The French Shore Question of Newfoundland
[This article was written by the Honorable Edward Morris in 1898. For the full citation, see the end of the document.]
FOUR hundred years ago on the morning of the 24th day of June, 1497, John Cabot in a little vessel, The Mathew of Bristol, discovered Newfoundland . Ever since that memorable morning Newfoundland or some portion of it has been the scene of those troubles and disputes which in recent years have become crystallised in the descriptive phrase known as "The French Shore Question." In the present paper I merely propose to deal with the historical aspects of this question, and in doing so shall have to confine myself within the limits of a brief summary. To do more would be to occupy the space of at least one volume of the Encyclopaedia of Canada. Few, if any, international questions of modern times have given rise to more disputes. It has helped to set up and pull down Kings and more than, once has changed the map of two hemispheres. It has formed the preamble in one declaration of war, and no important treaty between France and England refuses it a place. It is fresh and vigorous to-day as when bartered by the English King for British North America, and nothing that we can see foretells that the time is approaching when it is to become a mere antique. Kings may come and Kings may go, but the French Shore Question goes on for ever. As will be seen by reference to Imperial and local Hansards, it has been year after year, century after century, debated in the House of Lords and House of Commons in England, in the different Legislative Chambers in France, in the Local Legislature in Newfoundland, and in the Chambers of Commerce of many countries. The Press of two continents have written on it, the Blue Books are full of despatches concerning it, and, as I write in the Year of Grace 1899, the question seems as far from being settled as ever.
True it is that the year that has just passed witnessed the birth of another of its chapters, namely, the appointing by the Imperial Government of Great Britain of a Royal Commission consisting of Sir John Bramston and Admiral Erskine, to inquire into and report upon the whole question of the French Treaties. Whether this mode of dealing with the difficulty may lead to a settlement, time only can reveal and certainly not by any reasoning from the past can such a desired consummation be anticipated. The codfish, the innocent and unconscious cause of all this trouble, still flourishes and continues to furnish Newfoundland with an important item of commerce as it did in the days of Cabot. There can be no question but that from the very date of the discovery of Newfoundland, the value of the cod-fishery was known and appreciated. We are informed by the early historians of the Island that " Cabot brought home to Bristol a valuable cargo," and it is reasonable to assume that that cargo was codfish, which in the month of June usually abound in great quantities on the coasts. In the year 1500 the cod-fishery was carried on by the Portuguese, the French and the Biscayans on the great Banks and Coasts of Newfoundland. In the year 1585 a squadron, under the command of Drake seized the Portuguese fishing vessels on the coast of Newfoundland and carried them to England as lawful prizes, England being then engaged in war with Spain , and Portugal being subject to that Power. In the year 1502 a charter was granted by Henry VII. to Hugh Elliot and Thomas Ashehurst for the establishment of a fishing Colony in Newfoundland , but nothing practical seems to have come from it. It was not till the year 1536 that a London merchant named Hoare, who with a number of others embarked from Gravesend and went to Newfoundland, and from what they saw and reported, led to what may be regarded as the real commencement of the Newfoundland Fish trade. From this date a great portion of the West of England vigorously prosecuted this industry, and it became no small factor in the growth of England 's commerce.
So much did the value of this trade appeal to the English that in the year 1549, in the 3d year of the reign of King Edward V., we find the first English Statute relating to Newfoundland passed by the British Parliament and entitled "An act for the better encouragement of the fisheries in Iceland and Newfoundland." It cannot be (doubted that this enactment was intended by its promoters to wrest from all other competitors the fisheries of Newfoundland, whose value was then fully admitted by all European Powers. About the year 1582 a commission under Sir Thomas Hampshire was sent out by Queen Elizabeth for the purpose of settling disputes between the fishermen as to the ownership of their various fishing rooms or plantations. Hitherto the custom had been for the person first seizing the space of ground used for the curing of fish to own the same, but this led to endless disputes and much serious conflict, and it was now settled that, "so long as he kept it employed for fishery purposes, the fishing room which had been the object of his choice was secured to each fisherman or fishing crew." The following year, on the 5th of August, Sir Humphrey Gilbert, in the name of Queen Elizabeth, took possession of the Island of Newfoundland in the presence of all foreigners then fishing there. " This taking possession of that Island (says Dr. Forster) on the part of the Crown of England is the foundation of the rights which England has to the fisheries carried on by her subjects in these seas." In the year 1591 we find Captain Whitbourne in Newfoundland, with a commission from the Admiralty, holding Court and adjudicating on the claims and disputes of one hundred and seventy masters of English fishing vessels which had arisen out of the Newfoundland fishing trade. In the year 1633 a commission was issued by King Charles " for the well-governing of his subjects inhabiting in Newfoundland or trafficking in bays, creeks, or fresh rivers there." This was followed by others in quick succession, all tending to increase the safety of those engaged in the Newfoundland fisheries, and to guard British subjects from being in any way molested or interfered with in their fishing operations. In 1634 a fine of five per cent. was levied by the English Government on the value of all fish taken by the French in Newfoundland waters, but was subsequently removed in the year 1675.
