Twenty Years of Congress, Volume 2 (of 2)

J >> James Gillespie Blaine >> Twenty Years of Congress, Volume 2 (of 2)

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Within four years of this time a treaty was negotiated and ratified,
which is altogether the most inexplicable in our diplomatic history.
The war just concluded with Great Britain had reflected the highest
honor upon our navy; while on land we had demonstrated, if not the
absolute impossibility, certainly the serious difficulty and danger,
of an invasion of our soil by any foreign power. We had risen greatly
in the estimation of the world as to our capacity for war, and we had
learned the especial importance of maintaining the fisheries as the
nursery of our sailors. The State Department was under the direction
of John Quincy Adams, who, above all statesmen of his day, was supposed
to appreciate the value of the fisheries and who had stubbornly
refused at Ghent to consent to any diminution of our fishing-rights
even if the alternative should be the continuation of the war. Yet
on the 20th of October, 1818, a treaty was concluded at London,
containing as its first and most important provision an absolute
surrender of some of our most valuable rights in the fisheries. The
negotiation was conducted by Albert Gallatin and Richard Rush, men of
established reputation for diplomatic ability and patriotic zeal. The
history of the transaction is meagre. A brief and most unsatisfactory
correspondence contains all that we know in regard to it. Neither in
the minute and important diary of Mr. Adams, nor in the private
letters, as published, of Mr. Gallatin and Mr. Rush, is there the
slightest indication of any reason for recommending, or any necessity
for conceding, the treaty.

By reference to the Third Article of the treaty of 1782, already
quoted, it will be seen that the rights of the citizens of the United
States were recognized; _first_, to take fish of every kind on the
Great Bank, and on all the other banks of Newfoundland, and also in the
Gulf of St. Lawrence, and at other places in the sea _where the
inhabitants of both countries used at any time before the treaty to
fish; second_, to take fish of every kind on such part of the coast
of Newfoundland as British fishermen should use, but not to dry or cure
the same on that island; _third_, to take fish of every kind on the
coasts, bays, and creeks of all other of his Britannic Majesty's
dominions in America; _fourth_, to dry and cure fish in any of the
unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands,
and Labrador. By the provisions of the First Article of the treaty of
1818, the right to take fish on the coast of Newfoundland and Labrador
was limited to certain portions of the coast, _without prejudice,
however, to any of the exclusive rights of the Hudson Bay Company;
second_, the right to dry and cure fish was granted on the limited
portions of the coast of Newfoundland and Labrador, so long as they
remained unsettled; _third_, for this privilege of drying and curing
fish, the United States "_renounced forever_ and liberty theretofore
enjoyed or claimed by the inhabitants thereof to take, dry, or cure
fish on 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 limits so described." Of this extraordinary
renunciation Mr. Rush wrote, many years after: "We [Mr. Gallatin and
himself] inserted the clause of renunciation; the British
plenipotentiaries did not desire it."

From the execution of this treaty--as might well have been seen--the
misunderstanding between the two countries in relation to the fisheries
became more and more complicated. The treaty seems to have considered
only the cod-fishing, and even from that point of view we paid an
enormous price for the poor privilege of drying fish on the
Newfoundland coast, by abandoning the right of mackerel fishing within
three marine miles of all other coasts of his Britannic Majesty's
dominions in America; for from that time the mackerel fisheries grew
into large proportions, and without regard to treaty provisions the
right of cod-fishing on the banks could never have been taken from us.

The difficulty of determining the three-mile line, the presence of
armed vessels to prevent its violation, the vexatious seizure of
American fishing-vessels, the reckless injustice of the British local
courts in their condemnations, constantly exasperated both parties, and
on several occasions threatened to bring the two Governments into
actual collision. Both countries recognized the necessity of a more
definite settlement; and in June, 1854, after thirty-six years of
continuous disturbance and danger, Mr. Marcy as Secretary of State,
and Lord Elgin, Governor-General of Canada, as plenipotentiary for
Great Britain, negotiated what is known as the Reciprocity Treaty. It
was hoped that the opportunity would be used to settle this question
permanently, or at least to secure and understanding that we should not
upon the termination of a temporary arrangement be relegated to the
irritating injustice of the treaty of 1818. But the wary diplomatists
of England, with sarcasm scarcely concealed, had so phrased the opening
clause of the Reciprocity treaty as to make its provisions only
"_additional to the liberty secured to the United States fishermen by
the Convention of 1818_."

