The French Shore Problem in Newfoundland: An Imperial Study 9781487584115

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THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

CANADIAN STUDIES IN HISTORY AND GOVERNMENT A series of studies edited by Kenneth McNaught, sponsored by the Social Science Research Council of Canada, and published with financial assistance from the Canada Council. l. Church and State in Canada West, 1841-1867. By John S. Moir 2. The French Shore Problem in Newfoundland: An Imperial Study. By Frederic F. Thompson

The French Shore Problem in Newfoundland AN IMPERIAL STUDY

BY

Frederic F. Thompson ROYAL MILITARY COLLEGE OF CANADA

UNIVERSITY OF TORONTO PRESS : 1961

Copyright, Canada, 1961 by University of Toronto Press Printed in the Netherlands Reprinted in 2018 ISBN 978-1-4875-7360-7 (paper)

This volume is affectionately dedicated to my wife

RUTH HELEN

PREFACE Tms WORK was originally prepared as a doctoral thesis at the University of Oxford, and began as a mere examination of the complications relating to French treaty rights in Newfoundland. It was soon obvious that the subject could not be examined in vacuo, for the influence of the colony of Newfoundland became increasingly apparent, changing what began as an international problem between Britain and France into a triangular conflict involving severe strains on the imperial connection, and on the colony's relations with Canada. If Newfoundland can be called the Cinderella of the Empire, then certainly Canada was one of the notorious step-sisters, and very often the United States took on the appearance of the handsome prince. The story of the Anglo-French fishery at Newfoundland falls easily into three phases. The first was from Cabot's voyage in 1497 to the Treaty of Utrecht in 1713, a period when both countries manreuvred for control of this strategically located island, with victory finally going to Britain. During the whole of this time it can be said with much truth that Newfoundland as a colony did not exist even though several settlements were established during the seventeenth century. By the Treaty of Utrecht the French accepted British sovereignty over the island, and the British recognized that the French possessed certain fishing and territorial rights. These rights underwent complicating changes by subsequent treaties in 1763 and 1783, but even up until the latter date the control of the treaties with France (and after the latter date, with the United States) lay completely with the Imperial government. However, Britain's wars with France between 1793 and 1814 created conditions in which Newfoundland emerged as a distinct colony, no longer wishing to be a submissive ward of the Admiralty, or just a fishing station during the summer months for fishermen from Europe. The third period began with England's recognition of a colony where she had wished no colony to be. It continued with the grant of representative government in 1832, responsible government in 1855, and ended in 1904 after fifty years spent by colonial governments endeavouring, and with a large measure of success, to persuade England to dissolve her treaties with France made at Newfoundland's expense, by new arrangements made at her own, and Africa's. The story of the French shore problem is, then, not merely concerned with international treaties which both Britain and France interpreted to their advantage, but it is also much of the story of Newfoundland's emergence from Imperial proscription. FREDERIC F. THOMPSON

Royal Military College of Canada Kingston, Ontario December 1960

ACKNOWLEDGMENTS MY SINCERE APPRECIATION is extended to the Social Science Research Council of Canada, and the Canada Council, for grants made towards research and publication; to Dr. Norman H. Gibbs, All Souls College, Oxford, for direction during the preparation of the thesis; to Professor Gordon 0. Rothney, Memorial University, St. John's, Newfoundland, and Professor J. M. S. Careless of the University of Toronto, for reading the thesis and offering advice upon its publication; to the staffs of the Public Record Office, Chancery Lane, London, the Commonwealth Relations Office Library, the Foreign Office Library, the British Museum, Colindale, the Royal Commonwealth Society Library, Rhodes House Library, Oxford, the Gosling Memorial Library and the Memorial University Library, St John's, Newfoundland, for their help in obtaining the voluminous papers pertaining to this work. It is impossible to assess the value of my wife's contribution to this volume, but for the deficiencies I, alone, am responsible.

CONTENTS

.

vii

ACKNOWLEDGMENTS

viii

PREFACE

.

•

.

1832

3

1.

THE ANGLO-FRENCH FISHERY IN NEWFOUNDLAND BEFORE

2.

THE FRENCH AND A NASCENT COLONY .

25

3.

OCEANIA AND THE TREATY COAST

.

48

4.

THE BAIT ACT: COLONIAL SELF-ASSERTION

74

5.

THE LOBSTER MODUS VIVENDI

93

6.

THE KNUTSFORD BILL

120

7.

ASSESSMENT AND ATrRITION

150

8.

THE MIDDLE WAY

176

•

APPENDIXES

1. Initial Agreements Relevant to the Treaty Shore

191

2. Lobster Modus Vivendi, 1890

194

3. "Knutsford Bill'' .

195

4. The Permanent Bill

196

5. The Newfoundland French Treaties Act.

198

6. Convention ... Respecting Newfoundland, and West and Central Africa

199

7. British Permanent Officials . . . . . . . . . . . . . . . . 200 MAPS

General map

201

French and American shores .

202

North Atlantic fishing banks and principal baiting areas .

203

BIBLIOGRAPHY

205

NOTES.

213

INDEX .

217

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

CHAPTER ONE

THE ANGLO-FRENCH FISHERY IN NEWFOUNDLAND BEFORE 1832 IN 1497, under letters patent granted by Henry VII of England, John Cabot discovered the land which he called "Prima Vista," and a "great multitude of certaine bigge fishes much like unto Tunies, (which the inhabitants call Baccalaos) that they sometime stayed shippes." 1 From the time of his voyages, if not earlier, European interest in Newfoundland was constant, but it was the cod in the adjacent waters that held the chief interest and remained the attraction for centuries. The cod fishery of the northwestern Atlantic never became the monopoly of one country. Whether the credit for having first successfully exploited this fishery belongs to the Portuguese or the French is a moot point, but that the latter were fishing at Newfoundland in 1504 seems certain. There are records of English attempts to fish, trade, and settle in the island during the first half of the sixteenth century, but formidable participation did not come until fifty years after Cabot's voyages, and particularly during the reigns of the later Tudors. Spanish interest dates from about 1540, but rapid growth was followed by gradual decline, and Portugal, falling under the thrall of Spain, disappeared as a serious rival, so that at the beginning of the Thirty Years' War France and England were the chief contenders for the Newfoundland fisheries. England's growing interest in Newfoundland was reflected in the visit of Sir Humphrey Gilbert in 1583. In agreement with certain adventurers of Southampton he sailed for the island, claimed it for the Crown of England, and made laws for the governance of all in Newfoundland and of all who were to settle in his colony, a nucleus of which he left to govern during his absence. It was here that antagonism was first aroused between those who intended to establish permanent settlements in the island and the adventurers who preferred only occupation during the summer fishery . Caught unawares, the shipmasters within Gilbert's reach had to submit, but fortunately for them the little colony grew discouraged when their guardian sailed for home, and soon they too departed. So far England had done nothing new in Newfoundland, for in asserting English sovereignty Gilbert did no more than had been done by Jacques Cartier, who in 1535 "hissa le drapeau frarn;ais sur les cotes de Terre-Neuve," 2 and in 1540 went to Newfoundland with a number of colonists. A comparison of Gilbert's short-lived efforts on the east coast with the fearless explorations of Cartier some fifty years before on the west reveals the folly of dating sovereignty from 1583. The nearest England came to sovereignty in the sixteenth century was in the overlordship exerted by her shipping captains in the harbours visited during the summer, and in the consolidation of the English fishery on the east coast south of Cape Bonavista which tended to deflect the French to more distant parts of the island. Gilbert found no French fisherman in St. John's harbour

4

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

when he visited it, but they were in nearby harbours such as Renewse, along the south coast towards Cape Breton, at the Magdalen Islands, and on the more northerly shores, and during the last quarter of the sixteenth century they took an increasing interest in the Banks. The concentration of English fishermen (largely from Somerset and Devon) on the eastern shore was partly dictated by a shortage of salt, which forced them to seek drying areas adjacent to the fishing grounds and to develop the dry fishery, which required less salt than the green generally practised by the French. A greater supply of salt and a more extensive domestic market encouraged the French to exploit a larger area. Thus, although European nationalism may be blamed for the establishment of two separate fisheries, the variation in method encouraged the English to limit, and the French to extend, their areas. But it would be wrong to assume that these divisions were distinct, or that a monopoly was established by either power in its respective sphere. During the seventeenth century the English fished north of Bonavista and lived in French harbours, and their sack ships visited fishermen there; at the same time Frenchmen despatched sack ships to the English shore often before the English could arrive. The shores which each controlled represented the minimum with which each would be content, but the full ambition of French and English during the seventeenth century was the monopoly of the Newfoundland trade and fishery. As a means of establishing a monopoly the two countries carried out schemes of colonization. It is not sufficient to consider only the projected settlements in Newfoundland when tracing this policy. The great fisheries along the coast and about the island were only parts of the Atlantic and St. Lawrence system, and the strategy of the north Atlantic must be considered as a whole. Suffice it to state here, however, that the French seem to have assessed the strategic value of Newfoundland better than the English: they realized that Newfoundland is an integral part of the north bank of the St. Lawrence River, and invariably treated it as such, seizing the south shore, fortifying Placentia and keeping it in close communication with Quebec. 3 The English attitude to the island was more complex. The merchants of England's West Country, dependent on the summer fishery, waged almost ceaseless efforts to prevent Newfoundland from becoming a plantation, while merchants of Bristol, London, and Southampton supported colonists, who would carry on trade through them. The government approved several early efforts to establish a colony, and before the Interregnum several charters of settlement had been granted. Those to Sir Humphrey Gilbert in 1578, to the Earl of Northampton and others in 1610, to Sir George Calvert in 1628, and to Sir David Kirke in 1638 are among the better known. None of the attempts can be considered a success, but judging by later colonial development in Newfoundland, there seems little doubt that those early attempts would have led to more satisfactory results had they not been opposed by the West Country merchants. After the failure of Sir David Kirke's enterprise, moreover, the English government gradually became first an ally of these merchants, then a prime mover in anti-settlement policy. The West Country merchants and the English government had different reasons for their parallel policies. These merchants, independent traders, had motives

ANGLO-FRENCH FISHERY IN NEWFOUNDLAND BEFORE

1832

5

of prudence and profit to encourage them, and from a commercial point of view their designs were not adverse to the economic prosperity of England. By real or specious arguments they sought to promote legislation which would prevent the Newfoundland fisheries from falling into the hands of colonists. A real argument which appealed to the English government was that if the residents were encouraged they would dispossess the transients and place the fishery beyond imperial control. A specious argument which still persists was that the severity of the climate, the paucity of good places to settle, and the infertility of the soil rendered Newfoundland an unfit place to establish permanent communities. France's attempts to establish colonies in Newfoundland during the seventeenth century were aimed at bringing her parts of the island under more direct control. In 1604 the first French establishment was begun at St. Pierre and Miquelon and in 1627 Newfoundland was included along with Hudson Bay in the charter of Louis XIII to the Associates of New France. Real interest in colonization, however, appears to have begun with the official establishment of Placentia on the south coast, which in 1662 was settled, fortified, and garrisoned. The French controlled a greater part of the Newfoundland shore and consequently there was little jostling between the transient and the settler. Even though the French fishery was largely a ship fishery, with some residents and byeboat keepers at Placentia, St. Mary's and St. Pierre, quarrels did arise, but these were kept at a minimum by the presence of a royal governor at Placentia after 1672, who was able to settle disputes on the spot with the backing of royal authority. Enormous catches were made by the French on the banks, which was a year round fishery, and on the shore north of Cape Bonavista. Besides, the French fishing industry at Newfoundland had a considerable edge over its English counterpart in its control of the home market, quicker despatch of a superior product to Spain, Portugal, and Italy, cheaper provisions and production, and the fishery's sounder financial basis, which obviated the necessity for merchants to mortgage their ships before sending them to Newfoundland. In some respects the English navigation acts even operated to French advantage. The act of 1660 prevented foreign ships from engaging in the fishery trade if their cargoes were bound for England, but not if the cargo went to a foreign market, which was the usual thing in the Newfoundland trade. An act of 1663 did not change that situation, but added a further foreign advantage when it allowed the free importation of salt into New England and Newfoundland. Salt ships that had called at ports in France and Spain were able to smuggle many goods into these areas in the guise of salt, to the detriment of the English merchants who sought a monopoly of the provision trade. Even today the full story of the French in Newfoundland has not been revealed, and it is not surprising therefore, to find in the English Court in the seventeenth century considerable ignorance of the true situation. Naturally enough the government was dependent to a great extent for information on the reports of those engaged in the Newfoundland trade and fishery. These reports do not speak with one voice, for much depended upon whether or not the authors favoured colonization in the island. In 1666, for example, certain complaints reached England about the forceful removal of an Englishman on the south coast, and the refusal of the French to pay the 5 or

6

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

10 per cent levy which the English from time to time sought to impose upon the French as an act of sovereignty. These actions alarmed the pro-colonials, who argued that effective measures should be taken by the English government to offset the fortified garrison at Placentia, and that the levy should again be forced upon the French because in the days when Kirke had done so the English fishery had prospered. If the French succeeded in controlling Newfoundland, it was argued, they would be in a position to offer the Atlantic colonies serious menace. ' On the contrary, the West Country merchants informed the government that the French had not trespassed on the English zone, and that the fortifications at Placentia were not for offensive purposes but merely to protect the French from encroachments by the English, and to safeguard their fur trade. It is not definitely known whether the West Countrymen really believed this, or whether they preferred to face French competition rather than suffer the presence of colonists in the best harbours, backed by their commercial rivals. Lounsbury has suggested that to gain favour with the government they may have capitalized on the "pro-French leanings of the Court of Charles II during those years." 4 Innis seems to suggest that the difficulties of the West Countrymen were many, and that they endeavoured to remove the settlers because the French were more completely beyond their influence: The Newfoundland fishery as conducted by the English had been handicapped by competition from France, New England, and the carrying-trade, by wars, and-scarcely less serious-rumors of wars. It had borne grudgingly the tax of impressed sailors levied on an area favored by legislation as "the nursery for seamen". An absence of military defense because of a policy imposed in the interests of the navy involved serious burdens incidental to the destruction wrought by wars. The support given by the fishing ships to the navy weakened the position of settlements and the development of military defences. The prosecution of the settlements by land defense was neglected because of reliance on naval defense, and because the additional taxes would sap the strength of the English fishery in competition with the French. On the other hand the growth of settlements in spite of restrictions involved exposing them to attack from the French and disastrous losses. Settlements and the growing importance of the sackship trade, and of London interests fostered by New England support, necessitated greater attention to land defense which called for a type of government other than that provided by the admirals of the fishing ships. The burden of naval defense strengthened New England and weakened the fishing ships of the West Country. 5

After the third Dutch War in the 1670's, when Holland's power was considerably diminished, France loomed larger in official opinion as a rival to England's trade and fishery. Anxious to secure more reliable information concerning French activities in Newfoundland, the Lords of Trade thus recommended that the commodores who convoyed the fishing fleets should make investigations and report their findings. The influence of the West Countrymen prevailed, despite reports -some from merchant groups favouring colonists, and others from commodoresthat any serious attempt to force out the planters would only send them fleeing to the French for protection, whose fishery under official protection was prospering to an alarming degree. The full danger of French competition was lost amid the monopolistic endeavours of the West Countrymen, the controversy between them and the planters, and the London merchants' lack of influence in official places. Nevertheless the accession of William III was followed by a policy for both the suppression of settlement in Newfoundland and the circumscription of the French fisheries. In his declaration of war, May 7, 1689, Wil-

ANGLO-FRENCH FISHERY IN NEWFOUNDLAND BEFORE

1832

7

liam III complained that it was "not long since the French took licences from the English Governor of Newfoundland, to fish in the seas upon that coast, and paid a Tribute for such Licences, as an Acknowledgement of the sole Right of the Crown of England to that Island and yet of late, the encroachment of the French upon Our said Island, and our Subjects Trade and Fishery have been more like the invasions of an Enemy, than of becoming Friends, who enjoy the advantages of that Trade only by Permission." This appears to be a determination to enforce by war a state of things which inconveniently had not existed prior to French expansion. The War of the League of Augsburg brought no such enforcement, and the French continued at Placentia and fished as before in their accustomed places. Yet William preferred not to relinquish his assumed sovereignty over Newfoundland. In 1698 Parliament passed a famous, or infamous, act (10 and 11 Will. III, c. 25) which the West Country merchants hailed with joy because it marked the triumph of their anti-colonial policy, and which the pro-colonials considered impolitic as well as unjust. The act declared that "no Alien or Stranger whatsoever (not residing within the Kingdom of England, the Dominion of Wales, or Town of Berwick-upon-Tweed) should at any Time hereafter take any Bait or use any Sort of Trade or Fishing whatsoever in Newfoundland, or in any of the Islands or Places above-mentioned." A Foreign Office memorandum of 1889 claimed that it "is difficult to imagine any more formal assertion of the sovereignty of the English Crown," but in the light of subsequent events it would be difficult to imagine a more ineffective assertion of sovereignty over Newfoundland. Though the act remained in force for well over a century, the settlements it purported to discourage increased, the trade it was designed to aid declined, the navy it was framed to strengthen received little benefit, and the French it forbade to fish continued to do so long after the measure was repealed. Between 1699 and 1713 the commercial competition and active enmity of France were in large measure responsible for discouraging the English overseas fishery. The French were accused of pursuing a policy of expansion on the north Atlantic fishing grounds in order to gain commercial and naval supremacy. It was variously estimated that France, between 1699 and 1713, had four to eight hundred ships, and sixteen to thirty thousand men occupied in the fisheries of Newfoundland, Nova Scotia, the Banks, and the Gulf, while England sent only about five thousand men, not including the New Englanders, whose settled fishery was in competition with that of the mother country. The desire to have France completely removed from the fishery gradually increased during the period of the War of the Spanish Succession. It became a matter of imperial importance instead of merely a fishery interest though a reservation must be made in the case of the West Country merchants, since they appeared unmoved over the settlement achieved at Utrecht that closed the war in 1713. The British government received ample advice from merchants on the best ways of dealing with Newfoundland in the negotiations with a defeated France at Utrecht. Opinion was heavily in favour of completely excluding the French from the Island, for if they were enabled to maintain their former position on the south coast, they would have the best fishery and if a French prince were also to rule over Spain, Naples, and Milan the dangers to English trade would

8

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

be startlingly apparent. If they were removed from Placentia, but allowed to fortify St. Pierre, the English defences at the former place would be rendered impotent. To send them to Petit Nord would give them control of the short route to Canada and put them dangerously in touch with Canadian Indians. Another serious objection to re-admitting the French was revealed in a letter to the Duke of Shrewsbury, the plenipotentiary in Paris, from Queen Anne, on December 11, 1712, which indicated the threat to any future Anglo-French amity consequent upon permitting the French to fish and dry on the shores of Newfoundland alongside the English. Queen Anne and her memorialists were disappointed, however, for although France secured the exclusive use of Cape Breton, England had to share the Newfoundland fisheries with her late enemies. M. Torey had protested that those fisheries were indispensable to French economy, and Louis XIV intimated that he was prepared to fight another war rather than surrender all claims to them. By article 13 of the Treaty of Utrecht, 6 France recognized the sovereignty of England over Newfoundland. She yielded Placentia and all other places which she had held, although her fishermen were to be allowed to fish and dry on the coast from Cape Bonavista passing by the north to Point Riche on the west coast. It was this article which legally established the dominion of England over Newfoundland, and which formed the true basis of British sovereignty, not the claims of 1497 or the largely unsuccessful attempts at charter settlement between 1578 and 1637-not to mention ineffectual clauses in imperial legislation. The treaty plainly indicated the growing strength of Great Britain in North America. Still, all the victories of Marlborough had not sufficed to exclude the French from Newfoundland completely, though they had been transferred to what was thought the least important part of the coast for the fishery and defence. To the English merchants, other than those of the West Country, this provision of the treaty was a great disappointment; a true mercantile policy for the fisheries had been sacrificed to procure a speedy peace with France. Yet West Country merchants were not overly disappointed with the settlement, for they had long held that the French menace was exaggerated, and, not yet aware of the value of the west and northeast coasts, they were at least glad the French had been removed from the south, forbidden on the east, and packed away to the north. Better the French at Petit Nord than their London opponents, with their settlers, engaged in establishing a resident fishery. After the peace, old habits prevailed as French fishermen continued to visit the south coast. These encroachments were checked, but only by a relaxation of the prohibition against settlers, for otherwise later French visits could not have been detected and discouraged. More serious trespass was committed upon the west coast south of Point Riche, where the French, despite naval and gubernatorial information to the contrary, fished for cod and salmon, trapped for fur, occasionally stayed the winter, and sometimes "lost" themselves in the woods to escape the reach of the law. The French surreptitiously appropriated an extra two hundred miles of coastline, and when later challenged on the encroachment, denied British assertions that Point Riche was located at 50° 30' north latitude, and put forth a contention for 47° 40', which was really the position of Cape Ray.