There can be no question that from this date we may fix the growth of the fishing disputes between the two nations, England and France, arising out of the Newfoundland fisheries; and this deduction is amply borne out by the fact that in the declaration of war by King William against the French King, the first grievance mentioned is the disputed sovereignty of Newfoundland. The words are: " That it was not long since the French took licences from the Governor of Newfoundland to fish on that Coast and paid a tribute for those licences as an acknowledgment of the sole right of the Crown of England to the Island, but of late the encroachment of the French upon that Island and His Majesty's subjects' trade and fishery there had been more like the invasion of an enemy than becoming friends who had enjoyed the advantages of that trade only by permission." In the year 1698 an Act was passed by the British Parliament "prohibiting on pain of forfeiture of ship and cargo the importation of fish taken by foreigners in foreign ships." This Act was followed soon after by another entitled "An Act to encourage the trade in Newfoundland." Under this last mentioned Act " the right and privilege of landing and drying fish on the shores of Newfoundland was limited to British subjects." From the accession of Queen Anne to the English Throne in 1702, down to the signing of the Treaty of Utrecht in 1713, Newfoundland continued to be the scene of perpetual conflicts between the two nations and the fishing interests of both countries rose and fell in proportion to the protection afforded those engaged in their prosecution by their respective countries. The following clause of the Treaty of Utrecht, namely Article 13, is the one which undertook to deal with the fisheries in Newfoundland :
"The Island called Newfoundland, with the adjacent islands, shall from this time forward belong of right wholly to Great Britain ; and to that end the town and fortress of Placentia, and whatever other places in the said. Island are in the possession of the French, shall be yielded and given up within seven months from the exchange of the ratification of this Treaty, or sooner if possible, by the Most Christian King, to those who have a commission from the Queen of Great Britain for that purpose. Nor shall the Most Christian King, his heirs and successors, or any of their subjects, at any time hereafter, lay claim to any right to the said island or islands, or to any part of it or them. Moreover, it shall not be lawful for the subjects of France to fortify any place in the said Island of Newfoundland, or to erect any building there, besides sages made of boards and huts necessary and usual for drying of fish, or to resort to the said Island beyond the time necessary for fishing and drying of fish. But it shall be allowed to the subjects of France to catch fish and to dry them on land in that part only, and in no other besides that, of the said Island of Newfoundland which stretches from the place called Cape Bonavista to the northern point of the said Island, and from thence running down by the western side reaches as far as the place called Point Riche. But the Island called Cape Breton, as also all others, both in the mouth of the River St. Lawrence and in the Gulph of the same name, shall hereafter belong of right to the French, and the Most Christian King shall have all manner of liberty to fortify any place or places there."
By this Treaty it will be seen the whole territory of Newfoundland was ceded to the British Crown, but by the fishing privileges which it granted to France new sources of dispute and irritation were created, and the conflict which has now been waged for nearly two centuries between the two nations may be said to have arisen from the varied construction of this Treaty given to it by the statesmen concerned. The success of the British arms on land and sea in the year 1762 led to the signing of the Treaty of Paris on the loth of February, 1763. This Treaty was foreshadowed in the Speech from the Throne of the English King on the 25th of November of the previous year in the following words: " He had pursued this extensive war in the most vigorous manner in hopes of obtaining an honourable peace, and that by the preliminary Articles it would appear that there was not only an immense territory added to the Empire of Great Britain, but a solid foundation was laid for the increase of trade and commerce, and the utmost care had been taken to remove all occasions of future disputes between his subjects and those of France and Spain." The Treaty of Paris is the best evidence afforded of the value set by France on the Newfoundland fisheries, for by that Treaty we find her surrendering all her rights on the Continent of America except the Islands of St. Pierre and Miquelon, and giving up the whole of Canada for the continuation of the privilege of fishing granted under the Treaty of Utrecht - and even the small Islands of St. Pierre and Miquelon were not to be fortified, but to serve merely as a shelter for the fishermen of France. And by the 18th Article of the said Treaty the King of Spain renounced all claim and right to fishing in Newfoundland waters. The following is the text of Articles 5 and 6 of the Treaty of Paris bearing on this question
"ARTICLE 5. The subjects of France shall have the liberty of fishing and drying on a part of the coasts of the Island of Newfoundland, such as it is specified in the 13th Article of the Treaty of Utrecht, which Article is renewed and confirmed by the present Treaty (except what relates to the Island of Cape Breton, as well as to the other islands and coasts in the mouth and in the Gulph of St. Lawrence), and His Britannic Majesty consents to, leave to the subjects of the Most Christian King the liberty of fishing in the Gulph of St. Lawrence on condition that the subjects of France do not exercise the said fishery, but at the distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situate in the said Gulph of St. Lawrence. And as to what relates to the fishery on the coast of the Island of Cape Breton out of the said Gulph, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of fifteen leagues from the coast of the Island of Cape Breton; and the fishery on the coasts of Nova Scotia or Acadia, and everywhere else out of the said Gulph, shall remain on the footing of former treaties.
"ARTICLE 6. The King of Great Britain cedes the Islands of St. Pierre and Miquelon in full right to His Most Christian Majesty to serve as a shelter to the French fishermen; and His said Most Christian Majesty engages not to fortify the said Islands, to erect no buildings upon them, but merely for the convenience of the fishery, and to keep upon them a guard of fifty men only for the police."
Following on the American war came the Treaty of Versailles, in 1783, by which Treaty the rights of France to fish in Newfoundland waters, acquired under the Treaty of Utrecht, were confirmed with the important difference that "the King of France, in order to prevent quarrels which had hitherto arisen between the two nations of England and France renounced the right of fishing from Cape Bonavista to Cape St. John granted him by the Treaty of Utrecht and agreed that henceforth the French fishery should commence at the said Cape St. John." The following is the full text of the Articles of the Treaty bearing on the Newfoundland fisheries:
"ARTICLE 4. His Majesty the King of Great Britain is maintained in his right to the Island of Newfoundland, and to the adjacent islands, as the whole were assured to him by the 13th Article of the Treaty of Utrecht, excepting the Islands of St. Pierre and Miquelon, which are ceded in full right by the present Treaty to His Most Christian Majesty.