The right in the fisheries conceded by the treaty of 1854(2)--originally
ours under the treaty of 1782, and unnecessarily and unwisely renounced
in the treaty of 1818--was not given freely but in consideration
of a great price. That price was reciprocity of trade (so-called)
between the United States and the British North American Provinces
in certain commodities named in the treaty. The selection as
shown by the schedule was made almost wholly to favor Canadian
interests. There was scarcely a product on the list which could be
exported from the United states to Canada without loss, while the great
market of the United States was thrown open to Canada without tax or
charge for nearly every thing which she could produce and export. All
her raw materials were admitted free, while our manufactures were all
charged with heavy duty, the market being reserved for English
merchants. The fishery question had been adroitly used to secure from
the United States an agreement which was one-sided, vexatious, and
unprofitable. It had served its purpose admirably as a makeweight for
Canada in acquiring the most generous and profitable market she ever
enjoyed for her products. And yet Canadians seemed honestly to
believe that they had conceded to us more on the sea than we had
conceded to them on the land.(3)

The treaty of 1854 was to continue for ten years, with the right of
termination upon twelve months' notice by either party. It was
terminated on the 17th of March, 1866, upon notice given by the
United States one year before. By the abrogation of this treaty our
fishery rights were again, through our own unwise concession, subjected
to the provisions of the treaty of 1818. But Canada gained little by
this relegation, while she suffered great loss in consequence of being
deprived of her free access to the markets of the United States for
all her products of forest, field and sea.

During the existence of the Reciprocity Treaty the enterprise and
capital of the American fishing industry had in some degree developed
mackerel fishing, while a free market in the United States had
encouraged the inshore fishing of the British dominions to a great and
profitable extent. Perhaps at this time the British fishermen placed
an exaggerated estimate upon the three-mile fisheries, while the
American fishermen followed the privilege rather as a convenience and
as an exemption from this annoyance and expense of seizure and
trial, than as having any very large intrinsic value.

When the Joint High Commissioners proceeded to consider the question of
the fisheries three different views were manifest. The British
Commissioners desired a restoration of the Reciprocity Treaty, to which
the American Commissioners replied that such a concession was
impossible. During the discussion to which this refusal led, the
American Commissioners declared that the value of these inshore
fisheries had been largely over-estimated, and that the United-States
Government desired to secure their enjoyment, not for their commercial
or intrinsic value, but for the purpose of removing a source of
dissension. They intimated that $1,000,000 was the largest sum which
they would be disposed to offer for the full and permanent use of
the inshore fisheries without the addition of any privilege as to the
free admission of fish and fish-oil. The British Commissioners
considered this to be an entirely inadequate estimate of the value of
the fisheries and found insuperable difficulties in the way of an
absolute and permanent transfer of the rights.

After prolonged consideration and discussion the American Commissioners
finally declared that they were "willing (subject to the action of
Congress) to concede the admission of Canadian fish and fish-oil free
of duty as an equivalent for the use of the inshore fisheries, and to
make the arrangement for a term of years." They were firmly and
intelligently of the opinion that free fish and free oil to the
Canadian fishermen would be more than an equivalent for these
fisheries; but they were also willing to agree upon a reference to
determine that question and the amount of money-payment that might be
found necessary to complete the equivalent--it being understood that
the action of Congress would be needed before any payment could be
made. This proposition was referred by the British Commissioners to
their Government, was accepted by cable, and was at once embodied in
the treaty. These articles adopted the language of the Reciprocity
Treaty of 1854, recognizing, as it might again be claimed by the
British Government, the existence and full force of the Convention of
1818. The Commission then provided for the freedom from duty of
Colonial fish and fish-oil, granted reciprocity of inside fisheries
to British fishermen, and finally provided that the question of
compensation should be referred to three Commissioners.(4)