ANGLO-FRENCH FISHERY IN NEWFOUNDLAND BEFORE

1832

9

Of the coasts of Newfoundland none was more neglected than the west coast between Cape Ray and Cape Norman. Until the survey of James Cook later in the eighteenth century, the British government were not well informed about the west coast, and in a sense it was French territory in spite of the surrender of 1713. Numerous French names prove the consistency of French visits, but until the last quarter of the seventeenth century settlement was improbable there, and no less on the northeast. Added to the rigours of long winters and icebound harbours were dangers from Indians and Eskimoes, both of whom frequented Petit Nord at this time. No English records exist of French settlement on the west and northeast coasts from 1680 to 1713, but as the Treaty of Utrecht forbad French settlements it is probable some had been established. By this period the Beothuk Indians had driven the Eskimoes to Labrador, from where they never returned, and had themselves retired to the interior of the island. Danger of raids was thus removed from the Petit Nord. The establishment of a fortified settlement at Placentia in 1662 probably encouraged permanency in other French regions, and as the fishery increased in all areas there arose a more urgent need for some fishermen to remain behind to protect property and prepare for the next season's fishery. These developments, of course, were hindered by the arrangements of 1713. The history of Newfoundland during the first century of recognized British sovereignty was one of official opposition to permanent settlement, with intervals wherein the force of circumstances compelled the establishment of institutions indispensable to settled communities. From 1699 to 1708, under the terms of 10 and 11 William III, c. 25, the administration of justice was left to the tender mercies of .t he fishing admirals, men well versed in the ways of fish, ignorant of the law, quick to judge in their own interest, and little stirred by affection for the settlers. In 1708 an order-in-council placed supreme command on shore iD the hands of the commodore of the Newfoundland convoy, "a shift fro:-n the superlative to the comparative degree of badness," which command began with the arrival and ended with the departure of the commodore, leaving the settlers during the winter months to their own devices. The industrious were at the mercy of the idle, those who attempted to retain a semblance of Christian society were offended by the profligate, and any hope for a law-abiding community was mocked by the ease in which the most heinous crimes were committed without retribution. Armed with a sizable list of grievances West Country interests sought to prevail with the British government to prevent an endorsement of civil government: they declared that a permanent community was an encouragement to smuggling, a convenient location for the abduction of experienced seamen by New Englanders, and a threat to the transient fishery (so important to the navy) because the planters pre-empted the available fishing rooms. Newfoundland's unhappy situation reflected the British government's uncertain state of mind. Settlement should have been discouraged, but it increased; settlers should have been removed, but it was never expedient. For the attainment of a minimum of order while the government evolved a satisfactory policy, certain temporary prerequisites of ordered society were established. These by their very nature, despite their inadequacy, gradually gave permanence to the community which was officially opposed. In 1728 Captain Osborn of H.M.S. Squirrel was

10

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

commissioned governor and commander-in-chief of Newfoundland; he was allowed to appoint justices of the peace and various other officials to aid in the administration of the island's affairs. The chief weakness of this innovation was its seasonal character, for the settlers were still left largely without legal government when the governor departed at the end of the summer. Even in summer its operation was hindered by the deliberate obstruction of the fishing admirals, representing the West Country merchants, who openly asserted that the power of the justices was based only on the King's Commission while theirs rested firmly upon Imperial statute. None the less the development was a slight improvement for the settlers. A court of vice-admiralty was established in 1737; four years later a naval officer was appointed to collect clearance fees from vessels engaged in the fishery. The clause in the act of 1698 whereby criminals were to be taken to England for trial had proved hopelessly inadequate, and to make the execution of justice in serious crimes more effective, the commission of Governor Drake in 1750 included power to appoint commissioners of oyer and terminer. In 1762 a custom house was established in St. John's. The shore assigned to the French had been chosen, among other reasons, because it was little known and appreciated by the British negotiators, and because it was rarely visited by British fishermen. To place the French there meant a continuity of two separate fisheries and the prevention of frequent quarrels. For forty years after 1713 the British contented themselves generally, though not entirely, with the traditional shore between Cape Bonavista and Cape St. Mary and the newly acquired shore westward from Placentia. Hence the French enjoyed a virtual monopoly of their shore, particularly north of Cape St. John, and exercised extra-territoriality. The first fishing captain to arrive became admiral for the season under a French naval ordinance of 1681, and French naval vessels came to enforce regulations of French making, and to expel, by force if necessary, all British intruders. Whatever the "true" interpretation of the treaty of 1713, custom at least persuaded the French that the fishery on the treaty shore was theirs alone during the season. The question of the nature of French rights came into prominence in the mideighteenth century, not merely as an academic discussion, but because certain factors arose which permanently altered conditions in Newfoundland, and made the "French shore" problem a topic of public and diplomatic discussion for one hundred and fifty years. War has its favourites, and during the Seven Years' War the settlers profited at the expense of the transient and the French fishermen. Along the British shore were established the main concentrations of illegal settlers.7 Each new resident was anxious to secure an unoccupied cove, and gradually all available places were filled. Wherever possible the "liveyers" encroached on French preserves-where they remained if they escaped the vigilance of French naval authorities-or ingratiated themselves into French favour. This process alone would not have precipitated the problem into the arena of diplomatic quarrels, were it not that as the British transient fishermen found themselves shut out from the traditional shore, they too moved northwards to the emptier regions beyond Bonavista. Slowly it became known that the French had good fishing grounds, and this, linked with the need for fishing space, prompted the pressure which the West Country interest brought to bear on the British government to support a concurrent fishery. In the absence of the French, the

ANGLO-FRENCH FISHERY IN NEWFOUNDLAND BEFORE

1832

11

settler and those transients not impressed by the navy moved freely on the treaty coast. Hence when negotiations were begun for a peace, most urgent representations were made to the government to eliminate French rights and give the whole island into the hands of the transients. Once again those interested in the Newfoundland trade and fishery raised their voices during the negotiations to insist upon a British monopoly. Mingled with the familiar cry that French naval power was nurtured upon the Newfoundland fisheries was the economic undertone that the fish procurable at Petit Nord was particularly acceptable to British Mediterranean markets. William Pitt, probably urged by City merchants, supported the complete exclusion of France from the fishery, and considered the consummation of such a policy worth "another campaign or two." But France was not easily overcome, for following the resignation of Pitt in October 1761, and the entry of Spain into the war early in 1762, the French showed how deadly serious they were about the Newfoundland fisheries. When the loss of Louisburg was accepted and only St. Pierre and Miquelon offered upon very strict terms as a shelter for French fishermen, a determined attempt was made in the summer of 1762 to seize Newfoundland. The effort was ultimately unsuccessful, but it impressed the opponents of Pitt, emphasizing what they already suspected, that a maritime power like France could never willingly give up the source of her naval strength. The argument for the inclusion of France in the Newfoundland fisheries was supported by a clear statement of the Board of Trade which contended that the present war was not caused by French encroachments in the fishery, and further military engagements to exclude France would probably arouse European fears of a British monopoly of the fish trade. With France expelled from Canada her participation in the fisheries would be much diminished, and in any case a British monopoly would not open the lucrative French market. Further weight was added to these points by the Duke of Bedford, the ambassador in Paris, who attempted to put the subject on an ethical plane by asserting "that it was unnatural to expect a maritime country like France to cede her rights to the fishery . .. and that England should recognize that France had a right to develop." Prudence, then, determined that by article 5 of the Treaty of Paris, February 10, 1763,8 French participation in the Newfoundland fisheries on the terms granted in 1713 should be confirmed except that it was conferred as a "liberty." Although it could be said, from a strictly literal reading of the text, that France, by accepting the term "liberty," had renounced her claim to a residual right in favour of one conferred by Britain, any further comment upon the use of the term would be futile. It had little effect upon later developments, and the French gave no importance to it. Once the French had surrendered their North American empire Great Britain felt it safe to allow them to return to the waters south of Newfoundland, from which they had been ousted in 1713. Article 6 of the Treaty of Paris9 ceded the small islands of St. Pierre and Miquelon for service as a shelter to French fishermen. They were not to be fortified. These islands, comprising about one hundred square miles, formed of solid masses of granite with a few lakes and streams, a thin covering of soil, and scanty vegetation, must have looked microscopic to a nation once well on the way to supremacy in North America. In 1536 Cartier

12

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

found French ships at these islands; by the seventeenth century the French were predominant; in 1700 they were fortified against the British into whose hands they fell in 1702. After 1713 British fishermen from the West Country, Jersey, and Guernsey, who had lost their fishery on the east coast, resorted to the islands to fish and trade. It was not without protest, therefore, that in 1763 St. Pierre and Miquelon were returned to the French. The physical proximity of the islands to Newfoundland, and the humiliation caused France by the alarming diminution of her North American empire, created a condition fraught with hazard. On March 15, 1763, the Board of Trade advised the British government that because there were not enough resources in the islands for them to be a base for a resident fishery, and because French rights on the northeast coast of Newfoundland afforded better facilities for drying their Bank-caught fish, the first danger to be apprehended from St. Pierre and Miquelon was that of illicit trade with North America. Aware of the danger, the British government interpreted article 6 in its narrowest sense. To deprive the French of cheap materials for their boats and to prevent an effective competition in the fishery, contact with Newfoundland's timber and bait resources was discouraged. Concern too for the British monopoly of the Newfoundland provision trade was embodied in this policy of isolation. France also executed her plan. The islands became a centre of the French fishery, a shelter and gathering place for fishing ships, and an entrepot for supplies, and they provided natural flakes for the drying of some of their catch. French warships which convoyed the fleet made their rendezvous at the port of St. Pierre; the settlers practised a modest shore fishery, and not least, an extensive trade was created with North America. In view of the developments on the treaty shore during and after the Seven Years' War, it is evident that French fishermen were in need of more support than they themselves could muster. Upon their return to the shore after the conflict, they found many of the best rooms between Cape Bonavista and Cape St. John occupied by settlers. Added to these intrusions were those of the British transients who had learned the value of the "French shore" and were unwilling to deprive themselves of a share in it. In support of their action, these men invoked the authority of 10 and 11 William III, c. 25, to support their claim that all the coasts of Newfoundland were open to them. It would be difficult, therefore, to counter the French argument that a concurrent fishery meant a decreasing participation, and ultimately a negation of their treaty claims. The French knew that many of the British transients came to the treaty shore because they had been excluded from the east coast by the settlers; that some settlers, ousted by the returning transients, had moved north to Bonavista; and that in certain cases collusion took place between transient and settler to pre-empt suitable places on the treaty coast. It was convenient therefore, for reasons of their own, for both settler and transient to believe in the existence of a concurrent fishery, and it was natural for the French to deny it. At this low ebb of French imperial forhme their attempts to seek recognition of an exclusive fishery could be considered as a defensive action to preserve without diminution undefined rights conferred by treaties. The inability of _the British government to preserve an exclusive fishery for the English transients on the eastern shore was an object lesson to the French authorities. In 1764 the French ambassador threatened war unless his country

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received satisfaction on the subject of exclusive rights, and when his threat was verified in Paris the British government became more conciliatory than hitherto, but little was accomplished except to instruct naval officers on the Newfoundland station to make every effort to prevent trouble. Shortly after the peace the French government granted a bounty on their Newfoundland fishery to encourage extended operations on the treaty shore. Ulterior motives have been read into this act: and the charge is true, if the French effort to hold the whole shore against British encroachment can be called an unfriendly act. In 1770 Captain Palliser reported that the French fishery on the treaty shore was greater than the British, the latter making use of harbours not frequented by the French. While this report proves the existence of a concurrent fishery, the French bounty given to those who used new harbours showed that the presence of Englishmen was not to the French taste. The effectiveness of bounties is seen in a Board of Trade report in 1770, which blamed these subsidies for the increasing number of incidents between English and French fishermen, and though it was recognized that the bounties were a French privilege, it was hoped the practice would be discontinued. In answer to a French complaint against the trespass of settlers, the Board stated that residents were discouraged for the benefit of the French and English fishery, but there were no legal means to prevent their advance along the coast. It is hardly surprising then, in the face of such a policy, that the French should devise measures for the maintenance of their own rights as they saw them. After twelve years of uneasy peace in Newfoundland and ineffective protest by the residents, the transient fishery received a new lease on life with the passage in 1775 of Palliser's act (15 Geo. III, c. 31). The West Country merchants were once more confirmed in act their pre-eminence. The fishery which Palliser wished to continue was the ship fishery-the nursery for seamen. He despised the shore fishermen, and considered the men who followed it neither good fishermen nor good seamen. Reasons for the lack of official support for settlers in Newfoundland are varied. There is the argument that "British policy towards Newfoundland had been founded upon the supposition that a fishery carried on from English shores would benefit seapower." 10 An American historian, R. G. L. Lounsbury claims that the British government's support of the western adventurers was "not because (they) admired their methods more than those of others, but rather because they feared that the erection of colonial government and any encouragement to the Newfoundlanders would result in making the island a second New England ... [and the] British government had always before its eyes the horrible example of New England and the other 'bread' colonies of the north, which were included in the plantation system, but whose products were never suited to a regulatory system designed to promote Virginia tobacco and Barbados sugar." 11 Seamen and fishermen who stayed behind in the island were beyond the impressment officers, and too often Newfoundland was but a gateway to overly independent New England. One aspect of Newfoundland history during the eighteenth century can be seen in the alliance between settlers and New Englanders, to whom settlement was a mutual advantage in trade and fishery, and the association of the West Country merchants with the Royal Navy, the former seeking a monopoly of trade, the latter of sailors.