"ARTICLE 5. His Majesty the Most Christian King, in order to prevent the quarrels which have hitherto arisen between the two nations of England and France, consents to renounce the right of fishing, which belongs to him in virtue of the aforesaid Article of the Treaty of Utrecht, from Cape Bonavista to Cape St. John, situate on the eastern coast of Newfoundland, in fifty degrees north latitude; and His Majesty the King of Great Britain consents, on his part, that the fishery assigned to the subjects of His Most Christian Majesty, beginning at the said Cape St. John, passing to the north, and descending by the western coast of the Island of Newfoundland, shall extend to the place called Cape Ray, situate in forty-seven degrees fifty minutes, latitude. The French fishermen snall enjoy the fishery which is assigned to them by the present Article, as they had the right to enjoy that which was assigned to them by the Treaty of Utrecht.
"ARTICLE 6. With regard to the fishery in the Gulph of St. Lawrence, the French shall continue to exercise it, conformably to the 5th Article of the Treaty of Paris."
The following was the Declaration, made by His Britannic Majesty upon the signing of the Treatv of Versailles:
"The King, having entirely agreed with His Most Christian Majesty upon the Articles of the definite Treaty, will seek every means which shall not only insure the execution thereof with his accustomed good faith and punctuality, and will besides give, on his part, all possible efficacy to the principles which shall prevent even the least foundation of dispute for the future. To this end, and in order that the fishermen of the two nations may not give cause for daily quarrels, His Britannic Majesty will take the most positive measures for preventing his subjects from interrupting in any manner, by their competition, the fishery of the French during the temporary exercise of it, which is granted to them upon the coasts of the Islands of Newfoundland ; but he will, for this purpose, cause the fixed settlements which shall be formed there to be removed. His Britannic Majesty will give orders that the French fishermen be not incommoded in cutting the wood necessary for the repair of their scaffolds, huts and fishing vessels. The 13th Article of the Treaty of Utrecht, and the method of carrying on the fishery which has at all times been acknowledged, shall be the plan upon which the fishery shall be carried on there. It shall not be deviated from by either party, the French fishermen building only their scaffolds, confining themselves to the repair of their fishing vessels, and not wintering there ; the subjects of His Britannic Majesty, on their part, not molesting in any manner the French fishermen during their fishing, nor injuring their scaffolds during their absence. The King of Great Britain, in ceding the Islands of St. Pierre and Miquelon to France, regards them as ceded for the purpose of serving as a real shelter to the French fishermen and in full confidence that these possessions will not become an object of jealousy between the two nations, and that the fisherybetween the said islands and that of Newfoundland shall be limited to the middle of the channel."
The following counter Declaration of His Most Christian Majesty the King of France was made at the same time:
"The principles which have guided the King in the whole course of the negotiations which preceded the re-establishment of peace must have convinced the King of Great Britain that His Majesty has had no other design than to render it solid and lasting by preventing, as much as possible, in the four quarters of the world, every subject of discussion and quarrel. The King of Great Britain undoubtedly places too much confidence in the uprightness of His Majesty's intentions not to rely upon his constant attention to prevent the Islands of St. Pierre and Miquelon from becoming an object of jealousy between the two nations. As to the fishery on' the coasts of Newfoundland, which has been the object of the new arrangements settled by the two Sovereigns, upon this matter it is sufficiently ascertained by the 5th Article of the Treaty of Peace signed this day, and by the Declaration likewise delivered to-day by His Britannic Majesty's Ambassador Extraordinary and Plenipotentiary ; and His Majesty declares that he is fully satisfied on this head. In regard to the fishery between the Island of Newfoundland and those of St. Pierre and Miquelon, it is not to be carried on by either party but to the middle of the channel; and His Majesty will give the most positive orders that the French fishermen shall not go beyond this line. His Majesty is firmly persuaded that the King of Great Britain will give like orders to the English fishermen."
The foregoing Declaration of the English King, no doubt well meant and intended to have the .opposite effect, has done more to intensify the difficulties and increase the complications, than might even have been looked for from the Treaty itself. In fact it will be seen hereafter that the phrase "interrupting in any manner by their competition" has furnished the foundation upon which the French have erected in late years their whole claim of an exclusive right of fishing on that part of the Treaty Shore defined in the Treaty and so opposed to our contention or claim of a concurrent right only. Few if any disturbances arose out of the joint exercise of the two nations in fishing on the Treaty Shore during the long period which followed on the wars terminated by the Treaty of Paris in 1814. In fact during these years the French may be said to have abandoned this fishery, and its prosecution was confined almost entirely to British fishermen. By the Treaty of Paris, however, signed in 1814, the French right of fishing was replaced and confirmed within the limits prescribed by the Treaty of Versailles, and upon the footing on which it stood in the year 1792. The following is the text of the Treaty of Paris bearing on the Newfoundland fisheries:
"ARTICLE 8. His Britannic Majesty, stipulating for himself and his allies, engages to restore to His Most Christian Majesty, within the term which shall be hereafter fixed, the colonies, fisheries, factories and establishments of every kind which were possessed by France on the first January, 1792, in the seas and on the continents of America, Africa and Asia, with the exception, however, of the Islands of Tobago and St. Lucie, and the Isle of France and its dependencies, especially Rodrigues and Les Schelles, which several colonies and possessions His Most Christian Majesty cedes in full right and sovereignty to His Britannic Majesty, and also the portion of St. Domingo ceded to France by the Treaty of Basle, and which His Most Christian Majesty restores in full right and sovereignty to His Catholic Majesty.
ARTICLE 13. The French right of fishery upon the Great Bank -of Newfoundland, upon the coasts of the Island of that name, and of the adjacent islands in the Gulph of St. Lawrence, shall be replaced upon the footing in which it stood in 1792."