It would not be just to impute carelessness to the American members of
the Joint High Commission in framing the articles of the treaty
relating to the fisheries. It is quite evident however that they had
not closely studied the question, and had allowed the British
Commissioners to gain an advantage. It was a mistake to agree to a new
confirmation of the treaty of 1818, apparently establishing it as the
basis of all our rights and giving to it the authoritative position
which the treaty of 1782 originally held and should have continued to
hold on this question. We might not be able to annul the treaty of
1818, but it was not wise to forfeit, by the assent of so imposing a
body as the Joint High Commission, our right of protest against the
injustice of its provisions and to agree practically to the assertion
that our fishing-rights began in 1818. But a much graver blunder was
committed. Our Commissioners had very justly maintained that the
admission of Canadian fish and fish-oil free of duty into the United
States would be more than an equivalent for the fishery rights to be
conceded by the British Government. They had also maintained that for
a concession of those rights in perpetuity the Government of the United
States would not be willing to pay more than $1,000,000. Holding these
views, believing as they did that we were giving more than we were
gaining, the Commissioners nevertheless consented to a reference to
determine _how much in addition we should pay to Great Britain_. The
agreement certainly should have been to ascertain to which party, if
either, a money consideration should be paid. Still further, if they
were willing to imply in advance that a money consideration might be
due to Great Britain and not to the United States, a maximum limit
should have been inserted in the treaty beyond which the American
Government would not be willing that any award should extend. But
by practically conceded, in the first place, that money should be paid
to Great Britain, and by leaving the Reference to determine the
amount without any limit whatever, they offered a great temptation to
wrong dealing, against which the United States had reserved no defense
and could secure no redress.

Of the three Commissioners referred to in the Article providing for an
arbitration, the treaty directed that one should be appointed by the
President of the United States, one by Her Brittanic Majesty, and the
third by the President and Her Brittanic Majesty conjointly; and if
they could not agree upon the third within a period of three months
after the Article should take effect, then "the third Commissioner
shall be named by the representative at London of his Majesty the
Emperor of Austria and King of Hungary." The legislation necessary
to give the Fishery Articles of the treaty full effect having been
completed in 1873, Acting Secretary of State J. C. Bancroft Davis, on
the 7th of July in that year, notified the British Minister at
Washington, Sir Edward Thornton, that in regard to the third
Commissioner "the Government of the United States is willing to take
the initiative and suggest to her Majesty's Government the names of
a number of persons, each one of whom would be in the opinion of the
President be influenced only by a desire to do justice between the
parties." He then proposed (for the consideration of the British
Government) the names of the Mexican Minister, the Russian Minister,
the Brazilian Minister, the Spanish Minister, the French Minister,
and the Minister of the Netherlands, residing at that time in
Washington. Mr. David advised Sir Edward that they had "omitted the
names of those Ministers who have not the necessary familiarity with
the English language," and also of those who "_by reason of the
peculiar political connection of their governments with Great Britain
would probably esteem themselves disqualified for the position._"

Sir Edward Thornton, being absent from Washington, did not receive the
note of Mr. Davis until the 11th of July, when (as he advised him on
the 16th) he immediately telegraphed the substance of it to Lord
Granville, and dispatched a copy by mail. Five weeks later, on the
19th of August, without any intervening correspondence Sir Edward
(writing from the Catskills) recalled to Secretary Fish that he had
spoken to him when last in Washington "on the subject of the Belgian
Minister, Mr. Delfosse, being a suitable person as third Commissioner
on the Commission which is to sit at Halifax. . . . I had hoped
[wrote Sir Edward] that he would have been agreeable to your
Government, until I spoke to you upon the subject. I subsequently
received a telegram from Lord Granville, desiring me to ascertain
whether Mr. Delfosse would be agreeable to the Government of the
United States as third Commissioner. . . . _Lord Granville desired me
to ask you in his name that you would consent to the appointment of
the Belgian Minister_, who, as he believes, would be in all respects
a suitable person for the position."