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THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

In spite of a legally supported transient fishery, a settled fishery of British subjects gradually established itself on sections of the coast. They settled on the south coast after the removal of the French, though progress in that region was for some time hindered by pirates. The coast between Trepassey, south of St. John's and Cape Bonavista held most of the settlers, but long before the period under review they had spilled beyond English limits. Apart from the natural increase of settlers who remained despite the failure of chartered colonies, growth in population was to a large degree due to those who were most vociferous against colonization. Contrary to law some fishing captains encouraged fishermen to remain during the winter to protect property, repair boats and gear, and gener-ally prepare for next season's fishery; shipowners could not resist the temptation to use their ships for carrying passengers to North America, many of whom got no further than Newfoundland; it was also contrary to law for shipmasters to pay their crew and fishermen more than half their wages in advance of the voyage, a ruling which offered the temptation of abandoning men to save payment of the remaining wage. Further, the harshness of conditions in the Royal Navy encouraged desertions and avoidance of impressment officers. The social and legal implications of official and mercantile anti-colonialism, and connivance at "settlement," have bequeathed an excellent opportunity to study the theory and application of mercantilism in Newfoundland.12 During the American Revolution, dissatisfaction with arrangements on the treaty coast, as well as at St. Pierre, influenced the French in their decision to support the American rebels. Article VI of the Treaty of Amity and Commerce between France and the belligerent colonies contained a renunciation by the former of any claims to conquest on the North American continent, and a recognition by the latter of the claims of France to an exclusive fishery on the treaty coast of Newfoundland. No detailed apportionment of the north Atlantic fisheries was made by the allies, but it is significant that the first plan of campaign prepared by the French in January 1778 included a naval attack on Newfoundland. The omission of the fisheries from the Franco-American treaty may not have been an indication of their insignificance, but of their great importance; for both France and the American colonies, particularly the New England group, had a serious interest in them, and neither was likely to make any commitments regarding the price until the war was won. The treaty of friendship has generally obscured the evidence of keen rivalry which existed between the old and the new antagonists of Britain. The exclusive position in Newfoundland which Britain had not achieved in 1763 certainly could not be consummated in 1783. Therefore the French again returned to Newfoundland at the conclusion of the American Revolutionary War. The British, however, drew strength during the peace negotiations from the proclivity of her enemies to nullify their alliance by clandestine parleys with their common foe. Previous to formal bargaining, the French government told Mr. Fitzherbert, the British ambassador, that it would require "the full and entire sovereignty" of the late Newfoundland treaty coast and in addition "the entire and exclusive" use of the fishery within the same limits. At their first conference the French Foreign Minister endeavoured to forestall the Americans

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by insisting upon the surrender of a large extent of the Newfoundland shore as a French reserve. An old argument was raised to support French demands for the inclusion of the whole west coast in the original treaty shore. Point Riche, the southerly limit by the treaties of 1713 and 1763, was placed by Vergennes, on the basis of Herman Moll's Map, at a point where Cape Ray is situated. Reference was also made to the quarrels between British and French fishermen which had occurred on the shore between Capes Bonavista and St. John. To obviate the clearing of this portion of the coast (which by now, owing to the complete absence of the French since 1780, was more thickly settled), it was proposed "comme un moyen possible de compenser a la France" for "la perte de la peche et de la secherie" previously possessed, Great Britain should relinquish to France "toute la cote depuis le Cap Saint-Jean, en tournant par le nord et le nord-ouest, jusqu'au Cap May." Vergennes did not request that France should have full and entire sovereignty over the region, but only that French fishermen should have exclusive rights within the limits. By this moderation he hoped to make his demand more acceptable to the British, while simultaneously acquiring an advantage over France's late confederate, "for if Britain retained sovereign power over the whole of Newfoundland, the Americans would not be in a position to embarrass their French ally with a request for participation." The implications of the French demand for an increased share in the Newfoundland shore fisheries were not lost on the British government. George III wrote to Grantham that France must be satisfied with a smaller share "unless America is not permitted to have much of that Island; otherwise between the two poor England must have the worst share." Similar opinions were held by Shelburne, who decided that France should have the northeast coast and as far as Cape Ray on the west, which was still rarely visited by British fishermen and had few settlers. Even this decision was contrary to mercantile demands, for the merchants of Poole now petitioned for the exclusion of France from Newfoundland. When the French demands were again repeated by Rayneval on his first visit to England in September, Shelburne agreed to the wisdom of separating the French and British fishermen to avoid quarrels, and went so far as to appreciate "the logic of that position and agreed that the French should have the sole and undisturbed use of their new inshore fishery." He would not, however, accept the word "exclusive" which would raise awkward issues. Pursuant to his instructions, Fitzherbert, during further discussions at Paris in September, informed Vergennes that Cape Ray was to be the limit of the French shore on the west coast. This limit at first displeased the French minister as "being so considerable a defalcation of his original demand." La Poile was then suggested as the limit of the French shore on the south coast, but when Vergennes learned from Fitzherbert that the British government would not go beyond Cape Ray "he finally acquiesced." A few days later Fitzherbert was instructed that the southern coast "was possessed of great advantages in point of harbours and fisheries, and was not, therefore, to be given up," advice which reveals the influence of the petition from the merchants of Poole. Despite further pressure during the formal negotiations to modify the decision to include a portion of the south coast in the French treaty shore, article 5 of the Definitive Treaty of Versailles, September 3, 1783, confined the French between Cape St. John by the north to Cape Ray.

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THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

The demarcation of the geographical limits of the French shore was relatively easy compared with the attempt to define the nature of the French rights which were to operate there. No serious dispute arose from the former question, but the latter furnished over one hundred years of wrangling. On October 28, 1782, Fitzherbert reported "that M. de Vergennes was not disposed to insist very strenuously upon the point" of the exclusive right. Eight days later he reported that Vergennes insisted upon it emphatically, bringing forth all his former arguments in favour of the concession. This volte-face was probably the result of intelligence that Great Britain was about to give the Americans a right to participate generally in the Newfoundland fishery along with British subjects. If such were to be the final agreement with the Americans, France could hope for no more than a concurrent fishery to be shared with new friends and old enemies. Fitzherbert endeavoured to dissuade Vergennes from insisting on the exclusive right, but "finding that what he had said had not made the desired impression, he at last ventured to propose, as a mezzo termine (taking care, however, to add that the proposition came from himself), that the said exclusive right should not be mentioned in the Treaty, but that Great Britain should promise 'Ministeriellement', to secure it to the French fishermen by means of proper instructions to that effect to the Governor of Newfoundland, an expedient which M. de Vergennes came into readily, saying that such a Ministerial assurance would fully satisfy him." This idea of Fitzherbert appears to have caught on, though official approval cannot be ascertained from government correspondence. Lord Shelburne suggested something very similar to Rayneval on November 13 when he promised that as "to the droit exclusif you can count on it, apart from the actual word, for we will give our Governors the most positive orders to safeguard the thing itself from interruption by the subjects of Britain." Referring to the preliminary articles in the course of preparation, the Secretary of State advised Fitzherbert that "great pains had been taken to avoid mentioning the fishery as exclusive, and that the third Article had been cautiously worded for that purpose .. . [and that] it was very desirable ... that it should be left entirely out, and that the French should be contented with as strong assurances of not being molested as could be given them in the King's name." The third article of the preliminary treaty signed in January 1783 did not contain any reference to the nature of French rights in Newfoundland, but limited itself to a delineation of the new treaty shore. The "strong assurances of not being molested" were conveyed to the French in a note from Lord Grantham to Fitzherbert with the injunction that the ambassador could "assure the French minister of the punctuality with which this engagement will be observed." In the course of negotiations for a definitive treaty the French attempted to have the term "exclusive fishery" inserted in the British declaration. When these attempts failed another tack was taken to achieve the same purpose. On June 18, 1783, the draft of the French counter declaration was sent to the British government which included the words "la peche exclusive sur Jes cotes de Terre-Neuve." Instructions were then sent to the Duke of Manchester to insist upon the omission of the word "exclusive," and if he failed, to present another British declaration in answer to the French counter declaration "that the King of England did not mean to grant an exclusive fishery any otherwise than by

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ordering his subjects not to molest by concurrence." The French government were dissuaded from this proposed counter declaration, and agreement was reached upon the wording of the final documents, which were signed on the same day as the Definitive Treaty of Peace, September 3, 1783. The question naturally arises at this point: What did the two declarations mean in relation to the nature of French rights on the treaty shore, and the extent of British responsibility to maintain them? All arguments, official and private, have been as attempts to force a large inflated balloon in too small a box. The British and French declarations represented, essentially, a compromise, and inherently such arrangements are dangerous. For their maintenance compromise was constantly necessary, which in this case meant repeated readjustment to changed circumstances. The most serious results of these declarations did not arise until after 1815, when for over seventy years the two governments sought to substitute further compromises in the form of less equivocal agreements. At the discussions of August 21, 1782, Vergennes informed Fitzherbert that France would not be satisfied with the restitution of St. Pierre and Miquelon because St. Pierre harbour was not commodious enough for the fishermen and warships of France. The islands were too far from the Gulf, and too small to support a large colony. If the west coast were ceded to France it would serve her fishermen as a base for the Gulf fisheries, but if the south coast were to remain British the value of St. Pierre would be diminished. Whatever island was ceded to France it must be in full sovereignty, and such a transfer would be regarded "in the light of a conditio sine qua non." Vergennes suggested Belle Isle off the northeast coast, which "directly opposite the scene of the Grand Bank fisheries could be a rendezvous for the French ships and a centre from which effective protection could be given." French experts quickly put Vergennes right in the matters of geography and strategy: Belle Isle was not opposite the Grand Bank fishery and suitable neither as a base for fishermen nor for naval vessels to protect them. He did not seem, therefore, very perturbed when Fitzherbert told him that the British government were finding great difficulty in accepting the idea of ceding an island other than St. Pierre, but he hoped that the restitution would not be burdened with the restrictions applied in 1763. British knowledge of certain parts of Newfoundland had considerably increased during the past twenty years. Captain Cook had made important surveys of the island, and one of the officers who accompanied him, a Lieutenant Lane, was sent for by Shelburne to give advice on the question of island strategy around Newfoundland. Lane stated that only Fogo Island was suitable for the purposes required by the French, but any possibility that this island would be ceded was dropped when the officer indicated that it could be effectively fortified and St. Pierre could not. Further, if it were decided to begin the treaty shore at Cape St. John, Fogo Island's proximity to the British coast would create another disadvantage. The sequel to these negotiations was the restitution of the islands of St. Pierre and Miquelon to France. From this settlement the problem of St. Pierre and Miquelon takes on added complications. Article 6 of the Treaty of Paris, 1763, was definite that the islands were ceded only as a shelter for French fishermen, and were to remain unfortified. In 1783 these limitations were not renewed, for article 4 stated that "The Islands of St. Pierre and Miquelon ... are ceded in full right, by the present

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THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

Treaty to His Most Christian Majesty." Had the matter ended there, the future colony of Newfoundland would have been relieved of an additional pretext for complaint. Unfortunately the last paragraph of the declaration asserted that "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 fishery between the said Islands, and that of Newfoundland, shall be limited to the middle of the channel." This rider conferred upon posterity two exasperating riddles: What constituted a real shelter for French fishermen? And at what phase of development would the island colony become an object of jealousy? When the pertinent treaty stipulations were debated in Parliament violent arguments ensued. In support of the government some reasoned "that peace on any terms, by breaking the powerful confederacy that was against us, and giving us time to recruit our wasted strength, was preferable to a continuance of the war," others that the peace needed no defence, its terms were "fair and honourable" and "adequate to the just expectations of the nation." Notwithstanding the official view towards the declaration, Parliament believed that it implied an exclusive right for the French. The concession was defended on the grounds that simultaneously Great Britain had maintained for herself "an exclusive right to the most valuable banks," and had obviated a further outbreak of unpleasant incidents by the policy of separate fisheries. The opposition were not persuaded to accept these justifications. They countered that from France had come the idea of exchanging part of the northeast coast for an extension on the west, and therefore, "it was absurd to suppose that she had chosen for herself the worst stations." The west coast had the best fishing grounds and "the concession was of a new and important nature, the consequences of which it was not easy to foresee." 13 After 1783 the French made every effort to exploit the fishery on the new shore. In 1785 the bounty system was reintroduced to encourage participation and offset the losses incurred by the industry and trade during the late war. The practical monopoly of the French West Indian trade was placed in Frerich hands by the grant of a bounty, and trade with Europe was encouraged by a bounty on dried fish sold in European markets and carried to the ports in French vessels. In view of the dangers present on the west coast, which had very few convenient and safe harbours, and to promote an interest in the newly acquired regions south of Point Riche, a special bounty ·was granted to all crews of ships fishing about the Bay of Islands. Abetted by these bounties the French soon secured a predominant position on the northeast and west coasts. Reasons for the reintroduction of the bounty system are to be found in the French government's concern for the welfare of their fishing population, and also in the continued survival of the idea that the fisheries about Newfoundland, particularly on the Banks, were the chief nursery for the seamen required for the navy. Notwithstanding these bounties and the monopoly of their home markets the French failed to maintain large numbers upon the treaty coast. Apart from the influences of extraordinary French domestic politics, and the gradual deteriora-

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tion of Anglo-French relations, there were certain other disadvantages native to the Newfoundland fisheries which contributed to a progressive diminution of French participation. Weather conditions and navigation on these northern and western shores were far more difficult than those experienced by Englishmen on their coasts, and by Frenchmen in their home areas and on the Banks. Furthermore, wages and provisions were not attractive enough to entice men to the distant regions of Newfoundland. Complaint was also made by the backers of these annual voyages that the skill of the French fishermen enlisted under the above conditions was not sufficient to enable them to secure a catch large enough to make their risks worth while, and under the terms of the treaty the French were not permitted to remain after September, a prohibition which hindered them in making necessary repairs on hshing rooms and gear during the winter in readiness for an early start the next season. Further, the presence of British transient fishermen on the treaty coast, and the pre-emption of the best fishing places by the settlers despite the periodic visits of British men-of-war, added to the annoyances endured by the French. Complaints from both sides poured into official ears, and there were enough valid ones to warrant an investigation by the Committee of Trade in 1786 at a time when the whole question of the Newfoundland fisheries was under review. 14 Unfortunately, before new instructions could be completed for Governor Elliot in accordance with the Committee's suggestions, the French had taken matters into their own hands by hustling British fishermen and merchants off the treaty coast. In certain of these actions the French navy was assisted by British naval officers; nor did Governor Elliot protest. His instructions left much to his discretion when they ordered him to assure to the French the full use of the fishery; and though they contained no committal by the British government to an exclusive fishery for the French, Elliot's failure to support the British fishermen's demand for a concurrent fishery appeared to endorse the claim of the French to fish there exclusively, to remove by force all British subjects found fishing, trading, sealing, or trapping there, and to order the removal or destruction of fixed settlements of all kinds whether or not they were erected for fishing purposes. Forcible removal of the English transient fishermen had its risks for the British government. It was considered directly contrary to 10 and 11 William III, c. 25, which guaranteed a free fishery to them at Newfoundland. Since 1720 settlers had gradually deflected the transients either to the Banks or Labrador, and in 1786 the French were forcibly moving them from their coasts where they tried to fish either on their way to or from Labrador. Under the direction of Pitt in 1788 an act (28 Geo. III, c. 35) was passed dealing with the problem of French participation. It did not declare France to have an exclusive fishery, nor make the visits of British fishermen to the treaty coast unlawful, but it did permit the King-in-Council to authorize the governor, or his officers, to suspend 10 and 11 William III, c. 25 and prevent where necessary the visits of British fishermen to French preserves. However, the act emphasized that only British naval officers had the right to compel British subjects to leave the French limits. New instructions were issued to the governor, to use force if necessary when recalcitrant British fishermen flouted his orders. At the same time Elliot was

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THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

directed to prevent the French from salmon fishing beyond one-half mile up river mouths, and to enforce against the French the limitations imposed upon them by treaty. Notwithstanding its de facto support of nearly all their claims, and its obvious disadvantages to the British transient and settler, the French were far from overjoyed with the act. They could claim that by the actions of their naval forces in 1786, and largely without British support they had virtually created an exclusive fishery; the act, therefore, only confirmed the status quo. As for the stipulation that only British officers could exercise jurisdiction on the treaty shore, it crimped the ambition of the French to obtain for their officers an extra-territorial authority, for by 1788 it was obvious that France desired to exercise sovereignty over her shore. Time was too short. Within five years France was again at war with Great Britain, French fishermen were driven from Newfoundland, St. Pierre and Miquelon were seized in a raid from St. John's, and their colonists despatched to France. Often more interesting than wars are their by-products. To a considerable degree the settled colony in Newfoundland was an incident of the imperial wars between Great Britain and France. Especially is this the case in the Revolutionary and Napoleonic struggles. Legally the fishery remained circumscribed by King William's law until 1824; professedly the governors, merchants, judges, magistrates, and naval surrogates practised their vocations to maintain the sacrosanct transiency of the fishery; but practically the press gangs and the innumerable risks of war gradually transmuted Newfoundland, a "fief of the admiralty," a "fishing ship anchored off the banks," into a number of communities which the return of peace could not dislodge. French rights and French fishermen disappeared from the shores of Newfoundland and the isles of St. Pierre and Miquelon, leaving the north Atlantic fisheries in the hands of the island-based Englishmen and New Englanders. Before peace returned in 1815 the Mediterranean markets were wholly supplied by the Anglo-American merchants, by and large the provision trade to Newfoundland had become a monopoly of New England, and the centre of resistance of French ambitions had moved from the English West Country to the street which ran along the north side of St. John's harbour. An imperial act (31 Geo. III, c. 29) was passed on May 26, 1791, to establish a Court of Civil Jurisdiction in Newfoundland. This was achieved by Lord Thurlow against mercantile opposition, but with the support of Sir Archibald MacDonald, the attorney general, who felt that the small fishermen needed an impartial court to save them from the domination of the merchants still backed by 10 and 11 William III, c. 25, the embodiment of summary justice. The act was an experiment to endure for a year only. It came up for review in 1792 when certain reforms were put forward by John Reeves, the first chief justice, and incorporated in a new act (32 Geo. III, c. 46). Pitt had found it convenient during the course of the debates on the second bill to promise the merchants a parliamentary enquiry into the Newfoundland trade and fishery. At the enquiry in 1793 the merchants urged their old arguments against the courts and prophesied a decline of the fishery. In their unshakable opposition to settlers they were supported by Sir Hugh Palliser and William Knox, who tenaciously clung to the argument that a colony could endanger Newfoundland's usefulness as a nursery

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for seamen, and loosen imperial control over the fishery. It was further urged that the new court, instead of simplifying the course of justice, would in time complicate it by encouraging a permanent population which in due course would advance claims at variance with the principles of a transient fishery. No tangible conclusions came from the enquiry, but a great deal of evidence was placed before the committee in favour of a settled community. Any changes contemplated had to be postponed upon the outbreak of war with France in 1793, but the Court of Judicature remained. Though created as a bulwark of the ancient fishery, as epitomized in William Ill's law, it also supported, albeit unintentionally, the feeble structure of a colony. The chief weakness of the new system was that it only operated during the presence of the governor, which was for about two months during the summer. When the United States entered the war in 1812, the resident fishery largely managed its own affairs, for all three rivals, embroiled in war, were unable to prosecute the trade and fishery, or to dominate the destiny of the island. The population increased from between ten and twenty thousand to between sixty and seventy thousand; and the extent and value of the fishery increased enormously, so that in the season of 1813-14 it reached close to £3,000,000. Following the submission of the French, Newfoundland was drawn into the economic depression which became general in Europe, and one hundred bankruptcies occurred in St. John's alone between 1815 and 1817; a Europe impoverished could no longer pay high prices for dried cod, hence the Mediterranean markets shrank alarmingly; and the state of the colony was not improved when the peace treaties of 1815 15 brought back to the islanders their recent enemies, the French and Americans. In 1817 the plight of the colony was brought to the notice of Parliament. A select committee were given several reasons 16 to account for the chronic state of the colony: Spain and other Mediterranean countries had increased their import duties upon dried cod, and France, to encourage her fisheries for the benefit of the navy and trade, had reintroduced large bounties not only on ships and men employed in the industry, but also on dried cod exported from France to other countries. These bounties enabled French merchants to undersell their Newfoundland rivals, and to regain their Mediterranean markets. Several witnesses complained that in total disregard of requests from merchants engaged in the trade France had been restored to her west coast fisheries by the treaty of 1815, "by far the most favourable part of the whole island, for the prosecution of the fishery." As there was no going back upon the treaty with France, therefore, the only remedies suggested by the witnesses were the forcible removal of between five and ten thousand distressed people (who were mainly Irish), and the restitution of bounties to British fishermen to offset the advantage gained by the French with their own bounty-fed fishery. It is not difficult to see the influence of the West Country merchants in this report. As one would expect they tried to recover control of the fisheries, but the attempt was luckless and the governmental policy which in the eighteenth century had supported their ambitions was not revived. The British government's refusal to grant a bounty on their exertions spelled doom to their direct participation, though they made an appeal to the hoary sentiment that the fishery was a nursery of seamen, an appeal considered by one member of Parliament as "an