I have now traced the history and growth of the Newfoundland fisheries question from the discovery of the Island by Cabot in 1497 down to the signing of the Treaty of Paris in 1814 - three hundred years of strife and turmoil - and anyone who carefully reads the imperfect synopsis given will find no difficulty, I am sure, in agreeing with Lord Salisbury, who, in referring a few years ago, in the House of Lords, to the French Shore question, was pleased to say that "Newfoundland was the sport of historic misfortune." It is under this Treaty of Paris, 1814, and what it embraces, that the French claim today their fishery privileges - the chief amongst which are as follows:
(1) An exclusive right of fishery on the Treaty Shore.
(2) The right to catch fish of all descriptions.
(3) The right to take salmon and other fish in the rivers, both in the fresh and salt water.
(4) The right to set up lobster factories on the Treaty Shore, and can and pack lobsters.
(5) The exclusive right to the Treaty Shore for half a mile inwards from low water mark.
(6) The right to exercise jurisdiction on the Treaty Shore in carrying out the Treaty, and as regards breaches of the same by British fisher. men.
(7) That all fixed establishments on the Treaty Shore are there in violation of the Treaty and that they have the right to demand their removal.
The better to appreciate the right to such claims and the grounds upon which they justify such an interpretation, it will be necessary to clearly ascertain from such historical data and other reliable sources as are now available what these rights really were in 1792 or, in the words of the Treaty, what was " the footing upon which it stood in 1792." To appreciate what that footing was we shall have to travel back to the period of the Treaty of Utrecht when the right was first created and then gradually lead up to the present day and thus, by a careful examination of the question from a legal and constitutional standpoint, arrive at a just verdict as to whose interpretation of the Treaty is to-day the fair and equitable one. The first and most important piece of evidence we have is the Proclamation of Sir Hugh Palliser, Governor of Newfoundland, issued the year after the signing of the Treaty of Paris, which Treaty, it will be borne in mind, confirmed the. fishing privileges given to the French under the Treaty of Utrecht, but conceded no more. That Proclamation was as follows:
1. "That there should be no distinction or interruption given to the subjects of France in enjoyment of the Fishery allowed them by the stipulations of the Treaties.
2. The Harbour Admirals and all officers were to take care that the said subjects of France be permitted and allowed in common with the King's subjects to choose their stations during the fishery season according as they shall respectively arrive in the Harbours and occupy such a space of beach as shall be proportioned to their number of boats; as long as the said subjects of France shall be actually employed in fishing and drying of fish. In case of dispute the Captains of His Majesty's ships and Harbour Admirals were to proceed with the strictest justice and report their proceedings, the subject matter to be taken in writing and transmitted by the Admirals, duly authenticated, to the Commander-in-Chief, or to the Governor, to be confirmed or annulled as justice may require.
3. The officers were not upon any pretence whatever to interfere in disputes which might arise between French subjects.
4. The French were not to be disturbed in their persons, properties, or effects, carrying or fishing within the limits aforesaid according to the Treaties."
Here then we have a public proclamation of the Governor of the Colony made at the time, on the spot, honestly and clearly defining the French rights under the first Paris Treaty. We look in vain for any suggestion here of an exclusive fishery by the French. On the contrary everything goes to show that a concurrent fishery, or user, was contemplated and understood in the words of the second clause of the Proclamation : "that the said subjects of France be permitted and allowed in common with the King's subjects to choose their stations." It is not likely, if such an unfounded pretension as an exclusive fishery, as is now contended for, had been then set up by the French, that so clear and unequivocal a declaration of the well-understood and accepted meaning of the Treaty would have been allowed to go unchallenged. The fishery was clearly a concurrent fishery, whilst the regulation and control of the same was vested in the English authorities. On no consideration were the French to exercise any jurisdiction. Again in the year 1764 we find the Master of a French ship, Le Sage, complaining to the Governor of Newfoundland" that, being the first to arrive at St. Juliens (a port on the Treaty Shore), he had been prevented by one Waldron "from taking his first choice." He recognised in this way a concurrency with British fishermen, and only asserted his claim by reason of his. being the first to arrive. All through these years. we find the French and English fishermen fishing side by side and occupying these "berths" by reason only of their prior arrival. 'In 1765 " a Proclamation of the English King to the like-general effect as Governor Palliser's Proclamation in the former year was published, and exclusive claims in fishing properties were declared to be "unwarrantable pretences to the great prejudice and discouragement of the ship fishery, not only of our subjects in general, but also of the subjects of the Crown of France allowed by Treaty to concurrent fishery within the limits aforesaid." The same year it was ordered "that all ships. which shall resort to that part of the Island do choose their stations as they respectively arrive."
Now this clearly means the ships of both nations, for at no time did the Newfoundland Governors or Admirals in any way interfere as between the French themselves or their private disputes. In 1768 we have a complaint of M. Delarne, Master of the French ship Bon Amis,. to the Governor of Newfoundland, "that he had been deprived of his first choice of a station at Toulingust" (Twillingate), and an inquiry was directed. Then follows, in 1769, the Proclamation of the Hon. J. Byron, Governor of Newfoundland, issued against obstructions or interruptions tosubjects of France in the enjoyment of the fishery "in common with British subjects," and it was directed that the subjects of both nations were to choose their stations according to priority of arrival. The English Harbour Admirals were directed not to interfere between subjects of France in any dispute amongst themselves. In 1770, "The Solicitor-General of England, De Grey, in the course of an opinion as to the acquirement of rights of a permanent character in fishing premises by British subjects on the Treaty Shore, observes that he is of opinion that the French are not to be excluded from their permissive right of fishery by any permanent establishments that may be made by the English. In other words that the French possessed their right in turn to the choice of stations, and were not to be debarred from its exercise by any assumption of permanent fishing property in English settlers. In 1772 Governor Shouldam's Proclamation was similar to those of his predecessors, but contained an additional instruction from the Secretary of State that "the subjects of France be not hindered from nor obstructed in resorting to any part of the harbours in Newfoundland which be within the limits, provided they be content with such a just and moderate use of these privileges as is warranted by the letter and spirit of these Treaties and that they conform to those regulations which are prescribed by your (the Governor's) instructions." Now we have seen that the regulations were never applied as between the French themselves, and it is valuable evidence to show that a concurrent fishery was always maintained. In 1775 the French Ambassador "complained to the English Secretary of State (Lord Weymouth) of sundry obstructions to the French Fishery where they were allowed to carry it on in common with His Britannic Majesty's subjects." This is followed by a strong Proclamation similar in effect to the preceding one.
