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wick), Magdalen Islands, and Labrador, so long as the same
shall remain unsettled." In the one case, it will be seen, there
was a recognised right, but in the other only a mere "liberty"
or privilege extended to the fishermen of the United States.
At the close of the war of 1812 the British government would
not consent to renew the merely temporary liberties of 1783,
and the United States authorities acknowledged the soundness
of the principle that any privileges extended to the republic
in British territorial waters could only rest on "conventional
stipulation." The convention of 1818 forms the legal basis of
the rights, which Canadians have always maintained in the
case of disputes between themselves and the United States as
to the fisheries on their own coasts, bays, and harbours of
Canada. It provides that the inhabitants of the United States
shall have for ever the liberty to take, dry, and cure fish on
certain parts of the coast of Newfoundland, on the Magdalen
Islands and on the southern shores of Labrador; but they
"renounce for ever any liberty, heretofore enjoyed" by them to
take, dry, and cure fish, "on or within three marine miles of
any of the coasts, bays or creeks or harbours of his Britannic
Majesty's other dominions in America " ; provided, however,
that the American fishermen shall be admitted to enter such
bays and harbours, for the purpose of shelter, and of repairing
damages therein, of purchasing wood, and of obtaining water,
and "for no other purpose whatever."

In April, 1817, the governments of Great Britain and the
United States came to an important agreement which ensured
the neutrality of the great lakes. It was agreed that the naval
forces to be maintained upon these inland waters should be



X.] Relations with the United States. 299

confined to the following vessels: on Lakes Champlain and
Ontario to one vessel, on the Upper Lakes to two vessels, not
exceeding in each case a hundred tons burden and armed with
only one small cannon. Either nation had the right to bring
the convention to a termination by a previous notice of six
months. This agreement is still regarded by Great Britain
and the United States to be in existence, since Mr Secretary
Seward formally withdrew the notice which was given for its
abrogation in 1864, when the civil war was in progress and the

f relations between the two nations were considerably strained
at times.

/ The next international complication arose out of the seizure
of the steamer Caroline, which was engaged in 1837 in carry-
ing munitions of war between the United States and Navy
Island, then occupied by a number of persons in the service
of Mr Mackenzie and other Canadian rebels. In 1840 the
authorities of New York arrested one Macleod on the charge
of having murdered a man who was employed on the Caroline.
The Washington government for some time evaded the whole
question by throwing the responsibility on the state authorities
and declaring that they could not interfere with a matter which
was then within the jurisdiction of the state courts. The
matter gave rise to much correspondence between the two
governments, but happily for the peace of the two countries the
American courts acquitted Macleod, as the evidence was clear
that he had had nothing to do with the actual seizing of the
Caroline^ and the authorities at Washington soon afterwards
acknowledged their responsibility in such affairs by passing an
act directing that subjects of foreign powers, if taken into
custody for acts done or committed under the authority of
their own government, "the validity or effect whereof depends
upon the law of nations, should be discharged." The dissatis-
faction that had arisen in the United States on account of the
cutting out of the Caroline was removed in 1842, when Sir
Robert Peel expressed regret that "some explanation and



3OO Canada under British Rule. [CHAP. X.

apology for the occurrence had not been previously made," and
declared that it was "the opinion of candid and honourable
men that the British officers who executed this transaction,
and their government who approved it, intended no insult or
disrespect to the sovereign authority of the United States 1 ."

