouth of said River.
“ Her Majesty's Commissioner claims that a line connecting Fox and Portage Islands, marked in red, Plan No. 2, Record Book No. 2, designates the mouth of the Miramichi River ; the United States Commissioner claims, that a line from Spit Point to Moody Point, marked in blue, Plan No. 2, Record Book No. 2, designates the mouth of said River, and of this disagreement record is here made accordingly.
“ Dated at Chatham, on the Miramichi, in the Province of New Brunswick on this 27th day of September, A.D. 1855.”
(Signed,) M. H. PERLEY, H.M. Commissioner.
(Signed,) G. G. CUSHMAN, U.S. Commissioner,”
RECORD NO. 9.
“ We, the undersigned, Commissioners under the Reciprocity Treaty between Great Britain and the United States, signed at Washington on the 5th day of June, A.D., 1854, having examined the Elliot River, emptying into Hilsborough Bay, on the Coast of Prince Edward Island, one of the British North American Colonies, Do hereby agree and decide, that a line bearing North 85° East, (magnetic) drawn from Block House Point to Sea Trout Point, as shown on Plan No. 7, Record Book No. 2, shall mark the mouth, or outer limit, of the said Elliot River ; and that all the waters within, or to the Northward of such line, shall be reserved and excluded from the common right of fishing therein, under the first and second articles of the Treaty aforesaid.
“ Her Majesty's Commissioner, in marking the above line, claims the same as defining the joint mouth of the Elliot, York, and Hillsborough Rivers.
“ The United States Commissioner agrees to the above line as the mouth of the Elliot River only, not recognizing or acknowledging any other River.
“ Dated at Bangor, in the State of Maine, United States, this 27th day of September, A.D. 1856.
(Signed,) M. H. PERLEY, H.M. Commissioner.
(Signed,) G. G. CUSHMAN, U.S. Commissioner,”