The grounds upon which the French mainly rely to establish an exclusive right of fishery are on the words of the Declaration of the English King dated September 3d, 1783 , and appended to the Treaty of Versailles of the same year. The words are: "To this end and in order that the fishermen of the two nations may not give cause for daily quarrels, His Majesty will take the most positive measures for preventing his subjects from interrupting, in any manner by their competition, the fishery of the French during the temporary exercise of it, and his Britannic Majesty will give orders that the French fishermen be not incommoded in cutting the wood necessary for the repair of their scaffolds, huts and fishing vessels." Now to any ordinary mind these words can have only one meaning. If they came before a Court in a legal document, for construction, they could only bear one interpretation, and that is, that the French fishermen in fishing were not to be interrupted by the competition of the English fisherman fishing by his side. Competition here can only have the meaning of near competition. Because it could not be pretended that competition arising out of fishing in other parts of the Island was to be prevented. It is quite easy to understand the reasons which led to the Declaration of the King. The Ambassador of France knew very well that the Treaty of Versailles only confirmed to the French the privileges they held under the Treaty of Utrecht. Under the 13th Article of the latter Treaty the French "were not to lay claim to any right to the said Island and Islands or to any part of it, or them." The whole of the Island was the territory of Great Britain and to be under her absolute sovereignty. This, was in nowise annulled by the permissive presence of a French naval force for the discipline of their own marine. Knowing this, is it difficult to understand why the English King was requested to make a declaration (in fact it may have been volunteered by him), to the effect that, whilst competing together, he would see that his subjects did not interrupt the subjects of France. He was the only party to the Treaty that could do this as he alone exercised absolute sovereignty. There would have been no point in such a declaration if the continuous presence of British fishermen on the Treaty Shore competing was not presumed. Nor was it an annual or occasional interruption that was to be guarded against. The words are, "in order that the fishermen of the two nations may not give rise for daily quarrels." Now daily quarrels could only occur where men were continuously fishing side by side in the same harbour or on the same fishing ledge or Bank. It was clearly to guard against interruption such as they had been subjected to between the date of the passing of the Treaty of Utrecht and that of the Treaty of Versailles. For, during this period the French and English, as we have seen, fished concurrently on the shore and such a claim as an exclusive fishery never was set up.
Nothing could be clearer than that the Treaty of Versailles (1783), the English King's Declaration, and the counter Declaration of the French King - both of which are affixed to the Treaty - defined the fishery rights of the French in Newfoundland to be in the future what they had been in the past. The latter Declaration goes on to say: "The 13th Article of the Treaty of Utrecht and the method of carrying on the fishery which has at all times been acknowledged, shall be the plan upon which the fishery shall be carried on there. It shall not be deviated from by either party, the subjects of His Britannic Majesty on their part not molesting in any manner the French fishermen during the fishing nor injuring their scaffolds during their absence." Now in the face of such a declaration how unfounded appears the pretension of the French to an exclusive right of fishery. If such had been conceded- or contemplated, it is very unlikely that the counter Declaration of the French King would have assented to the use of such words as that "the method of carrying on the fishery which has at all times been acknowledged shall be the plan upon which the fishery shall be carried on there." And again, " it shall not be deviated from by either party." And still further, "the subjects of His Britannic Majesty on their part not molesting in any wise the French fishermen "-words and phrases all clearly pointing to a concurrent user. We have clearly seen that the Treaty of Utrecht gave no exclusive right of fishery to the French, that the manner in which the fishery for years was carried on fully established such a reading of the Treaty, and that in 1783 it is settled that the manner by which it is then carried out shall not be deviated from. Amongst the sources of information from which I have drawn the material for this paper, I have been much indebted to a "Foreign Office (English) Memorandum," dated March, 1866, and July, 1873, the greater portion of which was published by Major-General R. L. Dashwood in a very interesting and patriotic lecture entitled the French in Newfoundland, published this year by him. From this Memorandum it would appear "that between 1713 and 1780, that is from the signing of the Treaty of Utrecht to the breaking out of the War of 1780, the rights enjoyed by the French were concurrent only, and the attempts made from time to time by the French to induce the British Government to make their rights exclusive had been successfully resisted."
Mr. Fitzherbert, in a despatch of May 4th, 1783 , stated that M. De Vayennes continued to urge the insertion of such words in the Declaration as would secure the exclusive right of fishery to the French. This attempt to obtain exclusive rights was resisted, and, "it will lie observed that neither the Treaty of 1783 nor the declaration annexed thereto confers any exclusive rights of fishery to the French." Away above and beyond all of the foregoing well-known arguments as to the interpretation of the Treaty, on which the French base their claim of exclusive cod-fishing, there is a further piece of evidence, which must appear conclusive, and which in itself ought to be sufficient to set the matter for ever at rest and put the French out of court. In 1818 a Treaty was entered into between Great Britain and the United States of America, by which the Americans acquired a right to fish along the coast of Newfoundland, from the Island of Rameo on the south coast, round Cape Ray to the Island of Quirpon on the extreme northeast ; that is to say, over nearly the whole extent of the coast known as the French Shore. Clearly Great Britain could not dispose of that which was not her own, and if it was within her right to grant fishing privileges to a foreign Power such as America, those privileges were hers. The date of this Treaty is, it will be observed, subsequent to all those which might be quoted in support of the French view. Therefore, after the Treaties of Utrecht, Versailles and Paris, and after the Declaration of King George III., a Treaty was entered into which puts beyond dispute the fact that Great Britain retained sovereign rights over the waters and the coast in which she had granted certain fishing privileges to France.