22

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

argument that had borne on its back the impolitic regulations of centuries, and that was always at hand to sanction every unwise measure proposed for extending our commerce." Whether they would have been more successful if the British government had not been engrossed in continued crisis is a moot point, and perhaps impossible to resolve. Gradually West Country competition in the fishery and its collective opposition to settlement became negligible factors. Fortunately domestic and world conditions improved, and though the colony for the next few decades could not be called a roaring success, important steps were taken to consolidate the advantages secured by the residents since 1791, among them the repeal of all legal obstructions against settlement, especially 10 and 11 William III, c. 25. Any hope that the French would be satisfied with a concurrent fishery was soon dispelled. After the war the British Newfoundland squadron was considerably reduced in the name of economy, an action which could not but benefit the French whose fishing industry was generously aided by a deliberate and determined policy formulated by their government. Frenchmen, wherever they were, on land or sea, were considered to be subject to French laws made to regulate "juge de paix" among themselves. In the case of Newfoundland these laws purported "to restrict the liberty of British subjects in British waters," and the naval forces of France were used to enforce them. The treaty of 1713 had laid down the restrictions which were to circumscribe the building activities of the French on the shore, but these restrictions had been early and openly circumvented, not merely upon the whim of the fishermen, but according to mandate from France. It is possible the French considered they had good reason for disregarding the letter and spirit of the treaties, for between 1793 and 1815, when the French were completely excluded from the fishery, a number of British settlers ensconced themselves within the former French limits, so that when the French resumed their fishery in 1815 a new system had arisen, entirely at variance with the declaration of 1783. The real determination of the French to make a success of their north Atlantic fishery is seen in their system of bounties and tariffs, which after 1815 was revived and extended. It was against these bounties and tariffs that complaints were raised as long as a French problem existed in Newfoundland. In 1814 a tariff of 40 francs per 100 kilos imposed upon foreign fish imported into France gave the French fishery a monopoly of the home market, and a bounty of 50 francs per man was granted in 1816 for three years to vessels engaged in the fishery at St. Pierre and the treaty shore. On the fish trade itself there were the following bounties: 24 francs per quintal upon dried cod exported to French colonies in French vessels; 12 francs per quintal for dried cod similarly shipped to Italy, Spain, Portugal, and the Levant from French ports, and 10 francs if sent to these countries direct from the fishing grounds. In 1818 the bounty on fish shipped to the colonies was increased to 40 francs per quintal. The Bank fishery benefited in 1816 by a bounty of 15 francs per man to vessels engaged in it, increased in 1822 to 50 francs if the fish caught were dried in Newfoundland, and in 1829 to 30 francs if the catch were dried in France. Whereas in 1817 the bounty payments amounted to 365,000 francs, in 1829 they reached 4,400,000. One estimate of the French north Atlantic fishery in 1830 shows there were three to four hundred vessels, amounting to about 50,000 tons, employing some 12,000 men. The

ANGLO-FRENCH FISHERY IN NEWFOUNDLAND BEFORE

1832

23

average catch for five years previously was 245,000 quintals of which 27,000 went to the French West Indies, 17,000 to Mediterranean ports, and 160,000 to the French home market, from which 29,000 were re-exported. This burst of energy and an increased fishery alarmed the Newfoundlanders, particularly when following the peace of 1815 the British government substituted vascillation for their traditional opposition to settlement. There was no doubt about the French interpretation of the treaty. Without British warships on the coast there was no deterrent to their assertion of sovereign rights, which took the form of ordering British settlers from places they had occupied before French rights had been restored. Nor did the governor possess any instructions to prevent such action. In 1822 Governor Hamilton acted upon his own initiative and issued a proclamation that the French were "to have full and complete enjoyment of the fishery within the limits and boundaries in the manner they are entitled to enjoy the same under the said Treaty of Utrecht." Legal or not, this proclamation was to be a source of embarrassment to British governments throughout the century. The French government, and French historians, have repeatedly referred to it as definite proof that the British government acknowledged the establishment of an exclusive fishery for the French. Perhaps it was not so far from the official British sentiment in the matter, because no angry letter reached Hamilton from his superiors demanding an immediate abrogation of the proclamation. This supposition appears to have some support in an act (4 and 5 Geo. IV, c. 51) passed in 1824, which recognized a settled colony in Newfoundland, prohibited aliens from fishing in her waters (except the French and Americans), but by section 12 empowered the British government to issue instructions to the governor to put into effect the terms of 28 George III, c. 35, and legalized Hamilton's proclamation of 1822. On the Newfoundland claim for a concurrent fishery Huskisson declared in 1827, "it had been judged expedient, for the purposes of avoiding the risk of unpleasant collision to abstain from acting upon a claim which may yet be considered as open to be enforced." For the time being Newfoundland was to be a colony in irons; it could move its head and arms, but it could not walk about, least of all in the direction of the French limits. Thoroughly exasperated with the French, the St. John's Chamber of Commerce formulated their own interpretation of the treaties, and decided to put the matter to test. They told Governor Cochrane of their intention to send a fishing ship to the French limits and asked for protection, which he refused. A direct appeal was made to Sir George Murray, the colonial secretary, in which the hardships imposed by French intransigence were carefully emphasized, and the intention to despatch a ship was made known. Murray made no reply. Undeterred, in 1829 the Hannah was sent on her way to Quirpon with orders to assert the British right to a concurrent fishery. French reaction to this crusade was immediate and unmistakable. The crew of the Hannah were treated courteously by the French commander of the naval schooner Philomele-but under no circumstances would he permit them to fish on the treaty coast. M. Seyers, a French armateur with an establishment at Croque, informed them (no doubt for the benefit of the Chamber of Commerce) that on the treaty shore the French had an exclusive right, the Americans had no rights, British subjects were encouraged on the shore only when French property required a winter caretaker, and if necessary force would be

24

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

applied to evict either British or American fishermen caught trespassing on French preserves. Governor Cochrane concluded that with so many Frenchmen on the shore it was unwise to allow a concurrent fishery, for no Britisher could fish without interfering, and even if a concurrent fishery were legal, interference was not. Though he protested to the French against their claim to use force in an area undex British sovereignty, his computation of the number of French ships and fishermen on the treaty coast led him to endorse the wisdom of two separate fisheries as the only way to avoid repeated provocations. Meanwhile in the House of Commons, Lord Howick, the under-secretary for the colonies, announced the govemment's dilatory dictum: "It should be recollected that the right to fish [on the treaty shore] was disputed by the French, and the treaty of 1783, and the declaration which was made subsequently, in consequence of that treaty, rendered it extremely doubtful that the English possessed any such right. At all events, the question was still a matter of doubt; and while it remained undecided, the Government could not act as ... desired." 17 Such counsel afforded no backing to the colony, and without physical and moral support it did not possess a ghost of a chance to assert a concurrent fishery in the face of French fishermen, who filled all the worth-while harbours and fished all the possible fishing grounds. For the nonce the initiative was with the French. Slightly more than a month before Lord Howick's statement in the House of Commons, Talleyrand had written to Loi d Palmerston claiming that "la France a un droit de pecherie dans un espace determine des cotes de l'isle de Terre-Neuve, que ce droit est exclusif et que par consequent ii ne peut eprouver aucune concurrence de la part des armateurs Anglais ...." 18 Thus, by 1832 when Newfoundland was granted representative government, the right which Vergennes had coveted, and against which Pitt had thundered, was appropriated by French armateurs. Like it or not, the treaty coast had become the "French shore."

CHAPTER TWO

THE FRENCH AND A NASCENT COLONY BY THE BEGINNING of the nineteenth century the settled parts of eastern Newfoundland had experienced a struggle of two centuries between the resident and the European transient, a contest which took place within the larger conflict among the powers of Europe for control of this cod-bound island. In 1815 all but the formalities were over, and under the British Crown the settlers' triumph was conceded. The transient did not completely disappear, but he was no longer the favoured ward of official policy; law, order, and good government were introduced in the place of naval feudalism. Those who owned or rented small boats fit only for the shore fishery could not each autumn return in them to Europe; therefore they remained and gradually inherited the island and the adjoining sea. Between Cape St. John passing by the south and Cape Ray, the coast and the settlers were subject to the undisputed sovereignty of Britain, but soon Englishmen, Irishmen, Scots, and French called themselves Newfoundlanders. The victory of the colonists was geographically limited, and the mark of circumscription was set upon all their progress throughout the nineteenth century. From Cape St. John, passing by the north to Cape Ray, according to article 13 of the Treaty of Utrecht, the coast was also British, but in practice this sovereignty was hedged about by concessions imposed by agreements with France and the United States of America. Squatters, unwanted by Britain and France, came to live upon that long shore, where for decades they had no government, law, or organized social life. In fact, as far as different times and divergent circumstances allow, the old contests began all over again. Population on the treaty shore, during the period of this chapter, increased steadily until it was considerable enough to alter fundamentally the course of history envisaged in the agreements between Britain and France. For the full maintenance of French rights, and for a minimum of diplomatic friction between the two powers, an empty shore was a necessity, but the virtual absence of British authority, and the temporary absence of the French annually, allowed a persistent encroachment upon a coast which possessed several natural advantages. There were no organized scrambles for territory, no steady columns treking from the east, nor any railroads to rush the homesteaders to the empty places. The Newfoundlanders did not think in terms of waggons, horses, or steam trains, but in terms of boats and schooners. They did not move from valley to valley until the westward shore was reached but went bv sea in their craft and landed in convenient places, where they stayed if not molested. To the few trappers, Indians and odd men out, they bequeathed the interior, for they preferred to live mainly with their faces to the sea. Most of the western liveyers were born in Newfoundland, either on the treaty shore or in the older settlements of east and south. The remainder, like the older colonists, were a mixed lot from England, Ireland, Scotland, the Channel Islands,

26

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

Nova Scotia, Quebec, St. Pierre, France, and even the American republic. Many of French stock have their descendants in the west today: the Blanchards, Le Blancs, Landrys, Benoits, and Cormiers. By the 1880's it was difficult to find on the entire shore an empty harbour, cove, bight, or arm in which there was not at least one family, but the greater concentrations grew on the west coast, along the Codroy Rivers, about St. George's Bay, among the Bay of Islands, up the reaches of the Humber River, and at Bonne Bay. At these places a new society began, developed, and reached its climax not as an Anglo-French condominium, nor as a colony independent and self-contained, but as an integrated part of the established colony of Newfoundland, although for a very long time the residents on the northeast coast, which was most frequented by the French, remained little more than winter keepers of French property. A glance at a late nineteenth-century map of the treaty coast will show how thoroughly the shore was settled, and reveal its Anglo-French legend. 1 At the turn of the English constitutional tide in 1832 the level of Newfoundland's government was raised and an assembly was granted; though perhaps the decline of her importance in Imperial considerations contributed to this more than the steady pressure of local interests. For a generation the advocates of constitutional change had argued and pamphleteered in favour of a local legislature, and against the diarchy of naval and mercantile administration. It was claimed that representation ought to be coexistent with taxation, a resident community could no longer be accommodated by laws devised for a transient fishery, and only a local parliament could adequately frame laws to meet the island's needs. The existing system of government denied to the colonists a voice in their welfare and the spending of their taxes; roads and bridges were needed to connect the outports with each other and St. John's, and lighthouses were needed to make coastal navigation safer; an increasing population required more than a fluctuating cod fishery to support it, and therefore agriculture and other resources in the island ought to be exploited. 2 The proclamation for summoning the assembly specified the several electoral districts but no part of the treaty coast was mentioned, though Cochrane's Commission and Instructions included the whole island and its dependencies. Two years later a local bill was passed to allow increased representation wherein one member was to be provided for the St. George's Bay area, but royal assent was withheld ostensibly because the British government wished to await the figures of the next census. The real reason, however, was Imperial objections to any representation of the treaty shore; this decision was concordant with the indeterminate British policy towards the nature of French rights between Cape Ray and Cape St. John, but so early in the legislature's existence it was not a pressing inconvenience. However, the new assembly did not suffer from many doubts about the Anglo-French treaties. Though legally obliged to recognize them, physically compelled to submit to French interpretations and suffer British vacillation, from the beginning it held to a policy which reduced French rights to a minimum. It was not long before that minimum was expressed in the words of Reeves, the first chief justice of Newfoundland, a man much honoured for his early espousal of the colonial cause, that the French had "nothing more than a license to come and go during the fishing season." A great deal of time passed before the new legislature spoke in an authoritative tone to the commissions ap-

THE FRENCH AND A NASCENT COLONY

27

pointed at intervals to seek a compromise, but the existence of a legislature was in itself a great advantage to the colonists. It was a centre around which opposition was rallied, and a meeting place in which views were expressed often unflattering to France and England. This sort of organized opposition, absent when the West Countrymen were the chief protagonists, was used with gradually increasing power and skill, though frequently without finesse. Guichard, in summing up his survey of the Newfoundland fisheries since the fifteenth century, declared that: "Cependent l'ile de Terre-Neuve prenait de jour en jour un plus grand essor. Sa population, accrue clans de notables proportions, se montra bientot exigeante: elle reclama du gouvernement britannique l'institution d'un Parlement, ce qui lui fut accorde en 1832. A partir de cette epoque commence une nouvelle phase de la question de Terre-Neuve." 3 Consequent upon questioning in the House of Commons in June 1832, Poulett Thomson, treasurer of the navy and vice-president of the Board of Trade, promised to take the opinion of the Law Officers on the subject of French rights in Newfoundland, but first the Board of Trade were consulted. Their conclusions, and consequent counter-opinions upon them, reveal the wavering condition of the British offical mind. Referring to the crucial negotiations for the agreements with France in 1783, the Board averred: "The fact seems scarcely disputable that, at that period of almost unexampled depression, Great Britain was induced to concede a very popular and favourite privilege, but that, shrinking from a public avowal of their own act, the British negotiators took the course of substituting an explanatory Declaration for an express Article in the Treaty." The Board's interpretation of the act of 1788 left no doubt about their views upon the nature of French rights. It "authorised his majesty to give such orders as he should deem necessary to fulfill the purposes of the Treaty and Declaration, and, if necessary to that end, to remove any works, for the purposes of the fishery, erected on that part of the coast . . . in question, and all ships and vessels belonging to the King's subjects to depart from thence." Further the "enactment was considered as a parliamentary command upon the Treaty and Declaration, and as affording evidence that the real meaning was to give to the French an exclusive right of fishery in which the British could not participate." Finally, the Board suspected that the government's reason for supporting the American contention of concurrent right to fish on ,the west coast was an attempt to secure a release from the promise which gave France the exclusive claim, because the American concurrent right, once recognized by France, would inferentially confer it on the British by reason of the wording of the Anglo-American treaties. In October 1836, the French ambassador in London, Count Sebastiani, again raised the claims of his government. He reminded Lord Palmerston of Talleyrand's letter of May 19, 1831, which contained earnest entreaty "contre la violation de notre droit exclusif de peche sur une certain portion de la cote de TerreNeuve," stated categorically that concurrence "est formellement interdite par la texte meme de la declaration annexee au traite du 3 Septembre 1783," and called for an immediate settlement. Once more the Foreign Office placed the problem before the Law Officers because "all the circumstances necessary for forming a conclusive opinion upon the question were not brought sufficiently under [their] notice ... upon the occasion on which the previous report was made." "All the circumstances necessary" referred to a thirty-two page memorandum of close

28

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

reasoning prepared by Hertslet of the Foreign Office, and based on official correspondence concerning the several peace treaties with France dealing with the Newfoundland fisheries. Hertslet argued that the Board of Trade and the French ambassador had based their arguments on the interpretation of the Treaty of Versailles and the declaration of 1783, and not upon the intention of the British government at the time (which still remained the opinion of the Foreign Office), which was to give the French an uninterrupted fishery without specifically denying the concurrent right of the British, obviously implicit in Britain's sovereignty. For France to assert that Britain had granted her an exclusive right in 1783 was to accuse her of bad faith with the United States, for on the same day that France supposedly received exclusive rights, the Americans were granted concurrence on a similar shore alongside British subjects. The French had the shore practically to themselves, and so far their treaty rights had not been called in question, so why not remain quiet? "The reason is obvious. They think that the moment is favourable for obtaining a recognition of their pretention, and they fear that there may be a danger in delay." The British government, he went on, had themselves to blame for the "favourable moment," because every occurrence in England which had a bearing on the question had encouraged French confidence; the continuation of restrictions against British subjects on the treaty coast after 1815 even though the declaration of 1783 and the act of 1788 were annulled by war; the repeated refusals given to applications to allow British subjects to fish on the shore; the act of 1824 which virtually resurrected the act of 1788; the debates in the Commons from which it was inferred the British government declined to accede to the above applications because compliance might be incompatible with French engagements; and finally the tacit submission to French assertion of legal authority within a territory under British jurisdiction. Hertslet concluded that France had never been given an exclusive right, though a concurrent fishery might be impracticable. The influence of Hertslet's reasoning was revealed in the second report of the Law Officers, sent to Palmerston on April 17, 1837. This admitted that the previous report had gone beyond the point warranted by circumstances, and repeated the opinion that Great Britain, on the basis of past treaties and acts of Parliament, was bound to permit the French to fish on the treaty coast without interruption; but the following awkward qualification was added: "If there were really good room within the limits of the District in question, for the Fishermen of both Nations to fish without interfering with each other, then we do not think that this country would be bound to prevent Her subjects from fishing there. It appears, however . . . that this is hardly practicable, and we are of the opinion that according to the true construction of the Treaty and Declaration, British subjects are precluded from fishing, if they thereby cause any interruption to the French fishery." By implication this report seemed to support the policy of separation, which if put into effect would endorse French claims to an exclusive fishery in practice if not in principle. Yet, with one hand on the Law Officers' report and the other on Hertslet's memorandum, Lord Palmerston delivered to France the least indefinite pronunciamento upon the nature of French and British rights on the treaty coast that had thus far come from the pen of a responsible minister:

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29

It is true that the privilege secured to the fishermen of France by the Treaty and Declaration of 1783, a privilege which consists in the periodical use of a part of the shore of Newfoundland, for the purpose of drying their fish, has in practice been treated by the British Government as an exclusive right during the fishing season, and within the limits prescribed; because, from the nature of the case, it would scarcely be possible for British fishermen to dry their fish upon the same parts of the shore with the French fishermen without interfering with the temporary establishments of the French for the same purpose, and without interrupting their operations. But the British Government has never understood the Declaration to have for its object to deprive the British subjects of the right to participate with the French in taking fish at sea, off that shore, provided they did so without interrupting the French cod fishery; and, although in accordance with the true spirit of the Treaty and Declaration of 1783, prohibitory proclamations have been from time to time issued, on occasions when it has been found that British subjects, while fishing within the limits in question have caused interruption to the French fishery, yet in none of the public documents of the British Government, neither in the Act of Parliament of 1788, passed for the express purpose of carrying the Treaty of 1783 into effect; nor in any of the instructions issued by the Admiralty and the Colonial Office; nor in any proclamation which has come under my view, issued by the Government of Newfoundland, or by the British Admiralty upon the station, does it appear that the right of French subjects to an exclusive fishery, either of cod fish or of fish generally, is specifically recognised. In addition to the facts above stated, I will observe to your excellency, in conclusion, that if the right conceded to the French by the Declaration of 1783 had been intended to be exclusive within the prescribed district, the terms used for defining such right would suredly have been more ample and specific than they are to be found in that document; for in no other similar instrument which has ever come under the knowledge of the British Government is so important a concession as an exclusive privilege of this description accorded in terms so loose and indefinite. 4

This doctrine made necessary an active policy of negotiation for an attempted solution of the dilemma, because the French government was in no way convinced. At the outset of the sixty years of deliberation a formidable number of controversies presented themselves, the most important of which are for clarity and convenience listed below: 1. The exclusive rights on sea and shore claimed by the French throughout their limits. 2. The extent of the obligation imposed on the British under the Declaration of 1783 to remove "fixed settlements." 3. The right of the French to repel encroachments summarily in the absence from the spot of a competent British authority. 4. The commercial intercourse of the British within the French fishery limits. 5. The right of the French to interfere with the salmon or other fisheries in the mouths of rivers. 6. The custody of French fishery works during the winter. 7. Distance inland and out to sea to which the French rights should extend. 8. Whether French fishermen were subject to the municipal laws of the colony. 9. The duration of the French fishing season. 10. Whether the coasts assigned to the French included the adjacent islands and more particularly the islands of South Belle Isle and Groais. 11. The traffic in bait. It should be noted that all except number 11 appertained to French treaty rights, but as the century advanced the bait question became inextricably entangled with that of the treaty shore. An adequate supply of bait was a first essential to a good fishery, especially on the Banks where the French chiefly fished; and for the maintenance of a profitable fish trade it had to be dependable, fresh, moderately priced, and procurable early in the season. Fortune Bay (convenient to St. Pierre) had some of the finest grounds in the north Atlantic for

30

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

herring, capelin, and squid, the usual bait fishes. French treaty rights did not extend along the south coast, nor was bait from St. George's Bay or Bay of Islands sufficient or near enough to supply their growing fishery. It was impracticable for all requirements to be brought from France, hence large additional quantities had to be obtained either from French waters about the islands of St. Pierre and Miquelon, or from Newfoundland. To the French, engaged in "mass catching" under the encouragement of a bounty on exported dried cod and a protected home market, it was cheaper and more convenient to purchase bait from others who possessed the special tackle necessary, rather than waste time or expense catching it themselves. Naturally the islands of St. Pierre and Miquelon became again after the Napoleonic War the centre of the French fisheries. The resident population increased steadily and each spring the town of St. Pierre became active when banking ships from Granville, St. Servan, St. Malo, Morlaix, Bordeaux, and Bayonne made three visits from the Banks to the port, as herring, capelin, and squid respectively appeared in Fortune and other south coast bays. The developments at St. Pierre helped in the transformation of Newfoundland's south coast from an empty shore west of Placentia Bay to one where every worth-while harbour was inhabited. In 1818 Burin was little known, but in 1832 it became the head of an electoral district. British subjects found at St. Pierre in 1815 were removed to places in Fortune Bay, where they continued their fishery in association with their late home. Between Cape Ray and Cape La Hune there were only three or four families in 1818; upon the strength of this fact the Americans in that year were granted landing rights in unoccupied harbours between Cape Ray and the Ramea Islands, but American rights were of dubious value in 1839 when every habitable cove contained several residents, and Burgeo had seven hundred people and a thriving merchant's establishment. Generally, the economics of these two areas were complementary; the south shore fishermen caught bait (and cod) for sale at St. Pierre, or to fishermen from there, to supply the Bank fishermen. Needless to say Frenchmen were not above poaching bait when the opportunity offered, and with purchasing and poaching went smuggling on a large scale to the detriment of colonial revenues, St. John's merchants, and the colonists' respect for their laws. Captain Thomas Bennett, of H.M.S. Rainbow, complained about this alliance to Governor Prescott in 1837. He said that smuggling in late years from St. Pierre had quadrupled, and from those islands as well as Boston, Halifax, and Quebec came brandy, rum, sugar, tobacco, tea, molasses, clothing, and furniture, all of which were exchanged for fish, to the prejudice of English merchants. The obvious remedy was the appointment of efficient customs' officers, and as an example, Bennett stated, he had appointed one at St. George's Bay in the hope that the governor would approve. The captain castigated the colonial assembly for allowing France to purchase bait, for it placed in foreign hands the means of competing with Newfoundland's overseas fish trade. "If this is the Act of the Colonial Assembly, they must have some hidden motive which I certainly cannot fathom." The following year Captain Polkinghorne reported on the good relations existing on the south coast between the French and Newfoundlanders regarding bait sales; a state of affairs likely to make any attempt to interfere with the traffic exceedingly unpopular. Polkinghorne appealed to Governor Briry

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31

of St. Pierre for assistance in preventing French fishermen from trespass and thievery on the south coast; it was suggested that French fishing ships have large numbers painted on their sails to aid identification, but the French were uncooperative. The British government's attitude to bait purchase was neglectful and unsympathetic, though admittedly they were handicapped considerably by the treaties with France and the United States. At the time when a transient fishery controlled Newfoundland, bait sales had been forbidden by law and when possible prevented. As early as 1670 Charles II had issued an order-in-council against the practice, and later 10 and 11 William III, c. 25, 26 George III, c. 26, and 5 George IV, c. 51, had continued the prohibition. By 1834 only 26 George III, c. 26, was unrepealed or unexpired, and even it was not actively enforced. From this circumstance, and the continued lack of understanding of colonial interest in this issue, it can be concluded that good relations with France were deemed more important than the welfare of a small colony; or that the home government, knowing the complications, preferred to leave the matter to the colony-which, in effect, held it in abeyance. Captain Bennett's petulant allusion to the unfathomable incompetency of the local assembly was hardly fair. Newfoundland was unable to enforce Imperial legislation without home support. The colonial government was not unaware of the ill effects of a steady strain upon vital bait supplies, and of the assistance given to France by bait sales which enabled that country to undersell Newfoundland in the markets of Europe and Brazil. In 1836 and 1845 local acts were passed placing an export duty on bait, and in 1844 an appeal was made to the British government for assistance in the enforcement of Imperial and local deterrents; but the local act was not enforced because the British government gave no aid and local attempts to control it by government cruisers were a failure. Hence the French, encouraged by bounties, continued to purchase and poach, and the Newfoundland fishermen who took bait to St. Pierre continued to smuggle largely without hindrance. Here matters stood when the era of negotiations between French and British governments dawned. At the French government's request the first formal negotiations took place in 1844. They appointed as their representative Captain Fabvre, the commandant of the French naval station in Newfoundland, and as these were but preliminary discussions, Great Britain chose William Thomas, president of the St. John's chamber of commerce. Upon request Thomas presented his proposals for a solution in a report to Governor Harvey,5 in which he stated that because attempts to establish a concurrent fishery had failed, the British and French fisheries of the treaty coast should be separated. As compensation for their surrender of a concurrent right on part of the coast the French should be allowed to fish at Belle Isle North. Bait was to be sold only at St. Pierre and transported by Newfoundland fishermen. No other concessions were to be offered France unless she restricted her trade in dried cod exported to areas where it competed with the local product, or unless the bounty system were either reduced or abolished where it gave trading advantages to French merchants and fishermen. The suggestion to establish two separate fisheries was sensible at that time, and conditions on the treaty shore indicated a reasonable division. British settlers were mainly concentrated in areas south of Flower's Cove, and particularly below

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THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

Ingornachoix Bay; and the greater part of the French fishery was on the northeast coast between Cape Norman and Cape St. John. Fabvre accepted this principle of separate fisheries with modifications; first, that on the section assigned to the British, between Cape Ray and Bonne Bay, France was to retain rights to fish and dry at Codroy (the traditional place for St. Pierre fishermen), Red Island, Port au Port, and Lark Harbour; secondly, that in addition to a right to fish at Belle Isle North, French fishermen should be allowed to fish on part of Labrador. But the Thomas proposal of two exclusive fisheries represented the extreme limit of colonial compromise, and was probably made only to tempt France to make concessions on the bait question, of paramount importance to the merchants of St. John's. Later when a similar principle of separation was put forward by the British government the colonial authorities retreated to a position less beneficial to France. No agreement was reached at these preliminary discussions, nor was anything constructive achieved by further discussions in 1846 and 1851. Following the Thomas-Fabvre discussions, bait became a problem of greater urgency. French expansion in the North American fisheries continued; Captain Loch in 1848 reported 360 French banking vessels, from 150 to 300 tons each, with about 17,000 fishermen and an annual catch of 1,200,000 quintals. He was convinced that this expansion was facilitated by supplies of bait from Newfoundland, and in support of his contention cited the opinions of Governor Delucluse of St. Pierre. When in 1851 French bounties were increased, alarm spread anew among the colonial exporters. To a comparatively poor colony tied by treaties with two protectionist countries, France and the United States, these bounties were more than formidable, especially when to them were added French and American domestic import duties which virtually prohibited Newfoundland fish products. Norway too had joined the competition for dried cod markets, particularly in the Mediterranean, with an excellent product; her exports rose steadily from an annual average of 537,450 quintals between 1846 and 1850 to 605,737 by 1855. Bounties induced mass production by bultows or thrott lines, cod seines, and traps, which brought keen competition for markets not suitable for expansion, which brought depressed prices-which in time produced defensive legislation in the colony. Depletion of old grounds under the dual influence of mass production and bounties led to the extension of similar practices to other grounds. Bait was in greater demand, and as Newfoundlanders sought to supply foreign needs often at the expense of the colonial fishery, smuggling increased: it was feared by some that Newfoundlanders would be reduced to little more than bait catchers for foreign advantage. Encroachment on Labrador by French fishermen increased; they went to buy bait from British fishermen, but whenever opportunity arose they fished for bait and cod. French activity at Petit Nord was stimulated; and in all things-supplying, fishing, salting, drying, and exporting-the French showed a thoroughness that convinced the Newfoundlanders at least that French naval policy was the driving force, not individual or collective private enterprise alone. Against all these alarming developments the colonial government protested in 1852, and called upon the British government to give protection. They argued that by preventing the bait traffic on the southern and western shores-though

THE FRENCH AND A NASCENT COLONY

33

the fishermen would suffer temporary loss of bait revenue-French trespass on their cod grounds would eventually be stopped, enabling fishermen to obtain a better voyage. And effective protection would of course benefit local merchants and colonial revenue as smuggling was discouraged. It was suggested in the colony that preventive measures should be locally financed on the southern and western shores from the duties which the law allowed on bait; but that on Labrador, where Americans fished by right, Frenchmen trespassed, and West Country and Channel Islanders visited, and where no revenues were collected, the costs should be borne by the home government. However, apart from some naval supervision afforded annually during the fishing season, Imperial assistance was refused. The colonial authorities were advised to outfit a schooner for the purpose and place it under the direction of the admiral on the station, a policy which had already been approved for Nova Scotia. The need for money to pay for this protection helped to spur the movement towards responsible government in Newfoundland. In one respect the bait problem (a vital factor in overseas trade) was simplified by Newfoundland's inclusion in the Reciprocity Treaty of 1854 with the United States. The colony's fish and oil were allowed into the United States duty free in return for increased American fishing liberties which included the right to take bait. This agreement rendered useless a bill devised by Governor Ker Baillie Hamilton 6 to restrain bait sales to foreigners. When Americans could legally catch bait it was futile to prevent Newfoundlanders from selling to the French, for that would leave to the Americans a lucrative trade which in 1854 was valued at £56,000, and which formed a substantial part of the south coast's livelihood. In the new representation list of 1855, following the grant of responsible government to the colony, districts appeared which on Imperial suggestion had been carved from larger ones; among these were areas on the south and northeast coasts which in 1832 were sparsely inhabited. Between 1832 and 1852 the south coast had had four members; Burin one, Fortune Bay one, and Placentia and St. Mary's two; in 1855 three more were added so that Burin had two, F9rtune Bay one, Placentia and St. Mary's three, and, along the western shore, Burgeo and La Poile one, bringing representation to the southern terminus of the French shore. On the northeast coast between Bonavista Bay and Cape St. John the only member came from Fogo; in 1855 Twillingate included with Fogo received two, thus extending representation in this region closer to Cape St. John, the northern terminus of the French shore. Though for the present the French preserves were to remain beyond the effective jurisdiction of the local legislature ( despite the presence of 3,334 settlers according to the census for 1857) within two years the logical consequence of responsible government was felt in the French question. The independent action enjoyed by the imperial government was to be seriously circumscribed. During previous negotiations which had commenced in 1851, Sir Anthony Perrier, the British representative, against the advice of his advisers (Archibald, attorney general of Newfoundland, and Strachey of the Colonial Office) made the following proposals: the treaty shore was to be divided into exclusive spheres, the French to have from Cape St. John by the north to Cape Verte, and the

34

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

British the remainder "where [they] had been in the habit of carrying on the herring and other fisheries incidental to the requirements of a fixed population." With some modifications the French accepted this general plan, but also insisted upon unrestricted bait purchase on the south coast. Perrier gave in on one or two points, including the vital bait privileges. The colony disliked the Perrier proposals. Its views were upheld by Governor Hamilton, who warned that the division of the treaty shore into two exclusive spheres was of little value to Newfoundland, and if the French were allowed to fish at Belle Isle North they would seriously imperil the Anglo-American fisheries there. With reference to bait concessions, he declared that "in any new convention that may be made, it should be a sine qua non if the sale of bait is made a stipulation, that the right of purchase must be subject to such regulations as may be made by the local legislature for the protection of the breeding and preservation of the bait." Hope for the colony on the problem of the treaty shore lay in the steady spread of population and the continuation of equivocal treaties. If a new agreement were made in more precise terms, although it referred only to part of the shore, by so much the colony would be limited in its ability to expand. The presence of good land, rumours of mineral deposits, the hope for west coast trade, and colonial pride were against any concessions on the treaty coast. Despite Hamilton's despatch, the executive council, while deprecating any extension of French rights, were prepared if necessary to allow any exclusive right, if the same were accorded British subjects between Sandy Bay and Cape Ray. The preparation of a draft treaty by Colonial Secretary Labouchere based on the Perrier proposals was probably an attempt to reach a settlement on the vexed question while Britain and France enjoyed the afterglow of their Crimean alliance. Labouchere fully concurred with the Foreign Office in the expediency of revising the treaties and agreed that the Perrier proposals should be adopted as a basis for further negotiations with France. He believed they corresponded with the views of the Newfoundland government, deprived neither nation of any real advantage, and would be a reciprocal abandonment of barren rights if the terms of the treaty were put in precise language. A feeling of misgiving prompted the Newfoundland legislature to appeal to the Queen in an address on February 28, 1856, in which they made the customary complaints. Unfortunately for the legislature, they had not convinced Hamilton's successor, Governor Darling,7 of the justice of their case. In his opinion the local bait act was a dead letter, for now that the United States had the right to fish for bait in coastal waters, it would be impossible to compel the French to submit to the act. He placed himself completely at odds with the colony when, on the question of the nature of French rights, he declared, "there is, unquestionably no room for the fishermen of both nations to fish and dry within the French limits without interfering with each other, and the French have therefore always had, and have at present, the right practically to enjoy, to the exclusion of British subjects, as completely as if that right was confirmed to them in express terms." By implication, his endorsement of the exclusive fishery condemned British fishing settlements on the coast in question. Prowse has pointed out that Darling did not know, as his predecessor Hamilton knew, that fixed settlements referred to in the declaration of 1783 meant only those of the transient fishermen,

THE FRENCH AND A NASCENT COLONY

35

because at that time there were no sedentary fishermen on the treaty shore (a statement which was not strictly correct). Therefore, Prowse alleges, Darling committed an unforgivable blunder in his condemnation, and placed all the residents on the French shore in an untenable position. In any event, the protest of the legislature did not prevent the signing of the Convention of January 14, 1857. It is easily seen why the Newfoundland government considered this compromise a gain for the French and a significant loss to the colony. Not the least obnoxious articles referred specifically to an exclusive right to fish and use the strand on specified parts of the coast, and the extension of fishing rights to Labrador. Other articles were restrictive to the colony's potential expansion and sovereignty; by the recent grant of responsible government, the latter in 1857 was as yet more implied than exercised. The strand reserved for the exclusive use of French fishermen was to extend inland one-third of a mile from high-water mark between Rock Point and Bonne Bay as well as at four reserved harbours, but from Bonne Bay to Cape St. John the penetration was half a mile. This was tantamount to the surrender of Petit Nord and beyond to French control. Article x1 made alienation almost complete: No British buildings or enclosures shall be erected, or maintained, on the strand reserved for French exclusive use, except for the purposes of military defence or of the public administration (in which case due notice of the intended erection thereof shall be first given to the French Government); but such existing buildings or enclosures as have stood and been in occupation upon this strand, without objection on the part of the French Government, for a period of five seasons preceding the date of this present Convention, shall not be liable to be removed without equitable compensation to the owners from the French Government, to be agreed on between the Naval Commanders of Great Britain and France on the station, or their respective delegates.