Mr. Fish was utterly astounded by this proposition submitted by Sir
Edward Thornton and coming almost as a personal and pressing request
from Lord Granville. The one Minister who was regarded as especially
disqualified by Mr. Maurice Delfosse, the representative of Belgium at
Washington. The disqualification did not convey a personal reflection
upon that gentleman, but was based upon the relations of his government
to the Government of Great Britain. The Kingdom of Belgium owed its
origin to the armed interposition of Great Britain, and its
continuance, to her friendship and her favor. Its first monarch
Leopold, who had been but five years dead when the Treaty of
Washington was negotiated, had married the Princess Charlotte, daughter
of the Price-Regent of England; he was brother to Queen Victoria's
mother, and to Prince Albert's father; he held the rank of Marshal in
the British Army, and had been for a long period in receipt of an
annual allowance of fifty thousand pounds from the British Exchequer.
He was on terms of the most affectionate friendship with the Queen and
was her constant and confidential adviser.

His son and successor Leopold II., the reigning monarch, cousin of
Queen Victoria, had married an Austrian princess, and the unfortunate
Carlotta, widow the Emperor Maximilian, was his sister. The House of
Hapsburg associated the American support of the Mexican President
Juarez with the death of Maximilian, and might not be well disposed
towards the Government of the United States. It was not therefore an
altogether happy circumstance that the Austrian Ambassador in London
had been designated as the person to choose a third Commissioner, in
the event of the British and American Governments failing to agree in
his selection. A sense of honest dealing at the outset had plainly
suggested the ineligibility of a Belgian subject to the third
Commissionership, and suggested also the impropriety of leaving to the
Austrian Ambassador in London the selection of the Commissioner. The
narrative will show that the British Government had determined upon the
one or the other, and in the end accomplished both.

The reply of Mr. Fish to Sir Edward's extraordinary communication of
August 19 was prompt and pointed. In a note of August 21 he
courteously affected to believe that a grave mistake had occurred in
the transmission of Lord Granville's telegram. He could not believe
that Lord Granville, advised of the inability of the Government of
the United States to assent to the selection of Mr. Delfosse, would
deliberately propose that gentleman. Mr. Fish was sure that there had
been "some mis-conveyance of information or instruction, for which the
telegraph must have been responsible." He reminded Sir Edward that
in an interview with him in Washington he (Mr. Fish) had declared that
"while entertaining a high personal regard for the character and
abilities of the Belgian Minister to his country, there are reasons in
the political relations between his government and that of Great
Britain why the representative of the former could not be regarded as
an independent and indifferent arbitrator on questions between the
Government of her Majesty and the United States." Mr. Fish still
further reminded Sir Edward that during the session of the Joint High
Commission, when the question of referring the Fishery dispute to the
head of some foreign State was under discussion, Earl de Grey, chairman
of the British Commissioners, in proposing several powers, voluntarily
said to the American Commissioners, "_I do not name Belgium or
Portugal, because Great Britain has treaty arrangements with them that
might be supposed to incapacitate them_."

Five days later Sir Edward advised Mr. Fish that "as the matters which
are to be considered by the Commission deeply concern the people of
Canada, it was necessary to consult the Government of the Dominion
upon the point of so much importance as the appointment of a third
Commissioner; and some delay was therefore unavoidable. . . . I have
now [continued Sir Edward] the honor to inform you that her Majesty's
Government has received a communication from the Governor-General of
Canada (Lord Dufferin) to the effect that the Government of the
Dominion strongly _objects to the appointment of any of the foreign
Ministers residing at Washington as third Commissioner on the above
mentioned Commission_, and prefers to resort to the alternative
provided by the treaty; namely, to leave the nomination to the Austrian
Ambassador at London."

The State Department was justified by this time in considering that the
British Government was resorting to devices for delay. Circumstances
all pointed in that direction. The Government of the United States
had submitted the names of six Ministers, representing countries of
which at least four held more intimate relations with Great Britain
than with the United States. Specific reasons had been given for not
mentioning others. After a totally unreasonable delay (from July 11
to August 19) the English Government responded, _proposing the very
name that had originally been objected to by the United States--proposing
it with the urgency of a personal request from Lord Granville_. When
it was found that our Government would not accept Mr. Delfosse, the
intelligence came within a week that the Canadian Government objected
to any foreign Minister, who had been residing in Washington, as third
Commissioner. Of course this objection excluded Mr. Delfosse with all
the others, for Mr. Delfosse had resided in Washington several years
longer than the majority of those who had been proposed by the United
States.