Lord Palmerston, in a despatch of the Foreign ,Office dated July loth, 1838, in reply to Count Sebastini, "who claimed on the wording of the English King's Declaration an exclusive right of fishing," amongst other things says that : " The Treaty of Paris of 1814 declares that the French right of fishery at Newfoundland is replaced upon the same footing upon which it stood in 1792. In order therefore to come to a right understanding of the question it will be necessary . . . to ascertain what was the precise footing upon which the French fishery actually stood in 1792. Now it is evident that specific evidence would be necessary in order to show that the construction which the French Government now desire to put upon the Declaration of 1783 is the interpretation which was given to that Declaration at the period when the Declaration was framed, and when the real intention of the parties must have been best known. It would be requisite for this purpose to prove that upon the conclusion of the Treaty of 1783 French subjects actually entered upon the enjoyment of an exclusive right to catch fish in the waters off the Coast in question . . . at the commencement of the war in 1792 ; but no evidence to such effect has yet been produced. And moreover it does not appear that such right was claimed by France or admitted by England at the termination of the war in 18o1, or at the Peace of 1814." And, referring to prohibitory proclamations of the English Governors after 1785 which were issued, "from time to time, on occasions when it was found that the British subjects while fishing within the limits in question, have caused interruption to the French fishery," Lord Palmerston proceeds to say that neither in the Act of Parliament of 1788 passed for the express purpose of carrying the Treaty of 1783 into effect; nor in any subsequent Act of Parliament relating to the Newfoundland fishery ; nor in any of the instructions issued by the Admiralty or Colonial Office; nor in any Proclamation which has come under my view, issued by the Governor of Newfoundland, or by the British Admiral upon the Station ; does it appear that the right of French subjects to an exclusive fishery, either of cod-fish or fish generally, is specifically recognised . . . ." And, in conclusion, he adds : " Exclusive rights are privileges which, from the very nature of things, are likely to be injurious to parties who are thereby debarred from some exercise of industry in which they would otherwise engage; such rights are therefore certain to be at some time or other disputed, if there is any maintainable ground for contesting them ; and for these reasons when negotiators have intended to grant exclusive rights, it has been their invariable practice to convey such rights in direct, unqualified and comprehensive terms, so as to prevent the possibility of future dispute or doubt. In the present case, however, such forms of expression are entirely wanting, and the claim put forward on the part of France is founded simply upon inference, and upon an assumed interpretation of words."
Governor Darling, in a despatch to Mr. Labouchere (Colonial Secretary) in 1856 states "that several Proclamations of Governors between the years 1763 and 1783 speak of the French rights as rights in common." From a perusal of all of the foregoing, nothing is clearer than that the presence on the Treaty Shore of British fishermen lawfully prosecuting their calling was fully recognised by the French. And so matters progressed between the respective fishermen, and negotiation after negotiation took place between the Governments of Great Britain and France, and the Newfoundland Government, with a view to some permanent settlement of the vexed question. The most important of these negotiations was that known as the " Convention of 1857," signed in London in that year. Under this Convention it was proposed, amongst other stipulations, to give the French an exclusive right of fishery and the use of the strand from Cape St. John to Quirpon and from Quirpon to Cape Norman, in and upon certain five harbours named. On other portions of the coast British subjects were to have a concurrent fishery. A concurrent right was also given to the French on the coast of Labrador from Blanc Sablon to Cape Charles and of North Belle Isle. This Convention was indignantly rejected by the Newfoundland Legislature and led to the celebrated despatch from Labouchere, the then British Secretary of State for the Colonies, to the Governor of Newfoundland, now known as the "Magna Charta" of Newfoundland. This celebrated document was as follows
"The proposals contained in the Convention having been now unequivocally refused by the Colony they will of course fall to the ground and you are authorised to give such assurance as you may think proper, that the consent of the community of Newfoundland is regarded by Her Majesty's Government as the essential preliminary to any modification of their territorial or maritime rights.
From this date up to the year 1885 no less than eight attempts at different times have been made, and Conference after Conference has been held, each one producing a new arrangement, but all in their turn proving abortive, and being successfully resisted by the Newfoundland Legislature. Anyone who carefully and dispassionately studies these arrangements and the despatches connected with them must arrive at the one and only conclusion, that their failure was due principally to lack of knowledge and local experience on the part of the British negotiator as to the immense importance to Newfoundland of the fishing privileges conceded to the French. Too often there was also a desire on the part of the negotiator to return successfully from his mission covered with glory, having effected peace at any price, and viewing and estimating the privileges he had bartered away from no better standpoint than that afforded by the view of a map of Newfoundland on the wall before him. Too often also the result followed from keen diplomacy and accurate knowledge of detail, on the part of the French representative, gained by a practical knowledge of the subject in a service on the Treaty Shore .
The last and most important of these negotiations was that entered into at Paris in November, 1885. At the negotiations England was represented by Mr. Clare Ford and Mr. E. B. Pennell, gentlemen who were both connected with the Colonial and Foreign Office, but neither of whom had ever been in Newfoundland, and whose knowledge of the question would depend altogether on their power to assimilate our case from the Blue Books of a century. As a consequence Newfoundland was again sacrificed, and nothing practical came of the negotiations. On the French side the Commission included a naval officer who had served for several years on the Treaty Shore , and was fully conversant with every phase of the question. As a natural result the Newfoundland Legislature rejected the arrangement, principally for the reasons set out by the Report of a joint Select Committee of the Newfoundland Legislature and which, summarised, are as follows:
(1) Its adoption would place the French in possession of the principal harbours between Cape Ray and Cape John, to the practical exclusion o£ British fishermen from any of the privileges of that coast.