This concession, contrary to Perrier's suggestion, but consistent with Darling's and Labouchere's interpretation of the treaties was a malediction to an expanding colony. Previous agreements had granted no French jurisdiction over British subjects or territory (except within the limits of the treaties); during the absence of British naval authority French officers had frequently used force to repel encroachment, and a tribunal had been established at St. Pierre to take cognizance of disputes on the treaty shore between French subjects. Such self-assertion of French rights was considered by Attorney General Archibald to be inconsistent with British sovereignty and with 5 George IV, c. 67, which had placed the treaty coast in a judicial district of the island. By the new convention a limited authority permitted France to enforce the exclusive right of fishery and use of the strand in reserved areas if no British vessel was present or known to be within five miles of the scene of the incident. In such measure was the potential jurisdiction of the colony diminished. Both Perrier and the Newfoundland government had felt that France should be allowed bait privileges under the same conditions as those which governed Newfoundland and American fishermen, provided France undertook to abolish her bounty system, or make it less repugnant to the colony. This compromise, they believed, would better serve the interests of the British empire in general, and Newfoundland in particular, than an attempt to enforce rigid rules against France only. The British government approved of neither sentiment, and contended that the welfare of fishermen and exporters was not the only reason for

36

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

the French government's bounty system. It was still widely held in official and private circles in France, whether for true or dissembled objectives, that to encourage the north Atlantic fisheries was to create a reserve of seamen from which the active navy could recruit in emergency; further, it encouraged the maintenance of fishing rooms on the treaty coast, which otherwise might be abandoned to the detriment of French rights. It was not felt possible, therefore, to force into the negotiations so domestic a question as bounties, more particularly when France held such extensive and undefined rights in the colony; and "it would not have been politic ... to make any absolute and irrevocable concession, in order to obtain the abolition of a protective system which might be indirectly reestablished without its being possible to prove a breach of engagement." Accordingly, the British authorities decided to impose upon the colony the sacrifice necessary to ensure Anglo-French cordiality; and it appears from a despatch of Darling, July 28, 1856, that the executive council had given their unanimous concurrence to his proposal to legalize the French bait traffic which in any case could not be stopped. 8 By the Convention, then, French citizens were to have the right to purchase bait on the south coast on equal terms with British subjects without duty or restriction; and under certain circumstances they could catch bait themselves between Cape St. Mary and Cape La Hune. When the Convention was placed before the Newfoundland legislature on February 6, 1857, the colony reacted violently. The British flag was flown at half mast by some, and others flew the "Stars and Stripes.." The legislature adopted a resolution emphatically protesting against any alienation of their rights on the treaty coast and Labrador. On the bait question they declared: It may be said that our concession to the Americans [in the Reciprocity Treaty] justified the conclusion that the like privileges may with security be ceded to the French. We respectfully submit that the commercial policy of the two nations is entirely different. The Americans are pursuing a similar commercial policy to that of Great Britain. The small bounty allowed their fishermen is only equivalent to the duty on the salt used in curing their fish. The French nation engaged in the Fisheries, not so much as a commercial pursuit, as a means of fostering and extending their national power and the large bounties they grant from national motives would completely destroy the position of British Fishermen, sustained only by private enterprise; that the concession to the Americans under the Reciprocity Treaty of 1854 was contingent on the assent of the Local Legislature, who, seeing the reciprocal advantages likely to result to our trade, accepted the terms of the Treaty; and it should be remembered that the Americans have now a right in common with the British Fishermen to fish on our Coasts. The extension of such a privilege to any other power would considerably complicate this right, and would tend to engender conflicts between the fishermen of the three nations, and disturb the peaceful relations happily existing between those powers.

Further comment upon these ill-fated negotiations is necessary to show the chance Labouchere took with them; a chance not only upon achieving the agreement, but upon binding the colony in its less ambiguous articles. Replying to Sir John Pakington in the Commons on May 11, 1857, Labouchere announced that, "having had all the facts of the case before them, [Her Majesty's Government] had thought the best chance they could have-for it was but a chance-of coming to a resolution that would be satisfactory to the two governments, was to conclude a convention with France without any previous communication with the colony, while an express stipulation should be inserted in that convention that it should have no effect unless it should be ratified by the colonial legislature." The "express stipulation" was fortunate for the colonial legislature, and

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37

their consent was withheld. Labouchere accepted defeat in a despatch to Darling which set down a principle that the colony never allowed Her Majesty's government to forget, and that was later brought forth upon every occasion of real or imagined grievance: "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 assurances 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 rig~1rs." 9 After this failure conditions on the treaty coast worsened. France proceeded to press her claims with vigour. Newfoundland was equally determined to resist and at the same time prevent another attempt to sacrifice her maritime and territorial rights. In January 1858 Governor Bannerman 10 warned the assembly of dangers lurking on the treaty shore because of the presence there of two powerful nations, France and the United States, participating in the fishery along with the local residents. At the governor's suggestion a Fisheries Commission was appointed to formulate regulations for the control of the fishery, and on the basis of a subsequent report the legislature passed a measure to prohibit the export of bait. The bill was disallowed. Responsible government was permitted to obstruct an Imperial convention, but not to initiate and carry an independent course. Following a commission of enquiry into the Franco-Newfoundland problem in the autumn of 1859, and on the basis of suggestions put forward in a privatP memorandum by the commissioners, the British government sought a second arrangement with France which they hoped would be more successful than the agreement of 1857. The colonial assembly's co-operation was secured only when the home government promised an enquiry into treaty violations, and respect for the Labouchere pledge upon questions touching colonial territorial and maritime rights. Failure to include a Newfoundlander among the British team and lack of information about the negotiations of 1860, except what imagination could provide, raised the apprehensions of the colony. A special meeting of the legislature was called in December 1860, and subsequently they despatched an address to the Duke of Newcastle and the governments of Canada, New Brunswick, Nova Scotia, and Prince Edward Island, in which was expressed the "surprise and alarm" with which ·they had heard that "the convention in the course of negotiation ... is not to be submitted for the assent of the People of this colony." Such treatment, the address declared, would be a violation of the Labouchere pledge and it asked the British government, "not to disturb the sacred right of the Colonists, for, apart from the injustice, we should deeply regret the stain it would cast on the Imperial name." That Newfoundland's fears were not all imaginary is revealed in a statement in the Commons in March that the "Convention in course of execution with the French Government was for the preservation of the national maritime rights of France, and did not interfere with the territorial or maritime rights of Newfoundland," hence it would not be submitted to the Newfoundland legislature. The Convention was signed, but the colony was saved from refusing further co-operation when France sought to secure the right to remove all fixed British establishments, and disagreement arose over the

38

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

punishment of offenders in fishery disputes. Newfoundland was not grateful for this narrow escape. "Coercion" was an ugly policy whether applied or only intended. Through the diplomatic quibbles on lingual ambiguities in Paris and the fretful rumours in St. John's came a warning from Governor Bannerman that, apart from the prerogative of the Crown and the comon law of England, no law existed on the statute book (except the expired act of 1824) to "confirm the rights and privileges" of the French treaties. 11 When a generation later the cry of "coercion" was raised again, Newfoundlanders discovered this fact. During and following all the unsuccessful negotiations between 1857 and 1876, France was not inclined to relax her hold on the coast she considered her own. Instead of gradual withdrawal under the pressure of an increasing local population, there was steady maintenance of the coast by attempts to extort from the British government an endorsement of the most extreme interpretations of the treaties. All the debatable points settled by compromise in the two luckless conventions were still in dispute, and though the British government did not agree with all French pretensions, their failure to meet the French with as resolute a policy often left France hindered with a mere denial of claims she continued to practise. Clearly, since the Newfoundland government possessed little influence in the process of negotiations between Great Britain and France, and there was always the possibility that the promise in the Labouchere despatch could be evaded, the best course open to the colony was possession by settlement and the extension of local authority to the west. For some time appeals had been made to the Colonial Office for permission to grant land and appoint locally controlled magistrates on the shore. Settlers were not secure, for the power to improve their tenure was beyond the ability of colonial government. France maintained that residents had no right on the shore unless she gave them permission to remain; even then the liberty could be withdrawn at pleasure. The colonial authorities were convinced the treaties did not prohibit settlement, for the fixed establishments forbidden by the declaration of 1783 referred only to those which transient fishermen might erect. British policy in this regard was indeterminate, preferring to favour neither France nor the colony. None the less it was scarcely unnatural for the residents and the colonial government to desire a clarification of their position; but the answers they received were unwelcome. It has been customary to blame the British government for the withdrawal of local magistrates from the treaty shore. Negligent as the Colonial Office may have been at times towards the interests of the colony, this is unjustified. In 1843 senior naval officers on the Newfoundland station were commissioned by the local authorities as justices of the peace, with British approval; they were instructed to arrest offenders and send them for trial to colonial courts. These officers, like the old naval governors, were present only for a few months of each year in the fishing season, and could be in but one place at a time. When they departed from the shore in early October the west lived in a lawless vacuum. To remedy this unsatisfactory condition the British government in 1849 gave permission to appoint civil magistrates to reside at St. George's Bay where the largest part of the western population lived. Both stipendiary and honorary magistrates were appointed, the honorary magistrate being Mr. H. H. Forrest of St. George's Bay.

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Even this limited establishment of law was better than none; but in 1853, through the refusal of the local assembly to vote a remuneration for the western stipendiary magistrate, the latter office was annulled. Governor Hamilton was informed "that as the inhabitants of St. George's Bay contribute no duties to the Revenue of this colony, it is expedient that the office of Stipendiary magistrate for that Bay be abolished." 12 The assembly's retrograde policy may be partly explained by the Imperial government's attitude towards land tenure on the treaty coast, though there is also evidence that the first incumbent as stipendiary magistrate was unacceptable to the Bay, and he may have been removed to spite the nonduty-paying inhabitants. Honorary magistrates remained. Upon the granting of a new constitution to Newfoundland in 1832, Governor Cochrane's Commission had contained the following advice pertinent to land grants: And we do likewise give and grant unto you full power and authority, by and with the advice and consent of our Said Council, to settle and agree that the inhabitants of Our Said Island and its Dependencies for such lands, tenements and hereditaments as are now, or hereafter shall be, in Our Power to dispose of, and them to grant to any person or persons upon such terms, and under such moderate quit rents, services and engagements to be thereupon reserved to Us, as you or they, by the advice aforesaid, shall be fit, which said grants are to pass and to be sealed by Our Public Seal of our Said Island ... and being entered upon record by such Officer or Officers as shall be appointed thereunto, shall be good and effective in law against Us, our heirs and successors.

Lord Goderich also advised the governor: You will observe that the expense of collecting this branch of Revenue is to be deducted from its gross proceeds, and that these arrangements do not embrace any part of that revenue which accrues to the Crown in virtue of His Majesty's prerogatives. Such for example are the rents or the proceeds of the sales of Crown Lands, escheats, fines and forfeitures. His Majesty is, however, graciously pleased to authorise you to assure the Council and Assembly that whatever money may accrue to the Crown in the Island will always be applied towards the expense of the Civil or Military Government, or towards objects strictly and exclusively local.

On the basis of the governor's Commission, the legislature in 1844 passed an act

which established the procedure for disposal of Crown lands, the issue of grants,

and future disbursement of revenue, and which included no restrictions or reservations concerning the treaty coast. In somewhat contradictory fashion-in view of Imperial policy towards representation on the coast-this act was not disallowed. A further measure in 1860 which amended that of 1844 and provided for mining licences, leases, and grants of mineral lands and for other purposes, including the treaty coast, also obtained royal assent. By this time, however, the whole question of French rights was sub judice. Apprehensive lest the Newfoundland government rush the castle, the Colonial Secretary wrote to Governor Bannerman: "I think it right, however, to caution you, confidentially not to be a party (without the authority of Her Majesty's Government) to any grants of land which would interfere with the rights secured by Treaty to the French in what is termed the 'French Shore."' This principle was maintained by Cardwell in October 1865, when in response to an enquiry from the governor, as to whether he could grant land in Bay of Islands, he answered: "I do not think, in the present unsettled state of the fishery question that it will be expedient to make any grants of land on the French Shore." This Imperial rider was inconvenient and frustrating in view of the acts of 1844 and 1860. Newfoundland's growing interest

40

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

in the agricultural and mineral potentialities of the treaty coast, and its consequent displeasure, were conveyed in a despatch from Governor Musgrave 13 in June 1866. Hence colonial complaints and promptings inclined Carnarvon, as colonial secretary, to reopen negotiations with France for a general settlement. Already in April 1866 certain questions had been put to the Law Officers of the Crown: whether 28 George III, c. 35, and 5 George IV, c. 5, were still in force; whether the British government could remove fixed settlements; whether "fixed establishments" meant all buildings or just those connected with the fishery; and how far inland French treaty rights penetrated. The Law Officers declared that the act of 1788 was not in force, that the act of 1824 was continued by 2 and 3 William IV, c. 79, which had expired in 1834 and had not been renewed, and therefore no statutory right existed for the removal of fixed settlements on the treaty coast. In their opinion the term "fixed establishments" referred to all structures without exception, and the inland rights of France depended upon the construction placed on the treaties of Utrecht and Versailles. This latter was not the least dangerous admission, since in interpretation a French construction was as good as a British. Obviously compromise was necessary. Nevertheless, nothing definite was achieved that year, for Carnarvon advised Musgrave that "meanwhile, pending the settlement of French and British rights on the coast, I am unable to authorise the appointment of British magistrates . . . [or] to make any grants of land on that coast." The conferences between the British North American colonies over Confederation did not mark a turning point in Newfoundland's history but rather emphasized the independent course which the island for generations had sought unsuccessfully, and had enjoyed but imperfectly for slightly more than thirty years. The colony had no official role in the Halifax and Charlottetown conferences. If Newfoundland delegates were sent to Quebec not merely out of curiosity, then they went as representatives of a lukewarm interest. No one at all was sent to London. No serious railway ambitions stirred the islanders, for railways could not guarantee a share in the wealth of the continent; while in the fisheries the adjacent colonies were competitive, not complementary. The island's maritime defence was not in doubt and there was little to fear from Lincoln's victorious armies. The public debt was small, finances were not currently in jeopardy, and Newfoundland could borrow at a lower rate than any other British colony interested in Confederation. Favourable as were the terms offered at the Quebec Conference for Newfoundland's association, they were not, accordingly, sufficiently attractive to bring about a change of anchorage. Yet there was a skeleton in the locker of the island's economy which in hard times and good rattled its bones in warning. The prevalence of pauperism before and during the 1860's supported the contention that the cod fishery could no longer sustain the people, particularly if there were no changes in cure and distribution. In some years a quarter of the colonial revenue was spent on relief or road-making, which was considered dole with hard labour. Unsuccessful and indifferent yields from the cod and seal fisheries were the chief causes of these bad times, which intensified the need to find other sources of colonial wealth. Years of better fisheries helped to dissuade the colonists from union with the other British North American possessions, but

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to responsible observers there remained always the possibility of periodic recession. Meanwhile, the general situation on the treaty shore had changed little by the late 1860's. In the continued absence of public education, four clergymen brought the leaven of Christian instruction to the people; civil authority was still largely unknown, and in the absence of easy communications each settlement was isolated, inbred, and of very limited outlook. They knew little of their own shore and, except those who had recently moved in, less of the remainder of Newfoundland, while of the intricacies of the Anglo-French treaties they were scarcely aware. Nevertheless their living standards were probably not worse than most of the older eastern communities. "The mass of voters in this colony," wrote Governor Hill 14 after the election of 1869, ".. . are an ignorant, lawless, prejudiced body, the majority of whom living as they do in the Out Posts in almost a primitive state of existence, are unfit subjects for educated and intellectual men to attempt to reason with on the advantages of Confederation." Small but definite gains were made in the west during the 1870's, economically, socially, and juridically. Meagre though they were, these developments influenced the western problem. Illiterate isolated fishermen did not find extraordinary the paternal supervision of naval officers, but a little education could give to their children ideas larger than the quantities of learning daily dispensed by teachers imported from less benighted places. A champion of the west coast in these years, Monsignor Sears, deplored the absence of civilized amenities, and considered the residents at the mercy of heartless traders and petty merchants. In Bay of Islands where he lived, the inhabitants fished for herring which came into the bay in large numbers during the winter and were caught through the ice. A large fleet of craft took part in the spring and summer fisheries which included herring, salmon, and some cod. Grave detriments to this and other western communities were a lack of roads for trade that would reduce the dominance of the traders and merchants, and a lack of immigrants to avail themselves of the land resources of the region. In winter when ice sealed in the Bay of Islands the Canadians and Americans were unable to buy the abundant herring, while the roadless interior precluded removal of the catch to southern settlements, such as ice-free La Poile, where it could be sold when demand was keen and prices high. In spring, bait appeared at other places in such abundance that the stored winter herring sold only at a low price. Unmindful of the legal restrictions Sears tried to encourage settlers to come to the west coast, but he repined that geographical impediments deterred them. Capricious steamer services, for instance, required a person from Sidney in Cape Breton to travel to Halifax, go by sea to St. John's, thence to Channel (only ninety miles from the point de depart), there either await a ship going to St. George's Bay and Bay of Islands, or walk one hundred to two hundred miles through trackless forest, marsh, and bush. The priest's efforts to secure government funds for road-building met with no response except the excuse that fishermen would resent taxation for roads beneficial only to a few farmers; but their failure to contribute revenue was probably responsible for the refusal. In 1874, Commander Howarth, R.N., senior officer on the Newfoundland station, made a careful survey of the treaty coast. St. George's Bay, he wrote, bade fair to become a centre of trade; it had a good spring herring fishery and

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THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

in the hinterland were deposits of coal, iron, limestone, and gypsum, sufficient prerequisites for a prosperous community. In the Codroy Valley to the south, a smaller community enjoyed a good fishery and fine tarm land. At Bay of Islands he saw a small cod fishery and fair herring business, counted about three hundred fishermen, and twenty to thirty new families. There was a school at Lark Harbour, and a school and church at Birchy Cove. At Deer Pond thirty eastern and Nova Scotian families had settled since 1873; their small farms already grew wheat, oats, and potatoes. Two sawmills which Sears had seen in 1869 still operated, the smaller owned by an American, the other by a Nova Scotian. They employed about seventy men and cut twenty to thirty thousand board feet of lumber a day, most of which went to the United States. Forests were recklessly cut, and apart from wages to the Newfoundland labourer the island derived no benefit, for the trade was unregulated and contributed nothing to colonial revenues. In addition to fish, land, and lumber, there was coal, marble, slate, iron, limestone, and copper awaiting prospector and capitalist. Already the shore's mineral wealth had drawn American attention. In Howarth's opinion these resources were of greater value than the fisheries, and steps ought to be taken to guard these new interests and assure benefit to the colonial treasury. To this end he advocated a more thorough magisterial system, for "nothing but the remarkable interpretation put upon the treaties with France can prevent this [ coast from Codroy to Bonne Bay] from becoming a most important district, yielding a large revenue to the colony, and affording an assured means of livelihood to its population." The scenery and climate were the most attractive in the island, and already a new type of settler was moving in, less tractable than his precursor, and unused to communities subject only to the seasonal supervision of the British navy. Howarth feared that the arrival of this new class of immigrant, who might be unwilling to accept the authority customarily wielded by French naval officers, portended an increased number of incidents. On the northeast coast at this time, where settlers were few, there existed between the French and the nomadic fishermen from the eastern bays a truce based upon reciprocal threats of violence. M. Aubrey, French senior officer, had lately informed Howarth that he was restrained from removing British nets (which he considered justified by the exclusive nature of French claims) because of the nomads' threats to burn French property in retaliation. "That is to say," asserted Howarth, ".. . the French are willing, where their own property is in danger, to compound for their own breach of the treaty, in leaving nets, boats etc., on the coast during the winter, by conniving at or even permitting the systematic breach of treaties by the English." It must here be added that Howarth held that breaches by the English fishermen were not refusals to accept French treaty interpretations, but rather attempts to interfere with and interrupt the French fishery. He further castigated the French: "They are disposed to enforce their view on the west coast where from the more peaceable disposition of the population they are in less fear of retaliation." Howarth recommended the appointment of special constables to receive French complaints, to remove the nets of unco-operative British fishermen (if known to interfere with the French), and to forward to St. John's or to a British man-of-war reports of all incidents. This policy had been used with success at St. Anthony and neighbouring harbours.

