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by Adams, it was agreed that the people of the United States should continue to enjoy the "right” to take fish on all the banks of Newfoundland and in the Gulf of St. Lawrence, and “at all other places in the sea" where the inhabitants of both countries had been accustomed to fish; and that the inhabitants of the United States should have the “liberty" to take fish on the coast of Newfoundland and on the coasts, bays, and creeks of all other of his Britannic Majesty's dominions in America, and also the “liberty” to dry and cure fish, subject to an agreement with the proprietors of the ground, so soon as any of the coasts should become settled.
When the representatives of the two countries met at Ghent, on August 8, 1814, to negotiate a new treaty of peace, the British plenipotentiaries at once took the ground that the fishery arrangement of 1782-83 had been terminated by the war of 1812, and declared that, while they "did not deny the right of the Americans to fish generally, or in the open seas," they could not renew the privilege of fishing within British jurisdiction and of drying fish on the British shores without an equivalent. In the discussions that ensued, the question of the free navigation of the Mississippi, which had been secured to British subjects by the treaty of 1782–83, became coupled with that of the fisheries. The American plenipotentiaries were unwilling to renew the stipulation as to the Mississippi; the British plenipotentiaries refused
to yield the fisheries without it; and in the end, on motion of the Americans, a treaty of peace was concluded which contained no mention either of the fisheries or of the Mississippi. Both subjects were left for future negotiation.
On June 19, 1815, an American fishing-vessel, engaged in the cod-fishery, was, when about forty-five miles from Cape Sable, warned by the commander of the British sloop faseur not to come within sixty miles of the coast. This act the British government disavowed; but Lord Bathurst is reported at the same time to have declared that, while it was not the government's intention to interrupt American fishermen “in fishing anywhere in the open sea, or without the territorial jurisdiction, a marine league from the shore," it “could not permit the vessels of the United States to fish within the creeks and close upon the shores of the British territories." John
. Quincy Adams, who was then minister of the United States in London, maintained that the treaty of peace of 1783 “was not, in its general provisions, one of those which, by the common understanding and usage of civilized nations, is or can be considered as annulled by a subsequent war between the same parties.” This position Lord Bathurst denied. He contended that the treaty of 1782-83, like many others, contained provisions of different characterssome irrevocable, and others of a temporary nature, terminable by war; and that the two governments
had, in respect of the fisheries, recognized this distinction by describing as a "right" the open sea
” fishery, which the United States could enjoy merely by virtue of its independence, and as a “liberty," dependent on the treaty itself, what was to be done within British jurisdiction. This position the British government continued to maintain. From 1815 to 1818 many American vessels found fishing in British waters were seized, and much ill feeling was engendered.
Such was the condition of things when, on October 20, 1818, Albert Gallatin and Richard Rush concluded with plenipotentiaries on the part of Great Britain a convention, the first article of which related to the fisheries. By this article the United States “renounce forever, any liberty heretofore 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 harbours" of the British dominions in America, not included within certain limits, within which the right to fish or to dry and cure fish was expressly reserved. It was provided, however, that the American fishermen might “enter such bays or harbours" for the purposes “of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever,” subject to such restrictions as might be necessary to prevent them from abusing the privileges thus reserved to them.
On June 14, 1819, an act, closely following the language of the article, was passed by the imperial parliament to carry it into effect; and from that time down to 1836, little trouble seems to have occurred. But in that year the legislature of Nova Scotia passed an act, by which the "hovering" of vessels within three miles of the coasts and harbors was sought to be prevented by various regulations and penalties; and claims were subsequently asserted to exclude American fishermen from all bays and even from all waters within lines drawn from headland to headland, to forbid them to navigate the Gut of Canso, and to deny them all privileges of traffic, including the purchase of bait and supplies in the British colonial ports. From 1839 down to 1854 there were numerous seizures, and in 1852 the home government sent over a force of war steamers and sailing vessels to assist in patrolling the coast.
With a view to adjust the various questions that had arisen, the British government in 1854 sent Lord Elgin to the United States on a special mission, and on June 5, 1854, he concluded with Mr. Marcy, who was then Secretary of State, a treaty in relation to the fisheries and to commerce and navigation. By this treaty the United States fishermen temporarily reacquired the greater part of the inshore privileges renounced by the convention of 1818. On the other hand, a reciprocal concession was granted to British fishermen on the eastern coasts of the United States down to the thirty-sixth parallel of north latitude, and provision was made for reciprocal free trade between the United States and the British colonies in North America in various articles of commerce. This treaty came into operation on March 16, 1855. It was terminated on March 17, 1866, on notice given by the United States in conformity with its provisions. All the old questions were thus revived; but a new arrangement was effected by Articles xviii.-xxv. of the comprehensive treaty of Washington of May 8, 1871. The American fishermen were again temporarily readmitted to the privileges renounced by the convention of 1818, while the United States agreed to admit Canadian fish and fish-oil free of duty, and to refer to a tribunal of arbitration, which was to meet at Halifax, the question of the amount of any additional compensation which should be paid by the United States for the inshore privileges. On November 23, 1877, an award was made in favor of Great Britain of the sum of five million five hundred thousand dollars, or nearly half a million dollars for each of the years during which the arrangement was necessarily to continue in force. The United States protested against the award, but paid it in due course. Lest, however, the same rate of compensation should subsequently be demanded, the United States in 1883 availed itself of the right to give notice of termination of the fishery articles, and they came to