(a) That it gave jurisdiction to Commanders of French cruisers in matters criminal as well as civil to the disregarding of those principles and procedures to which, as British subjects, we are accustomed and entitled in Tribunals of justice.
(3) The proposed arrangement sought to assert, perpetuate and legalise a claim to the purchasing of bait by the French in all the ports of this Colony without any reservation of power on the part of the Colony to restrict them by local legislation.
(4) And that no acceptable equivalent wasceded to this Colony for those large and important concessions proposed to be made to France under the arrangement.
We now arrive at the last and most important chapter in the history of the French Shore question. Following on the rejection of the arrangement of 1885, the Newfoundland Legislature in, 1886 passed what was, and is, known as the " Bait Act," or " An Act to regulate the exportation of herring, capellin, squid and other bait fishes." This Act was passed mainly for the purpose of preventing the exporting by Newfoundlanders to St. Pierre of bait fishes used by the French for their Bank fishery. This Act was more than justifiable, as the French, by a prohibitive tariff in their own country rendered the export of codfish into that country impossible, and by a bounty, amounting nearly per quintal to the value of the fish itself, were gradually driving our people out of the European markets. This Bait Act of 1886 was not allowed by the British Government, but nothing daunted, the Newfoundland Legislature re-passed it in 1887, and sent home Delegates to England to urge its sanction. Happening to be the jubilee Year and a number of Colonial leaders being in England whose influence and sympathy were obtained, and fortified by an able despatch from the then Newfoundland Governor, Sir George William Des Vceux, the mission of the Delegates was successful and the Act was assented to. It was put in operation in the following year, vigorously enforced and promised to prove disastrous to the French Bank fishery, as the following statistics indicate:
Exports of codfish from St. Pierre.
In 1887, 754,770 quintals of 112 lbs each.
In 1888, 594,594 " " "
In 1889, 300,000 " " "
Exports of codfish from Newfoundland .
In 1887, 1,080,024 quintals of 112 lbs each.
In 1888, 1,175,720
In 1889, 1,076,507
With such a condition of things staring them in the face, the French looked around for some weapon with which to fight Newfoundland and counteract the loss occasioned by the cutting off of their bait supply. In the canning of lobsters and the uniting of this industry on the Treaty Shore with the procuring of bait, they imagined they had found the means. They not alone erected lobster factories on the Treaty Shore, but, in the year 1888, two British subjects, Murphy and Andrews, whilst lawfully engaged packing lobsters on the Treaty Shore, had their establishments removed, at the instance of the French authorities, a French warship assisting, and a British warship interfering to support the unwarrantable contention of the French. Naturally such monstrous and high-handed work led to intense feeling in the Colony, and on the assembling of the Legislature, a joint Address to Her Majesty the Queen from both branches was unanimously passed. This Address summarised the illegality of the French claim to take and can lobsters as follows:
(1) Because it was declared by the Treaty of Utrecht that it should be unlawful for the French to erect buildings except those "necessary and usual for drying of fish."
(2) Because the Treaty of Paris (1763) restricted the liberty to "fishing and drying."
(3) Because the Treaty of Versailles (1783) speaks of "the fishery assigned to them by the Treaty of Utrecht."
(4) Because the Declaration speaks of "the fishery" and "the method of carrying on the fishery which has at all times been acknowledged shall be the plan upon which the fishery shall be carried on there."
(5) Because the French King's counter Declaration speaks of "the fishery on the coast of Newfoundland which has been the object of the new arrangements."
(6) Because the Treaty of Paris (1814) declares that the French right of fishery "shall be replaced upon the footing upon which it stood in 1792."
(7) Because there was no such industry as the lobster fishery in Newfoundland at any of these periods, and no such industry was heard of until within a few years past, and the language used to describe "the fishery" which the French were entitled to pursue is utterly inapplicable to lobster-catching, or the erection of factories for taking or canning lobsters.
The Address concluded with the prayer that: "Having regard to all the facts referred to and the necessary deductions relating therefrom, we are led to the expression of opinion, that in this matter, that is to say, in the assertion and protection of the rights of Your Majesty's subjects in Newfoundland against the aggressive and unwarranted claims of French subjects, and for the avoidance of discord, tumult and disturbance between the subjects of the two great Powers, it is necessary that some firm and vigorous action should be taken by the Colony with the co-operation and active assistance of Your Majesty's Government." To this Address came the reply of the Secretary of State for the Colonies, who, affirming the position of the Newfoundland Legislature, went on to say "that the pretensions of the French in regard to the lobster fishery and the erection of lobster factories on shore are disputed by Her Majesty's Government, who, however, trust that some understanding may be arrived at with the French Government between the present time (9th Nov., 1889) and the opening of the next year's fishery season." Negotiations then followed, and in March, 1890, the following Modus Vivendi was entered into between the British Government and the French:
"The questions of principle and of respective rights being entirely reserved on both sides, the British and French Governments agree that the status quo shall be maintained during the ensuing season on the following basis: Without France or Great Britain demanding at once a new examination of the legality of the installation of British or French lobster factories on the coasts of Newfoundland, where the French enjoy rights of fishing conferred by the Treaties, it is understood that there shall be no modification in the positions ('emplacements') occupied by the establishments of the subjects of either country on the first of July, one thousand eight hundred and eighty-nine, except that a subject of either nation may remove any such establishment to any spot on which the Commanders of the two naval stations shall have previously agreed. No lobster factories which were not in operation on the First of July, one thousand eight hundred and eighty-nine, shall be permitted unless by the joint consent of the Commanders of the British and French naval stations. In consideration of each new lobster factory so permitted, it shall be open to the fishermen of the other country to establish a new lobster factory on some spot to be similarly settled by joint agreement between the said naval Commanders. Whenever any case of competition in respect of lobster fishery arises between the fishermen of either country, the Commanders of the two naval stations shall proceed on the spot to a provisional delimitation of the lobster fishery grounds, having regard to the situations acquired by the two parties. N. B. - It is well understood that this arrangement is quite provisional, and shall only hold good for the fishing season which is about to open."