In the course of time the question of the disputed boundary
between Maine and New Brunswick assumed grave propor-
tions. By the treaty of 1783, the boundary was to be a line
drawn from the source of the St Croix, directly north to the
highlands "which divide the rivers which fall into the Atlantic
ocean from those which fall into the river St Lawrence;"
thence along the said highlands to the north-easternmost head
of the Connecticut River ; and the point at which the due
north line was to cut the highlands was also designated as the
north-west angle of Nova Scotia. The whole question was the
subject of several commissions, and of one arbitration, from 1 783
until 1842, when it was finally settled. Its history appears
to be that of a series of blunders on the part of England
from the beginning to the end. The first blunder occurred
in 1796 when the commissioners appointed to inquire into the
question, declared that the Schoodic was the River St Croix
mentioned in the treaty. Instead, however, of following the
main, or western, branch of the Schoodic to its source in the
Schoodic Lakes, they went beyond their instructions and chose
a northern tributary of the river, the Chiputnaticook, as the
boundary, and actually placed a monument at its head as a
basis for any future proceeding on the part of the two govern-
ments. The British government appear to have been very
anxious at this time to settle the question, for they did not
take exception to the arrangement made by the commis-
sioners, but in 1798 declared the decision binding on both
countries.

Still this mistake might have been rectified had the British

x Hall's Treatise on International Law (3rd ed.), pp. 311 313.



70



48




70



6Q



67



66



Boundary established by Lord Ashburton . Boundary according to the natural watershed
as declared in the ireaty of 1783 but disregarded in 1842. ...The true boundary traced northward
from the malr stream of the Schaodic River, but ignored in 1842,

MAP OF THE NORTH-EASTERN BOUNDARY AS ESTABLISHED IN 1842.

(From Kingsford's History of Canada.)



3O2 Canada under British Rule. [CHAP.

government in 1835 been sufficiently alive to British interests
in America to have accepted a proposal made to them by
President Jackson to ascertain the true north-western angle
of Nova Scotia, or the exact position of the highlands, in
accordance with certain well-understood -rules in practical sur-
veying which have been always considered obligatory in that
continent. It was proposed by the United States to discard
the due north line, to seek to the west of that line the undis-
puted highlands that divide the rivers which empty themselves
into the River St Lawrence from those which fall into the
Atlantic Ocean, to find the point in the 'watershed' of these
highlands nearest to the north line, and to trace a direct course
from it to the monument already established. "If this principle
had been adopted," says Sir Sandford Fleming, the eminent
Canadian engineer, "a straight line would have been drawn
from the monument at the head of the Chiputnaticook to a
point which could have been established with precision in the
'watershed' of the highlands which separate the sources of the
Chaudiere from those of the Penobscot, this being the most
easterly point in the only highlands agreeing beyond dispute
with the treaty. The point is found a little to the north and
west of the intersection of the yoth meridian west longitude
and the 46th parallel of north latitude." Had this proposal
been accepted England would have obtained without further
difficulty eleven thousand square miles, or the combined areas
of Massachusetts and Connecticut.

For several years after this settlement was suggested a most
serious conflict went on between New Brunswick and the state
of Maine. The authorities of Maine paid no respect what-
ever to the negotiations that were still in progress between
the governments of Great Britain and the United States, but
actually took possession of the disputed territory, gave titles
for lands and constructed forts and roads within its limits.
Collisions occurred between the settlers and the intruders,
and considerable property was destroyed. The legislature of



X.] Relations with the United States. 303

Maine voted $800,000 for the defence of the state, and the
legislature of Nova Scotia amid great enthusiasm made a grant
of $100,000 to assist New Brunswick in support of her rights.
Happily the efforts of the United States and British govern-
ments prevented the quarrel between the province and the
state from assuming international proportions; and in 1842
the British representative, Lord Ashburton, was authorised
by the ministry of the Earl of Aberdeen to negotiate with
Mr Daniel Webster, then secretary of state in the American
cabinet, for the settlement of matters in dispute between the two
nations. The result was the Ashburton Treaty, which, in fixing
the north-eastern boundary between British North America and
the United States, started due north from the monument incor-
rectly placed at the head of the Chiputnaticook instead of the
source of the true St Croix, and consequently at the very outset
gave up a strip of land extending over some two degrees of
latitude, and embracing some 3000 square miles of British
territory. By consenting to carry the line due north from
the misplaced monument Lord Ashburton ignored the other
natural landmark set forth in the treaty : "the line of head-
lands which divide the waters flowing into the Atlantic from
those which flow into the St Lawrence." A most erratic
boundary was established along the St John, which flows
neither into the St Lawrence nor the Atlantic, but into the
Bay of Fundy, far east of the St Croix. In later years the
historian Sparks found in Paris a map on which Franklin
himself had marked in December, 1782, with a heavy red line,
what was then considered the true natural boundary between
the two countries. Mr Sparks admitted in sending the map
that it conceded more than Great Britain actually claimed,
and that "the line from the St Croix to the Canadian highlands
is intended to exclude [from the territory of the United States]
all the waters running into the St John." Canadians have
always believed with reason that that portion of the present state
of Maine, through which the Aroostook and other tributaries