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Both priest and naval officer agreed upon the value of the west coast in other than piscatorial resources; compared to the remainder of the colony its potentialities were almost unrivalled, for fertile soil, mineral wealth, and forest products offered the people some liberation from the fishing boat. No change was possible, thought Sears, until the local authorities opened the trackless areas and the British government solved the French problem. Of the two concerns, roads were more important, for settler and capitalist would be attracted; and had these been built previously, "the French nation, in the interests of humanity, would desist placing any obstruction in the way of improving the country, when they would find that there was no intention of encroaching on what they consider as their just right. Again they would be glad to see law and order established; for then there would be a means of redress at hand." The French unhappily were not to be so obliging when an attempt was made to follow Sears' advice, nor were the settlers so finical about the niceties of French rights, whether interpreted in London or Paris. Customarily, even after the withdrawal of their own magistrate, the colonial government commissioned two British naval officers on the Newfoundland station justices of the peace with powers similar to those held by civil magistrates in other parts of the colony, but their Imperial duties took precedence over colonial responsibilities, as the officers according to their instructions sought to keep peace among British and French fishermen engaged on the treaty coast. Manifold treaty interpretations complicated their task, and they were often reduced to mere recipients of all complaints from French and colonists, as either side tended to hold the officers responsible if their sacrosanct view of the treaties were not upheld. On the officers' departure from the coast their commissions expired, whereupon the area was bereft of authority until the following season. The British government did not include in their instructions to naval officers a decided interpretation of the treaties, an inconvenience from which the French officers did not suffer. In the season of 1871 during a conversation with French officers, Captain Brown was reminded of the exclusive nature of French rights, and of the intention to reoccupy a number of fishing stations which for several years had been neglected. Among the places mentioned were Conche, with 180 British settlers, Griquet with 70, and Pistolet Bay with 100. Faced with this ultimatum which could seriously disturb 350 people, the officer was powerless except to pose to Governor Hill a number of questions about which he ought to have received prior information, and to offer advice on the need for a better local administration, of which the colonial government were already aware. The questions were answered by Governor Hill, despatched to the colonial secretary for approval, referred to the Law Officers for legal opinion, and returned to Governor Hill, by which time Brown had departed and, as was usual, the French had left the communities undisturbed. Brown too urged upon Hill the need for a more effective magisterial system to meet any serious situation which could arise from the application of French policy similar to that outlined above. The present judicial powers of the naval officers, he said, were of "little or no use" because such powers were based on law, "whereas on the French Shore no law existed." This legal deficiency was infinitely worse than he knew, because of the British government's failure to re-enact 2 and 3 William IV, c. 79, which had expired in 1834 and by which

44

THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

parliamentary sanction had been given for the execution of the treaties. Fortunately no one, as yet, had challenged the navy's authority to execute the agreements. Furthermore the magisterial commissions of these men were not unquestionable in an area where all permanent establishments had been declared illegal by the Law Officers in 1866, a judgment tantamount to a proscription against settlement. The chief danger lay in the new settler who from self-interest might prefer legality in place of tradition, especially if the latter prejudiced hi~ own interests. Doubtless, without the naval officers the prolonged French problem would have been a more serious difficulty. The positive French officers and the briefless British had rarely committed an indiscretion serious enough to warrant more than diplomatic protest from either London or Paris, and where criticism was applied the "illegal'' action usually found support in the particular treaty interpretation held by the "transgressor." Frequent warnings had been made, and were to be made, against a policy which placed the peace of Britain and France in the hands of naval officers faced annually with irritating questions for which no satisfactory answer existed. "The means were always available," reported Admiral Milne in 1864, "of bringing about an angry discussion whenever the officers employed on the spot might from want of judgement or discretion, or from some national prejudice, be inclined to work a change in the existing amicable state of relations between the two Countries." 15 The undeveloped and neglected state of the coast imposed upon naval officers a multiplicity of duties which received the plaudits of neither the colonial nor the Imperial governments. Captain Howarth, perhaps intentionally, referred throughout his report to many of these obligations, some onerous. The officers made reports on agriculture, fisheries, minerals, lumbering, Anglo-French relations, and the health of the people; gave medical aid to those who sought it; offered advice on the probable causes of cattle deaths; heard complaints against the extortions of merchants; enforced local regulations concerning the fisheries; swore in, when needed, special constables to aid in the preservation of order; held church services on board their ships to which the residents nearby were invited. Howarth was an exceptional officer but by no means the only one who engaged in so many varied avocations. In 1881 Captain Kennedy forwarded to the Admiralty his report on the activities of his ships, in which were included weather reports, a statement upon the condition of the fishery, facts concerning the illegal barring of rivers and the construction of salmon weirs, the good and bad habits of nomadic fishermen on the northeast coast, as well as information on an epidemic of measles on the treaty coast. Certainly many of these duties were prescribed, and will occasion no surprise; but added to the task of adjudicating treaty infractions, hearing complaints from the French against the British and the British against the French, and facing the expected and, more important, the unexpected eventualities of the summer, they form a contribution to the history of Newfoundland which has not received full recognition. When the French problem became a newsworthy subject, and the activities of the naval forces were brought under the scrutiny of the colonial press, severe and petty criticism was often directed against these officers. "We don't find," chattered the Evening Telegram, "the cruising war-ships of our yarry neighbours, the French and the Americans, lying in port for weeks at a time, while barnacles

THE FRENCH AND A NASCENT COLONY

45

grow on their bottoms, and human 'barnacles' in charge of them are 'showing themselves about town' like dancing masters." 16 Even Halifax papers poked their noses along the treaty shore, discussed the unpleasant incidents between French officers and British fishermen, and remarked that whenever Captain Kennedy of H.M.S. Druid was steaming into a troubled harbour the French ship Clorinde was invariably steaming out. Too much time, it was said, went to the transportation of certain "sporting gentlemen" out hunting caribou. Nevertheless the thousands of pounds spent annually in the colony by these officers for coal, supplies, and services were appreciated, and to any public function they added colour and distinction. The first Imperial concession came at the beginning of 1877, when permission was finally given to appoint a magistrate at St. George's Bay, provided the choice rested with the colonial secretary and the appointee abstained from adjudicating upon any point in which a disputed interpretation of treaties was involved. A second appointment was promised if essential, but meanwhile, apart from St. George's Bay, the protection of life and property and the prevention of disputes among fishermen remained the responsibility of the senior naval officer. The step was a tentative one and the appointment of Commander Howarth, now retired, to this office of stipendiary magistrate revealed the timorous mood. But the Newfoundland government boldly grasped "opportunity by the forelock" and in 1878 also appointed customs officers at St. George's Bay. For this minimum service of civil authority the residents of the west coast would have to pay. The colony, through the able pleading of Sir William Whiteway, 17 was conceded a moral victory from the award of the Halifax Commission which sat in accordance with the compensation clause of the Treaty of Washington. In his speech of acknowledgement to the legislature's vote of thanks for his part in the award Whiteway emphasized that: ... Newfoundland conceded to the United States a free right of fishing on the coast from Ramea Islands by Cape Race to Cape John. What was the value of this concession? Had the Commission found nothing in our favour, what would have been the effect hereafter in British negotiations with the United States and with France? Let us for a moment suppose the case of Great Britain proposing to us to give the French a free right of fishing all along our coast, with a view to the solution of our so-called French Shore difficulty. We know that this course would prove our ruin, but the argument of Great Britain to us would have been unanswerable: "You have had the opportunity of a solemn inquiry before a disinterested tribunal sitting in the very centre of your fisheries, where every facility was at hand for fully investigating their value, and the conclusion arrived at, after six months inquiry by that tribunal, was, that a right to fish along your coast was not worth anything." I venture to say that probably the true position and importance of this inquiry was not generally appreciated here at the time of this Commission, or we should not have had loose, ill-considered opinions expressed. The decision had established that which would for all time endure to the benefit of the country. It has been decided after a most rigid investigation that the right to fish along a portion of our coast for 12 years, under the facts given in evidence, is worth one million dollars. We have now an established basis, and I look upon this as of the greatest importance, and that upon which we cannot set too high a value. 18

The obvious detriment of this assessment was the implied valuation placed on French rights, but as the colonial authorities never entertained an intention to compensate France if ever she surrendered her title, the implication, if it occurred to any of them, gave no cause for disquiet. These successes were followed by further Imperial restraint in 1878, when a

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THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

local act to extend the franchise to the treaty coast was disallowed, while resolutions advocating the support of a proposed railway to St. George's Bay, adopted by the legislature, invoked the disapproval of the Colonial Office because its western terminus would be on the treaty coast. The British government declined to give assurances that the required terminal buildings would be allowed within the treaty limits. "The period appears to have arrived," Governor Hill had announced at the opening of the legislature in 1875, "when a question which has for some time engaged public discussion . . . the construction of a railway across the Island to St. George's Bay, should receive a practical solution." A proposition was later submitted to the legislature for a careful survey to ascertain the best route and whether the island possessed sufficient inducement to capital and sponsors for the project. Canadian engineers working under the direction of Sandford Fleming demonstrated that no great engineering feats were required to construct a line across the island. Prowse has given, as the main reasons for the railway project, a need to connect St. John's with the larger communities of Conception Bay and more northerly regions, to open the interior to economic development, and in time to link the island with the outside world, particularly "go ahead America." In addition, there is no doubt that the colonial government cherished a hope that the railroad would help bring the west under local control; but many years passed before the first tie was laid. Certain authors have stated that France objected to the railway near the treaty shore merely because the train whistle would frighten away the fish, but the French could scarcely have been so witless. Repeatedly they had emphasized their objection to settlement, and little perspicacity was required to comprehend the momentum already given by the railways in America to continental migration. A repetition in Newfoundland, even on a much smaller scale, would be detrimental to French interests. (As it was, despite legal inpediment, settlement had increased on the treaty shore, and now magistrates had been allowed.) Not the fish would be frightened by the railway whistle, but the French. Premier Whiteway tried to convince the Colonial Office that the projected railway was part of Sandford Fleming's dream to link Britain with the Pacific, incidentally adding that it would help to develop the colony, for Newfoundland was "likely to become one of the first mining countries of the world." Having assumed British commitments, he thought, Newfoundlanders merited the right to exploit their resources. If further persuasion were needed, he argued that his country in its present state was a weak link in the chain of British North American defence; but considering the attitude of the Admiralty towards Newfoundland at this period, and for long afterwards, the colony was not a link of any kind. Fortunately the writ of France did not extend to the whole island. Hence a another railway scheme was planned to extend between St. John's and Hall's Bay. This step was coupled with an enquiry into the economic condition of the colony by a joint committee of the legislature in 1880. The fisheries, its report revealed, were no longer able to support the population. Expansion was possible, but in view of competition, increased production would lead only to reduced prices. The existence of mineral wealth could no longer be disputed; and "vast stretches of agricultural land extending from Trinity Bay north, along the heads of Bonavista Bay, Gander Bay and Exploits River, as well as on the west coast,

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need only the employment of well directed labour to convert them into means of independent support for thousands of the population." St. John's was a growing market for farm produce; even in its environs there were prosperous farms on less fertile soil. Moreover, there were indications "leading to the conclusion that we shall hereafter be more dependent than before on home supply of live stock, for in those places from which we have hitherto received our meat supplies, attention is being given to the English markets, which is supposed to offer better prospects, and an advanced value may therefore be reasonably anticipated." Carried away with its own zeal, the committee stated that Newfoundland could in time export livestock to England because the colony possessed good land unsurpassed in British North America. Dormant resources ought to be utilized; the present sound financial condition of the colony made this the right moment. More realistically, the report continued: "We do not regard it per se as an enterprise that will pay, or as one offering attraction to speculators, but as the work of the country, and in its bearing on the promotion of the well being of the people, in which returns are alone sought and will be found, it eminently commends itself to our judgment." 19 Notwithstanding this report, the railway bill of 1880 met stiff opposition from the merchants who feared a rise in wages would follow increased demand for labour. It became law on April 29, 1881, and though Sir William Whiteway had hoped to make the project a colonial accomplishment, the contract was awarded to an American company. This appeared to the New York press as a victory for American interests: " .. . as the proposed line will traverse the great mineral area of the country the New York capitalists have now, in all probability, secured a title which means the possession of pretty much all of Newfoundland worth owning. The Newfoundlanders would have done better to have sold their whole island for cash." 20

CHAPTER THREE

OCEANIA AND THE TREATY COAST SINCE 1857, it had been the British government, usually prompted by the Newfoundland administration, that had taken the initiative in seeking any renewal of negotiations over the treaty shore. A change occurred in 1880 when the French government, following its establishment of a protectorate over Raiatea in the South Pacific, contrary to the Anglo-French declaration of 1847 concerning the islands "sous le vent de Tahiti," adduced reasons why France should not withdraw, and suggested that the problem be linked with that of Newfoundland. After consultation with Kimberley, the colonial secretary, who thought the conclusion of a satisfactory settlement of the fisheries question could be an equivalent for the abrogation of the declaration of 1847, Granville, the British foreign secretary, informed the French government that "in the event of the proposed negotiations not resulting within a date to be fixed in the abrogation of the Declaration . .. their Protectorate should be at once withdrawn and the Declaration maintained and observed in its fullest integrity." June 30, 1881, was set for the expiry of the illegal protectorate in the Pacific, but the date was set forward several times to meet the complications arising from the determination of both France and Newfoundland to exploit every advantage in the situation. In the early part of 1881 Lord Lyons, the British ambassador in Paris, put forward a few practical proposals concerning the negotiations likely to commence that year. He concurred with Kimberley's decision to reserve complete freedom on new proposals presented by either side, thought abstract discussions on treaty rights in Newfoundland should be eschewed, stressed the urgency of an arrangement satisfactory to all concerned, and because of the amount of local and technical detail involved, advised negotiation by a commission, with the services of Sir William Whiteway placed at the disposal of the British commissioner. It was customary to hold these discussions in Paris; but Lyons thought London on this occasion might be preferable, because he could not "escape from the painful admission . . . that [the negotiations] have always failed." Superstition was not Lyons' motive for the change of scene, nor was Paris, in his view, the reason for failure. Success had eluded previous negotiations mainly because the Newfoundland legislature had refused assent to "any terms to which the French could be brought to listen." Whiteway's "ability, tact and indeed moderation" did not prevent Lyons from advising the British government to keep the colonial premier in London "for it might be awkward and embarrassing for him in Paris where he might come under direct influence from the French Government." Apparently negotiations between the colonial and Imperial governments were now as important as those between London and Paris, and to make Anglo-Newfoundland agreements easier to achieve colonial leaders must be insulated from foreign influences. The commission first met on May 26, when Admiral Miller who had led the

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previous negotiations represented the British government, assisted by Ford Pennell of the Colonial Office, while France sent Contre Amira! Pierre, an officer experienced in the Newfoundland fisheries. On the same day Miller reported that Pierre in spite of the French call for discussion was unprepared to submit proposals, but instead requested a statement of the concessions required from the French government in return for the abrogation of the declaration. When informed, Granville wrote that Miller "may be authorised to inform the French Commissioner ... that Her Majesty's Government agree to the abrogation ... in the event of the Newfoundland Fishery question being settled to the satisfaction of Her Majesty's Government." A draft agreement, to which Whiteway gave his approval, was prepared with Granville's implied quid pro quo in mind, and including all the problems existing between the two countries in Newfoundland. The draft was unacceptable to Pierre. He put forward various criticisms, one against the suggestion to divide harbours between British and French fishermen, which, he said, would never be accepted by his government because it could lead to frequent quarrels and disputes. It is probable, however, that the main obstacle was the limited objective which France intended to secure from these discussions. When at the first interview Pierre remarked that Raiatea was such "a small matter," Miller thought him merely unwilling to submit the initial proposal, but to the annoyance of the British government the French admiral never budged from this position. If Raiatea were a small matter how could large concessions be required of France? Pierre's idea of fair exchange was a French withdrawal of territorial claims from the shore between Cape Ray and St. George's Bay, which was meant as a generous gesture intended to convey that France would no longer hinder settlement or colonial development there. Miller in reply argued the British right to develop the whole coast as inherent in the Crown's sovereignty, and that therefore the French concession equalled nothing. To this Pierre smugly countered that the two governments could debate for a hundred years on different interpretations, but his offer was practical, since at least a part of the shore would be free. Whiteway disapproved of Pierre's offer but on grounds other than the point of sovereignty. The coast in question was not a fishing ground, except at Codroy Island. Even there only ten Frenchmen had fished in 1879, and decreasing numbers since; and between Cape Ray and Port-au-Choix, apart from Codroy and Red islands, where on the last report there were one hundred and twenty Frenchmen, the strand was not used by France for fishing purposes. Therefore, if only the landing rights were surrendered and fishing rights maintained, Pierre's concession again betokened nothing. An equivalent, thought Whiteway, required a waiver of French rights between Cape St. John and Fleur de Lis in addition to the section of the coast already preferred. The decision to reject the French offer ended Britain's freedom of action over Raiatea as a subject related to the Newfoundland fisheries, for later, at what appeared to be more promising negotiations, New Zealand and the Australian colonies protested against French encroachment in the Pacific. At this point Miller recommended to the Colonial Office a different approach -settlement by purchase. The value of French rights, he believed, consisted in their usefulness in the scheme for training seamen, in the monetary returns to individual Frenchmen or firms engaged in the fishery, and in their nugatory effect on western colonial development. Several years before in the Revue des