Much indignation was created in the Colony when the draft of the Modus Vivendi was made known, and it was found that such an arrangement had been agreed to against the expressed wishes of its Government, without the assent of the Newfoundland Legislature, and in direct violation of the Labouchere despatch. Delegations from the Government and people visited England, and enlisted with good effect the press and people in favour of Newfoundland. In the summer of 1890 a lobster factory on the Treaty Shore owned by James Baird of St. John's, Merchant, was removed by Sir Baldwin Walker, the Captain of H.M.S. Emerald, and the senior officer on the Newfoundland Fisheries Protection Service, and permission was refused Baird to carry on the factory. Baird sued Walker for $5,000 damages and obtained a verdict in the Newfoundland Courts. Walker appealed to the Privy Council, who affirmed the finding of the Newfoundland Court. The inquiry into this case led to the discovery that for a great number of years the Treaties had been illegally enforced and that the Act 28 Geo. III., passed for the purpose of enforcing the Treaties, had been by accident, or design, repealed as an obsolete measure by the Imperial Statute Law Revision Act, 1871.
The decision of the Privy Council in Bird v. Walker was in effect that the British Government had no law whereby to carry out the Treaties, and that with the repeal of 28 Geo. III. passed away the whole authority for enforcing the Treaties. The British Government then proposed, in 1891, to introduce the repealed Statute in order to enable them to enforce the Treaty. On this being made known to the Newfoundland Legislature, then in session, Delegates from both branches were appointed to proceed to England. On their arrival they found that a Bill was before the House of Lords and had passed its second reading, by which powers were taken to enforce the Treaties. This Act was a verbatim copy of 28 Geo. III., which was in its nature a coercion Act. of the worst kind, and under which naval officers exercised quarter-deck jurisdiction of the most objectionable and high-handed character. It was an Act conferring immense powers, from the decisions under which there was no appeal, and for the damages sustained by its enforcement no redress. By an undertaking on the part of the Newfoundland Delegates to pass a temporary Bill to enforce the Treaties and then discuss the terms of the permanent measure, the Bill, when it reached the House of Commons, was withdrawn. This was hailed by the Colony as a signal victory, and was achieved largely by the able presentment of the Newfoundland case in a speech at the Bar of the House of Lords by the Premier of the Island , the Right Hon. Sir W. V. Whiteway, one of the Newfoundland Delegates.
The Newfoundland Legislature then (1891) passed the desired temporary legislation which. has since been renewed from year to year, and under which the naval officers have continued to enforce the Treaties. Before returning to Newfoundland the Delegates discussed with the British Government the terms of a permanent Bill, the provisions of which in many respects were a great advance on the legislation it proposed to supersede. The Delegates, however, were not unanimous, and on their return made two distinct reports to the Newfoundland Legislature. The main features of the new Bill were that in the place of the naval officers, judicial commissioners were to be appointed by the British Government, who would constitute a Court for the trial of all questions arising between all persons fishing on the Treaty Shore. This permanent Bill was introduced into the Newfoundland Legislature in 1893, and rejected, the main objection being that the Bill contained no provision for the appointment of the judges or judicial commissioners by the Newfoundland Government, which a majority of the Newfoundland Delegates contended was agreed to by the British Government ; and further that no compensation was provided for parties who might suffer by the arbitration. The Bill also made no provision for an appeal.
And here the history of the French Shore question ends. No further step has since been taken with the exception of the appointment of the Royal Commission in 1898, referred to in the comencement of this paper. That commission visited Newfoundland and reported to Mr. Chamberlain, but its Report has not yet been made public. It is very generally known that its main features will be strongly in favour of the Colony. On July 19th, 1899; the Governor of Newfoundland, Sir H. McCallum, closed the Legislature, and in his Speech the following words in connection with the French Shore question occur, which I cannot do better than quote in closing this history of an important subject: "The Commissioners appointed by Her Majesty's Government to enquire and report upon the subject of French Treaty rights and claims in this Colony have made their Report, but I have not yet been furnished with a copy to lay before you. The expiry of the temporary Modus Vi Vivendi in relation to the lobster industry on the 31st of November next, and the fact that no legislation has been enacted or asked for the continuance of that arrangement, tend to strengthen the hope for some early adjustment of all questions in difference under the Treaties, upon terms which will be advantageous to the interests of the Colony."
It is intolerable that Newfoundland should be tied hand and foot in every branch of its industrial development merely to please France. There is only one imaginable solution of the difficulty. Let England purchase the French rights either by a money compensation or an exchange of territory. Much is hoped for by the people of Newfoundland from Mr. Chamberlain, now at the head of the Colonial Office. If he requires td have his hands strengthened by the unanimous voice of the people of England, then let the evidence taken in 1898 by the Royal Commissioners be published, and I have no doubt that a remedy will be applied which will bring about a condition of things in England's oldest and most loyal Colony such as will make it hereafter and for ever inapplicable to say of her that "she is the sport of historic misfortune."
Source : Edward MORRIS, "The French Shore Question in Newfoundland ", in J. Castell HOPKINS, ed., Canada. An Encyclopaedia of the Country, Toronto, The Linscott Publishing Company, 1898, 557p., pp. 483-495.
© 2004 Claude Bélanger, Marianopolis College