304 Canada under British Rule. [CHAP.

of the St John flow, should be British territory. If we look
at the map of Canada we see that the state of Maine now
presses like a huge wedge into the provinces of New Brunswick
and Quebec as a sequence of the unfortunate mistakes of 1796,
1835, and 1842, on the part of England and her agents. In
these later times a "Canadian short line" railway has been
forced to go through Maine in order to connect Montreal with
St John, and other places in the maritime provinces. Had the
true St Croix been chosen in 1796, or President Jackson's offer
accepted in 1835, this line could go continuously through
Canadian territory, and be entirely controlled by Canadian
legislation.

Another boundary question was the subject of much heated
controversy between England and the United States for more
than a quarter of a century, and in 1845 brought the two
countries very close to war. In 1819 the United States obtained
from Spain a cession of all her rights and claims north of
latitude forty-two, or the southern boundary of the present
state of Oregon. By that time the ambition of the United
States was not content with the Mississippi valley, of which
she had obtained full control by the cession of the Spanish
claims and by the Louisiana purchase of 1803, but looked to
the Pacific coast, where she made pretensions to a territory
stretching from 42 to 54 40' north latitude, or a territory four
times the area of Great Britain and Ireland, or of the present
province of Ontario. The claims of the two nations to this
vast region rested on very contradictory statements with respect
to priority of discovery, and that occupation and settlement
which should, within reasonable limits, follow discovery; and
as the whole question was one of great perplexity, it should
have been settled, as suggested by England, on principles of
compromise. But the people of the United States, conscious
at last of the importance of the territory, began to bring their
influence to bear on the politicians, until by 1845 the Demo-
cratic party declared 'for 54 40' or fight.' Mr Crittenden



X.] Relations with the United States. 305

announced that "war might now be looked upon as almost
inevitable." Happily President Polk and congress came to
more pacific conclusions after a good deal of warlike talk; and
the result was a treaty (1846) by which England accepted
the line 49 to the Pacific coast, and obtained the whole of
Vancouver Island, which for a while seemed likely to be divided
with the United States. But Vancouver Island was by no v
means a compensation for what England gave up, for, on the
continent, she yielded all she had contended for since 1824,
when she first proposed the Columbia River as the line of
division.

But even then the question of boundary was not finally
settled by this great victory which had been won for the United
States by the persistency of her statesmen. The treaty of
1846 continued the line of boundary westward along "the 49th
parallel of north latitude to the middle of the channel which
separates the continent from Vancouver Island, and thence
southerly through the middle of the said channel and of Fuca's
straits to the Pacific Ocean." Anyone reading this clause
for the first time, without reference to the contentions that
were raised afterwards, would certainly interpret it to mean the
whole body of water that separates the continent from Van-
couver, such a channel, in fact, as divides England from
France ; but it appears there are a number of small channels
separating the islands which lie in the great channel in question,
and the clever diplomatists at Washington immediately claimed
the Canal de Haro, the widest and deepest, as the canal of the
treaty. Instead of at once taking the ground that the whole
body of water was really in question, the English government
claimed another channel, Rosario Strait, inferior in some
respects, but the one most generally, and indeed only, used at
the time by their vessels. The importance of this difference
of opinion lay chiefly in the fact, that the Haro gave San Juan
and other small islands, valuable for defensive purposes, to the
United States, while the Rosario left them to England. Then,
B. c. 20



