I want to acknowledge Canada Day this year by recalling that the Canadian-American relationship has not always been harmonious. One of the most divisive issues in the history of Canada-US relations was American access to fishing grounds of Atlantic Canada. From the Treaty of Paris in 1783 until 1912, the United States and Great Britain (with Canada playing a larger role over time) sought a solution to this longstanding problem, but such solutions only seemed to last so long.

Article Three of the Treaty of Paris, which ended the American Revolution, gave American fishermen the ability to continue fishing in the waters off Great Britain’s North American possessions despite being no longer members of the British Empire.

It is agreed that the People of the United States shall continue to enjoy unmolested the Right to take Fish of every Kind … where the Inhabitants of both Countries used at any time heretofore to fish. And also that the Inhabitants of the United States shall have Liberty to take Fish of every Kind on such Part of the Coast of New-Foundland as British Fishermen shall use, (but not to dry or cure the same on that Island) and also on the Coasts Bays & Creeks of all other of his Britannic Majesty’s Dominions in America.

Here, at the beginning of the formal relations between the United States and Great Britain and, by extension, Canada, were sowed the seeds of future contention. The dispute over the fisheries that would last for more than a century revolved around the difference between a “right” and a “liberty.” The British drew a distinction between the two terms, while the Americans saw them as interchangeable. These differing interpretations would pose no problem in the first decades of American nationhood but would assume supreme importance after the War of 1812.

While the Treaty of Ghent of 1814 was silent on the question of American access to the fishing grounds of British North America, in the summer of 1815 the British turned away American fishing vessels based on the principle that the War of 1812 had invalidated all existing treaties between Great Britain and the United States. This British attitude necessitated a new agreement on the fisheries question, which was duly signed on October 20, 1818.

Whereas differences have arisen respecting the Liberty claimed by the United States for the Inhabitants thereof, to take, dry, and cure Fish on certain Coasts, Bays, Harbours, and Creeks of His Britannic Majesty’s Dominions in America, it is agreed between the High Contracting Parties, that the Inhabitants of the United States shall have forever, in common with the Subjects of His Britannic Majesty, the Liberty to take Fish of every kind on that part of the Southern Coast of Newfoundland … and that the American Fishermen shall also have liberty forever, to dry and cure Fish in any of the unsettled Bays, Harbours, and Creeks of the Southern part of the coast of Newfoundland hereabove described, and of the Coast of Labrador … And the United States hereby renounces 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 His Britannic Majesty’s Dominions in America not included in the above mentioned limits; provided however, that the American Fishermen shall be admitted to enter such Bays or Harbours for the purpose of Shelter and of repairing Damages therein, or purchasing Wood, and of obtaining Water, and for no other purpose whatever. But they shall be under such Restrictions as may be necessary to prevent their taking, drying or curing Fish therein, or in any other manner whatever abusing the Privileges hereby reserved to them.

The Convention of 1818 spelled out where Americans were allowed to fish and from which areas they were banned. It explicitly banned Americans from fishing within three miles of the coast and laid out the narrow purposes for which they could enter such inshore waters. This recasting of the rights and liberties of American fishermen in the waters of British North America would govern the dispute for nearly a century.

Over the next few decades, tensions over American fishermen in British North American waters caused little controversy. In the 1830s, however, Nova Scotia and Prince Edward Island passed laws to enable strict enforcement of violations of the Convention of 1818, leading to confrontations with American fishing vessels. In 1852, driven by its newfound zeal for free trade, the British government sought to use the access to the fisheries of British North America as a lever to open the American market to Canadian goods. The attempt was successful, culminating in the Elgin-Marcy (Reciprocity) Treaty of 1854.
In its first article, the treaty greatly expanded the fishing rights of Americans in British North American waters.

It is agreed by the High Contracting Parties, that in addition to the liberty secured to the United States fishermen by the above mentioned convention of October 20, 1818 … 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, harbors, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward’s Island, and of the several Islands thereunto adjacent, without being restricted to any distance from the shore.
It is understood that the above mention liberty applies solely to the sea fishery, and that the salmon and shad fisheries, and all the fisheries in rivers, and the mouth of rivers, are hereby reserved exclusively for British fishermen.