Mr. Fish very justly and sharply rebuked this interposition of the
Government of Canada. On September 6 he wrote to Sir Edward that "the
reference to the people of the Dominion of Canada seems to imply a
practical transfer to that Province of the right of nomination which
the treaty gives to her Majesty." He informed Sir Edward that "in the
opinion of the President, a refusal on his part to make a nomination,
or to concur in the conjoint nomination contemplated by the treaty, on
the ground that some local interest (that for instance of the
fishermen of Gloucester) objected to the primary mode of filling the
commission intended by the treaty, might well be regarded by her
Majesty's Government as a departure from the letter and spirit of the
treaty." Mr. Fish went still farther: "In the President's opinion,
such a course on his party might justify the British Government in
remonstrating, and possibly in hesitating as to its future relations
to the Commission." The rebuke was not too severe, because if the
matter was to be left to the judgment of the people of Canada, it
would have been far wiser to remand the negotiation originally to
the authorities of the Dominion, with whom the United States could
probably have come to an agreement much more readily than with the
Imperial Government.

On the 24th of September Sir Edward advised Mr. Fish that he was
instructed by Earl Granville to propose that "the Ministers of the
United States and of her Majesty, at the Hague, should be authorized
to see if they could not agree upon some Dutch gentleman to act as
third Commissioner, who would be acceptable to both Governments." Mr.
Fish replied to Sir Edward, two days later, that in regard to the plan
of selecting "some Dutch gentleman," through the American and English
Ministers at the Hague, he was directed by the President to say that
such mode of appointment "varies from the provisions of the treaty,
which has received the Constitutional assent of the Senate. The
President, therefore, does not feel himself at liberty to entertain
a proposition which would require the conclusion of a new treaty in
Constitutional form before the proposition could be assented to by the
United States." Mr. Fish added, with a justifiable brusqueness not
often found in his diplomatic correspondence, that "it is deeply to be
regretted that _her Majesty's Government has made no effort to comply
with that provision of the Twenty-third Article of the Treaty, whereby
it was agreed that the third Commissioner should be named by the
President of the United States and her Brittanic Majesty conjointly_."

A reply came from Sir Edward on the 1st of October. To Mr. Fish's
charge that no effort had been made on the part of her Majesty's
Government, he answered by reminding him that he had proposed Mr.
Delfosse, and also "some Dutch gentleman" to be agreed upon by the
Ministers of England and the United States at the Hague. Mr. Fish
replied on the 3d of October, in a somewhat caustic review of the
entire correspondence, in which he clearly proved that "the effort of
this Government to carry into execution the provisions of the
Twenty-third Article of the treaty have hitherto failed _from no
fault or negligence on its part_." He closed his note by renewing the
statement that "the President earnestly hopes that the two Governments
will yet agree upon a third Commissioner, and to that end is willing
to waive the question of the time within which the joint nomination
should be made."

After protracted correspondence Sir Edward advised Mr. Fish that her
Majesty's Government considered that the three months having expired,
the appointment of the third Commissioner rested with the
representative in London of the Emperor of Austria and King of Hungary.
Mr. Fish argued to the contrary in a dispatch of October 25th. He
was unable to perceive that any right of nomination had passed beyond
the control of the two Governments, and still entertained the hope that
an effort might be made by her Majesty's Government to agree upon a
third Commissioner, in the spirit of the treaty and with the
concurrent appointment of the two Governments. Sir Edward replied, on
December 2, as instructed by Lord Granville, that "her Majesty's
Government, concurring with the Law Officers of the Crown, thinks the
Article is explicit as to the appointment of the third Commissioner
being left to the Austrian representative in London if not made within
a certain date," and added: "Her Majesty's Government, therefore,
consider that the Government of the Dominion of Canada might complain
if the nomination were not made as provided for by the treaty; and that
if the arbitrator were to give a decision unfavorable to Canada great
discontent might arise in consequence in the colony." Earl Granville,
therefore, asked that the two Governments might agree upon an "identic
note to be addressed to the Austrian Government by the representatives
of the United States and Great Britain, requesting that the Austrian
embassador at London may be authorized to proceed with the nomination
of the third Commissioner."