306 Canada under British Rule. [CHAP.

after much correspondence, the British government, as a corn-
promise, offered the middle channel, or Douglas, which would
still retain San Juan. If they had always adhered to the
Douglas which appears to answer the conditions of the treaty,
since it lies practically in the middle of the great channel
their position would have been much stronger than it was when
they came back to the Rosario. The British representatives
at the Washington conference of 1871 suggested the reference
of the question to arbitration, but the United States' commis-
sioners, aware of their vantage ground, would consent to no
other arrangement than to leave to the decision of the Emperor
of Germany the question whether the Haro or the Rosario
channel best accorded with the treaty; and the Emperor
decided in favour of the United States. However, with the
possession of Vancouver in its entirety, Canada can still be
grateful ; and San Juan is now only remembered as an episode
of skilful American diplomacy. The same may be said of
another acquisition of the republic insignificant from the
point of view of territorial area, but still illustrative of the
methods which have won all the great districts we have named
Rouse's Point at the outlet of Lake Champlain, "of which an
exact survey would have deprived" the United States, according
to Mr Schouler in his excellent history.

During this period the fishery question again assumed
considerable importance. The government at Washington
raised the contention that the three miles' limit, to which their
fishermen could be confined by the convention of 1818, should
follow the sinuosities of the coasts, including the bays, the
object being to obtain access to the valuable mackerel fisheries
of the Bay of Chaleurs and other waters claimed to be ex-
clusively within the territorial jurisdiction of the maritime
provinces. The imperial government sustained the contention
of the provinces a contention practically supported by Ameri-
can authorities in the case of the Delaware, Chesapeake, and
other bays on the coast of the United States that the three



X.] Relations with the United States. 307

miles' limit should be measured from a line drawn from head-
lands of all bays, harbours and creeks. In the case of the Bay
of Fundy, however, the imperial government allowed a depar-
ture from this general principle, when it was urged by the
Washington government that one of its headlands was in the
territory of the United States, and that it was an arm of the sea
rather than a bay. The result was that foreign fishing vessels
were only shut out from the bays on the coasts of Nova Scotia
and New Brunswick within the Bay of Fundy. All these
questions were, however, placed in abeyance by the reciprocity
treaty of 1854 (see p. 96), which lasted until 1866, when it
was repealed by the action of the United States, in accordance
with the provision bringing it to a conclusion after one year's
notice from one of the parties interested.

The causes which led in 1866 to the repeal of a treaty so
advantageous to the United States have been long well under-
stood. The commercial classes in the eastern and western
states were, on the whole, favourable to an enlargement of the
treaty; but the real cause of its repeal was the prejudice in
the jnorthern states against Canada on account of its supposed
sympathy for the confederate states during the Secession war.
A large body of men in the north believed that the repeal of
the treaty would sooner or later force Canada to join the
republic; and a bill was actually introduced in the house of
representatives providing for her admission a mere political
straw, it is true, but showing the current of opinion in some
quarters in those days. When we review the history of those
times, and consider the difficult position in which Canada
was placed, it is remarkable how honourably her government
discharged its duties of a neutral between the belligerents. In
the case of the raid of some confederate refugees in Canada
on the St Alban's bank in Vermont, the Canadian authorities
brought the culprits to trial and even paid a large sum of money
in acknowledgment of an alleged responsibility when some of
the stolen notes were returned to the robbers on their release



20 2



308 Canada under British Rule. [CHAP.

on technical grounds by a Montreal magistrate. It is well, too,
to remember how large a number of Canadians fought in the
union armies twenty against one who served in the south. No
doubt the position of Canada was made more difficult at that
critical time by the fact that she was a colony of Great Britain,
against whom both north and south entertained bitter feelings
by the close of the war ; the former mainly on account of the
escape of confederate cruisers from English ports, and the
latter because she did not receive active support from England.
The north had also been much excited by the promptness with
which Lord Palmerston had sent troops to Canada when
Mason and Slidell were seized on an English packet on the
high seas, and by the bold tone held by some Canadian papers
when it was doubtful if the prisoners would be released.