Article Two gave British fishermen the same rights in American waters “North of the 36th parallel of North Latitude” and in Article Three the treaty enumerated 28 items that could be traded between British North America and the United States duty free. The British strategy of free goods in exchange for access to British North American waters had succeeded, but not for long.

Thanks to the Reciprocity Treaty, trade between Canada and the United States increased rapidly, but the strains put on Canada-US relations by the Civil War and the growth of protectionist sentiment in the United States led to the abrogation of the treaty by the United States in 1866. In the wake of the abrogation, Canada and the other provinces of British North America tried to keep the fisheries question on a calmer footing in the hopes of reviving reciprocity. This olive branch took the form of fishing licenses available for a nominal fee. When this failed to yield results because few American vessels procured them, the license system was abandoned in 1870 in favor of stricter enforcement of the now applicable Convention of 1818.

The United States and Great Britain sought to settle outstanding issues arising from the Civil War in the Treaty of Washington in 1871. In addition to agreeing to settle the claims of financial damages the United States had made against Great Britain as a result of the activities of British-built Confederate commerce raiders, the treaty also reopened British North American waters to American Fishermen. Article Eighteen of the treaty read:

It is agreed by the High Contracting Parties that, in addition to the liberty secured to the United States fishermen by the Convention between the United States and Great Britain, signed at London on the 20th day of October, 1818 … the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article XXXIII of this Treaty, to take fish of every kind, except shell-fish, on the sea-coasts and shores, and in the bays, harbours, and creeks, of the Provinces of Quebec, Nova Scotia, and New Brunswick, and the Colony of Prince Edward’s Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore.
It is understood that the above-mentioned liberty applies solely to the sea fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, are hereby reserved exclusively for British fishermen.

The fishermen of British North America received the same liberties and restrictions along the Eastern seaboard of the United States “north of the thirty-ninth parallel of north latitude.”

The Canadians, participating for the first time in a treaty between Great Britain and the United States, had desired a return to the free-fish-for-free-trade reciprocity of the 1854 treaty. Instead, they secured the reciprocal duty-free entry of sea fish and sea fish oil and the referral to a committee of arbitration for a monetary award in exchange for US access to the British North American fisheries. The Canadians attempted to forego the monetary award in exchange for a reciprocity treaty on select goods with the United States in 1874, but this treaty was rejected by the United States Senate. In 1877, the committee of arbitration awarded the British North American provinces $5,500,000 in compensation for American access to the fisheries. Incensed, the Americans abrogated the treaty at their first opportunity, giving notice that the fishery clauses of the Treaty of Washington would expire on July 1, 1885. As of that date, American access to the waters of British North America would be once again governed by the Convention of 1818.

Falling back on the Convention of 1818 was a recipe for the return of the tensions that had arisen whenever its strictures had been enforced by the British and Canadian authorities. Some American, British, and Canadian politicians sought to avoid the return of those tensions, but that’s a story for another day.

Image: Currier & Ives lithograph of the cod fisheries off Newfoundland. Image courtesy of Wikimedia Commons.

Sources:

Treaties and other international agreements of the United States of America, 1776-1949, 13 vols., compiled under direction of Charles I. Bevins (Washington, DC: Government Printing Office, 1968-1976). https://www. loc.gov/law/help/us-treaties/bevans.php.

Hugh L. Keenleyside and Gerald S. Brown, Canada and the United States: Some Aspects of Their Historical Relations (New York: Alfred A. Knopf, 1952).

Lester B. Shippee, Canadian-American Relations, 1849-1874 (New Haven: Yale University Press, 1939).

Thomas B. Earle, “For Cod and Country: Cod Fishermen and the Atlantic Dimensions of Sectionalism in Antebellum America,” Journal of the Early Republic 36, no. 3 (Fall 2016).

Roger Riendeau, A Brief History of Canada (Markham, ON: Fitzhenry and Whiteside, 2000).

Robert Craig Brown, Canada’s National Policy, 1883-1900: A Study in Canadian-American Relations (Princeton: Princeton University Press, 1964).