Before and since the union, the government of Canada has
made repeated efforts to renew a commercial treaty with the
government at Washington. In 1865 and 1866, Canadian
delegates were prepared to make large concessions, but were
reluctantly brought to the conclusion that the committee of
ways and means in congress "no longer desired trade between
the two countries to be carried on upon the principle of
reciprocity." In 1866 Sir John Rose, while minister of finance,
made an effort in the same direction, but he was met by the
obstinate refusal of the republican party, then as always,
highly protective.

All this while the fishery question was assuming year by
year a form increasingly irritating to the two countries. The
headland question was the principal difficulty, and the British
government, in order to conciliate the United States at a time
when the Alabama question was a subject of anxiety, induced
the Canadian government to agree, very reluctantly it must be
admitted, to shut out foreign fishing vessels only from bays less
than six miles in width at their entrances. In this, however,
as in all other matters, the Canadian authorities acknowledged
their duty to yield to the considerations of imperial interests,



X.] Relations with the United States. 309

and acceded to the wishes of the imperial government in almost
every respect, except actually surrendering their territorial rights
in the fisheries. They issued licenses to fish, at low rates, for
several years, only to find eventually that American fishermen
did not think it worth while to buy these permits when they
could evade the regulations with little difficulty. The corre-
spondence went on for several years, and eventually led to the
Washington conference or commission of 1871, which was
primarily intended to settle the fishery question, but which
actually gave the precedence to the Alabama difficulty then
of most concern in the opinion of the London and Washington
governments. The representatives of the United States would
not consider a proposition for another reciprocity treaty on the
basis of that of 1854. The questions arising out of the con-
vention of 1818 were not settled by the commission, but were
practically laid aside for ten years by an arrangement providing
for the free admission of salt-water fish to the United States,
on the condition of allowing the fishing vessels of that country
free access to the Canadian fisheries. The free navigation of
the St Lawrence was conceded to the United States in return
for the free use of Lake Michigan and of certain rivers in
Alaska. The question of giving to the vessels of the Canadian
provinces the privilege of trading on the coast of the United
States a privilege persistently demanded for years by Nova
Scotia was not considered; and while the canals of Canada
were opened up to the United States on the most liberal terms,
the Washington government contented itself with a barren
promise in the treaty to use its influence with the authorities
of the states to open up their artificial waterways to Canadians.
The Fenian claims were abruptly laid aside, although, if the
principle of " due diligence," which was laid down in the new
rules tor the settlement of the Alabama difficulty had been
applied to this question, the government of the United States
would have been mulcted in heavy damages. In this case it
would be difficult to find a more typical instance of responsibility



310 Canada under British Rule. [CHAP.

assumed by a state through the permission of open and no
torious acts, and by way of complicity after the acts ; however,
as in many other negotiations with the United States, Canada
felt she must make sacrifices for the empire, whose government
wished all causes of irritation between England and the United
States removed as far as possible by the treaty. One important
feature of this commission was the presence, for the first time
in the history of treaties, of a Canadian statesman. The astute
prime minister of the Dominion, Sir John Macdonald, was
chosen as one of the English high commissioners : and though
he was necessarily tied down by the instructions of the imperial
state, his knowledge of Canadian questions was of great service
to Canada during the conference. If the treaty finally proved
more favourable to the Dominion than it at first appeared to
be, it was owing largely to the clause which provided for a
reference to a later commission of the question, whether the
United States would not have to pay the Canadians a sum of
money, as the value of their fisheries over and above any con-



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