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THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

deux Mondes, a French naval officer had declared the Newfoundland fisheries useless to France for training seamen, which took care of that aspect of evaluation. Commercially, however, some ground existed for monetary compensation, and, wrote Miller, "taking the French Annuals' fishery statistics as my guide I calculated . . . [this] to be worth capitalized about 2 million sterling at the outside." Caution was necessary in broaching this subject, because Miller had earlier placed a similar solution before de Boissody, who had considered it a degradation to France; but there was reason to believe Pierre would receive the suggestion amiably. In urging this procedure he realized that Her Majesty's government did not accept the validity of French claims but feared "that as the Newfoundland question is always a thorn in our side it may very probably be used by the French at a convenient moment when we may be in difficulty as a casus belli." 1 Before advancing this solution Miller on August 2 again urged Pierre to consider a general settlement, or at least one which would allow colonial development where need was pressing. As a counter to Pierre's offer Miller sought French consent to industrial development south of 50° latitude on the west coast and east of White Bay on the northeast, with French rights to remain as hithertofore. Whose interpretation of "hithertofore" was not mentioned, but in any case Pierre disapproved of the offer because it would encourage settlement which, in order to maintain the full practical value of the treaty rights, his government emphatically opposed. On the other hand, if a British man-of-war were sent to Raiatea in company with a French vessel and, without the use of force, recommended to the natives a French protectorate, Pierre expressed himself willing, though without authority as yet, to extend his previous offer to the isthmus of Port au Port exclusive of Red Island. Lord Granville thought Pierre had spent three months emphasizing the wrong subject, and advised the suspension of the negotiations until the French government were "prepared to carry out the understanding that the Conference ... should have for its object the settlement of the general question, and not merely of the terms on which Her Majesty's government would be willing to waive their rights . . . respecting Raiatea." This information was conveyed to Pierre on August 30, but before parting Miller asked if money compensation would be preferable to another arrangement. Pierre accepted the question without offence, and expressed himself willing to put it before his government; Miller hastily interposed that he had no authority to ask him to do so. When Pierre asked the amount of compensation the British government were prepared to give, Miller made no mention of the £2 million sterling, but instead made a safely vague reference to the need for an expert's computation. The Frenchman's calculation, jokingly given, said Miller, was that his government would accept a milliard but not a million francs, a remark which was understood to mean that France would consider money if the amount offered were generous. "I thought it advisable," reported Miller, "to sound him on this point because as far as I was aware there are no other equivalents which could be offered." To give France time for consideration the provisional protectorate was extended to December 31. Some measure of relief was none the less achieved for the treaty coa~t that summer through the earnest representations of Whiteway. Unquestionably he supported the British government's plan for a general settlement as against the

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French piecemeal policy, but merely to assist the Colonial Office in its stand was not the purpose of the premier's visit to London. The keynote of his policy can be found in an article of April 2 in the colonial Morning Chronicle, edited by the financial secretary: "The substance of the argument put forward by both sides of our Colonial Parliament, and generally accepted, is that we must keep agitating this French Shore Question until we are permitted by Her Majesty to go in and possess the land." The "best agricultural, and mineral lands, and our best fishing grounds," it complained, "are made a dead letter to us because of the British deference to French pretentions." Soon, it continued, the British government would be unable to keep the colonists out of the west even if a special case had to be made of the issue; appeals to throne and cabinet had failed, aid must now be sought from the Commons, but meanwhile, "Newfoundlanders, go in and possess all your territory." It is clear, therefore, that Whiteway, as much as Pierre, was a suppliant in London; each was anxious to extend control over territory in which the legal restraint was held by the British government. Whiteway's chances were improved by the obvious disagreement between the two main parties on the extent of French territorial rights; a hesitant Imperial government might succumb to colonial importunity. At the end of July Whiteway urged the British government to permit local control of land and mining grants on the French shore. The lawless state of the coast demanded it, and a failure to return with the concession would lead to serious disappointment in the colony. Grants, he stated, could carry the proviso that no fixed settlements which were contrary to the declaration of 1783, or which Her Majesty's government forbad, should be allowed on the treaty coast. By way of explanation, he contended that not all fixed settlements were condemned, for the words in the declaration which forbad either party to deviate from the ancient fishery proved the expectation that both French and British were to be there-the French in the winter only, but the British always, as owners of the island. The French, he continued, were guaranteed an uninterrupted right to fish, but not to dry their fish. Such activity required only a few yards of beach "and for this accommodation surely it never [was] contemplated that a thousand miles of coast half a mile wide should ever remain a wilderness and effectually bar all operations as well there as in the interior of the island." He had no wish to hinder France in her enjoyment of a liberal interpretation of the treaty, but recurrent periods of depression, when resources existed to ease the problem, imposed unnecessary suffering on the colony. Towards the end of August the Foreign Office expressed the opinion that if proper guarantees were secured the development of colonial resources on the treaty coast need not interfere with French rights. Land grants should quote these relevant rights and be subject to forfeiture if the terms concerning them were not fulfilled, and fixed establishments on the shore should be forbidden unless specifically approved by Her Majesty's government. By year's end, after considerable correspondence in which the anxiety of the Foreign Office to safeguard French rights was much in evidence, the power to make grants subject to these general provisos was assured. Still required was a satisfactory method of conveyance, and colonial assurance that no attempt would be made to evade the terms governing French rights. Greatest of all dangers was that an improperly worded deed might encourage the grantee to ignore the British govern-

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THE FRENCH SHORE PROBLEM IN NEWFOUNDLAND

ment's version of French right on the grounds that such was not recognized by the colonial authorities. The Law Officers were requested to devise a form of grant which would protect French rights without hindrance to colonial development. Whiteway further sought reconsideration of a local act, disallowed in 1878, designed to extend the franchise to treaty shore residents. He saw no reason for French objections, nor for submission of the question to them at all. It was not their business any more than if Her Majesty's government wished to enfranchise unrepresented places in England. The act covered not merely the coast in dispute, but the west and northeast interior areas, and if a man held a grant within the strand reserved to France and lived outside of it should he, asked Whiteway, be refused a vote? Surely the extreme claims of France could not justify that! Both Kimberley and Granville in the late summer signified that on this point, too, the premier should have his way. A suspending clause was to be added to the act, and a seasonable opportunity awaited to inform the French so that the position of Her Majesty's government would not be weakened "by any appearance of hesitation or misgiving as to their clear rights on the subject." An order-in-council put the act into operation, brought the west within political control of the colonial legislature, removed one more serious grievance, and prepared the way for the local politicians to make greater capital out of the western peculiarity. The choice of a seasonable opportunity did not fall to the British government, for news of the concessions reached St. John's and the ears of the French consul there, who informed his government. The French ambassador, M. Challemal Lacour, tried to visit Whiteway in London, but all he received was an intimation from someone at the premier's residence that the concessions were made in accordance with a recent agreement with France, the same story told to the consul in St. John's. To Granville, Lacour protested that no such agreement existed, but that in fact negotiations had been suspended by the British government. The concessions would further encourage fixed establishments contrary to treaty, expostulated Lacour; none the less he was informed that they could no longer be withheld. For fifty years the treaty coast had been part of a judicial district of the colony, and it was to this whole area that the franchise had been extended. Whiteway largely secured a third measure of prerogative before his departure for home. Howarth's death in March had left the shore without magisterial care except for the naval officers during the fishing season. Whiteway sought permission for the colonial authorities to make their own appointments at St. George's Bay, and to include all other communities on the shore at their discretion. Reasons for this entreaty are not hard to find, for they are consistent with the general policy of bringing the island entirely under local autonomy. Political influence on the shore required patronage which these offices would provide, while locally appointed magistrates at convenient places would by their constant presence gradually wean the residents from their agelong dependence on naval governance. This permission was granted, though the first appointments were not made until the session of 1883, after an election in which Whiteway's party was returned with a considerable majority. 2 France was now faced with these f aits accomplis, which represented a definite

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shift in the policy of the British government; a process was begun which gradually changed the "French shore" into "the coast where the French had a right to fish." Of the three concessions, that of land grants was to remain undetermined until 1904, because it was difficult to secure for France rights undefined; but sufficient advantage had been gained to make Whiteway's success a solid achievement. Pleased with the results, the new governor, Sir Henry Fitz-Hardinge Maxse, 3 showed himself favourable to the dispossession of the French. These concessions, he wrote, "will indubitably tend to a new and satisfactory era in this vexed question. . . . Patience and caution will obviate any direct collision ... [and] push the French by force of circumstances out of the colony." Patience _and caution, however, were hardly to be expected from a colony with a very large Irish element. Lady Glover, lately out of the colony, repined that "if this vexed question ... were allowed to rest quietly things would die a natural death; but no-'Newfoundland for the Newfoundlanders' is the election cry, and a bitter feeling is fostered. Moreover there are commissions and money to be got out of it, and there is no happiness for an Englishman, or a Colonist, who has not got a grievance." 4 In late November the French ambassador received a note, which had the appearance of a consolation prize, extending the illegal protectorate over Raiatea to June 30, 1882. This was done mainly because a change of government in France offered new hope for settlement and Lord Lyons had intimated that if the French flag were lowered during the crisis the effect upon Paris would be unfortunate. Asked if he had any new proposals for a modus vivendi, Lacour replied negatively. Concluding the interview, and indeed a phase of this protracted problem, Lord Granville expressed the hope that the new government, when acclimatized, would still be willing to proceed with the negotiations. Surely it was not the Frenchman's day. In many other ways 1881 was a good year for Newfoundland. Exports of dry

cod were the highest recorded, with the exception of 1874, and during the remainder of the nineteenth century they were never exceeded. Furthermore, the income from this indispensable trade in 1881 was neither equalled nor surpassed before the season of 1905-6, and fairly good results were maintained until 1885. In later years this small colony was to be burdened and eventually undone by a disproportionate national debt, which by 1901 weighed heavily at $17,378,194.67. But in 1881 it had not yet reached a million and a quarter. Railways, which had long been a common feature on the mainland, began that year with a line from St. John's to Harbour Grace. "This great work," announced Carter5 in his speech as administrator before the legislature in February 1882, "has already produced important benefits in additional employment afforded to our operatives, tradesmen, and other classes of the population and in general results flowing from a large monetary expenditure." More work was assured when during that session the legislature authorized the construction of a dry dock in St. John's, planned to be the largest in the world, to serve Anglo-American shipping, for which Whiteway earlier had pleaded in vain for an Imperial grant. None the less, not all in the island were enamoured by the achievements of Sir William, who was the object of scurrilous criticism the like of which it would be difficult to surpass in any colonial or British press. He was accused of

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forgery, election fixing, silver spoon stealing, bribery, body snatching, treason, illegal bond printing, and counterfeiting five cent pieces, each at three cents' profit! "Never since the days of Judas Iscariot was there one half so bad. He and his band of depraved robbers and forgers and coiners must be turned out." The railroad, the pet scheme of "The Ring" (Whiteway's party), was one of the objects of attack by the Telegram. "In a word, we are paying a foreign company more than enough to build a first class road, and instead of carrying out their agreement, they are merely giving us a ginger-bread line, with rolling stock long ago grown obsolete in every other civilised country in the world." This was the sort of virulence hurled at Whiteway, who earlier when on official business in Montreal had taunted the mercantile class in St. John's for their opposition to his railway legislation: "Now ubiquitous democracy has reached even Newfoundland; and to their intense surprise they find themselves powerless and their most solemn commands treated with scoffing and contempt. Evidently the day of our mercantile oligarchy has ended, and it shows their good sense to recognise this fact, however unpalatable it may be." Four years later Whiteway had reason to recall these words with chagrin. The colonial government was justifiably criticized for public misrepresentation of the new land policy obtained from London by Whiteway for the treaty shore. The Evening Mercury, a government paper founded in 1882, boasted that with the "French shore" abolished, "we can now call Newfoundland our own, and issue land and mining grants over that half of the Island from which we were before excluded." This fiction was continued by Judge Prowse who implied that Carter claimed the same victory in his speech before the legislature in February 1882. The administrator, however, was careful to mention the limitations which the Imperial concession imposed; there still existed the formidable French rights to impede industrial development in the west and to withhold from settlers a safe tenure of their property. Despite a sincere desire to allow colonial development in the west, the British government had no intention of granting to Newfoundlanders complete freedom in this matter, for they felt there would be less trouble if more attention were paid to French rights than to colonial needs. Furthermore, upon the advice of the Law Officers, they favoured a lease of treaty shore land, and even if the colony preferred the grant system, French rights must be protected by the insertion of conditions. A breach of covenants or stipulations would render the grant null and void, and without express permission from the lessor or grantor, buildings must be forbidden in any restricted area, and those permitted liable to removal upon notice, subject to compensation. Whatever may have been Whiteway's public policy on land grants in view of the important elections of October 1882, officially he accepted the Imperial limitations placed upon him. He promised that should "any Grant, License or Lease be issued during my Administration whether for occupation or mineral purposes, I shall give due attention to a prior public notification in the Gazette of the Conditions on which alone buildings or Establishments will be permitted ... on any parts of the coast referred to." The number of people who bought or read the Gazette on the treaty shore or in the colony was negligible, but by such gesture the premier was at least fulfilling the letter of acquiescence. Leases were not favoured because it was usual to grant Crown lands; further, a lack of officials on the treaty coast would compel the recipient to journey to St. John's.

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The French government disapproved entirely of land grants on "their" shore; these encouraged settlers who diminished French treaty rights. Their ambassador complained that "the Colonial authorities dispose by sale of grants of mining land on the full guarantee of peaceable working without having previously satisfied themselves that our rights are not thereby prejudiced." Carter retorted that the French charge was false, as no grants or licences to search for minerals had been issued. None the less mines were worked and Bigrel, the French senior naval officer, felt compelled in August 1882 to protest that the postmaster and others at Bay of Islands were shipping out ores by way of harbours on the treaty coast. Apparently these men held no licence, and therefore the colonial government could disclaim responsibility; but their intention to grant permission for such activities appeared in the attorney general's telegram to the parties concerned: ". . . having obtained the proper licences to search, or grants as prescribed by law, they will have perfect right to work and ship ores." It was not Bigrel's business, grumbled Newfoundland's council, to interfere with British subjects, for he was there only to protect the French fishery. Unfortunately Kimberley's recent prohibition of unauthorized buildings frustrated the colonial ministry. While France claimed a right to prevent industries, short of a new agreement, Her Majesty's government was not likely to allow the buildings requisite for exploitation of western resources. French protest was also directed against other "fixed settlements." A school at Etang built by the Church of England Rural Dean, the Reverend Joseph Curling, one of several such institutions called "school chapels," was considered a threat to France, and formed the subject of a special representation to Lord Granville. Why France chose this building for her remonstrance when the others built previously had so far provoked no comment was beyond the colonial government's understanding. They expressed surprise that this inoffensive structure "devoted to culture and civilisation" should be so disfavoured, especially when it could not possibly offer interference with the French fishery. Carter, however, was certain the French would refrain from further disapprobation when all the facts were known. Attention was simultaneously turned to the attempts of British subjects to build houses at La Scie, Canaille, and Great Islands Harbour, but the colonial government, heedless of Imperial protest, blandly replied that though as yet they had no knowledge of their exact locations they were certain the houses did not infringe upon French privileges. On the other hand, mindful of hundreds of British subjects ensconced behind French patronage on the northeast coast, Commander Davis of H.M.S. Griffin thought the protest reasonable but impracticable, and added, "it could not easily be deduce~, from the treaties that a house could be built in one part and not in another. Concurrent with protesting the activities of settlers on the treaty coast, French censure was directed against colonial officers of government. Proposed representation of the west was condemned because it implied recognition of a population; in justification of this concession to the colony, Granville referred to article 13 of the Treaty of Utrecht. The French vice-consul in St. John's (a source of much annoyance to the colony) communicated his government's objections to a petition from Bonne Bay for the appointment of judges and police officers. In this case Carter merely acknowledged the letter in compliance with the

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Imperial government's recent refusal to recognize the consulate of France in St. John's. The most emphatic remonstrance was made by the French against the new magisterial policy. The French had objected to the late Commander Howarth's appointment in 1877, but as a retired British naval officer he provoked less displeasure than the new magistrates who were local men chosen by the colonial government, and unlikely to extend the same sympathy to French susceptibilities. When three of these appointments were made, at St. George's Bay, St. Anthony, and La Scie, Granville approved the locations but wanted to know something of the new incumbents. Assurance was given that they were "persons of good intelligence, judgment and discretion," and one Daniel Duggan who had the unusual advantage of being able to speak French was respected by the French and British fishermen at La Scie. The other two were one-time members of the colonial legislature, and the places they had represented were not without significance in relation to the locality of their new duties. From representing Placentia and St. Mary's, a baiting area on the south coast, Mr. Michael Dwyer was despatched to watch over the interests of St. George's Bay, the best area for bait on the treaty coast; and Mr. James Saint, late representative for Bonavista from which district came a very large number of the nomadic schooners which plagued the French each summer, was sent to St. Anthony on the northeast, a place much frequented by the same schoonermen. In these neglected and troubled areas, the colonial government for the future had their own observers and agents with a point of view distinct from either the naval officers of France or the mother country. Towards the middle of March 1882, the French ambassador proposed to Lord Granville a renewal of the fishery negotiations. The French government, he said, were now willing to consider the question in its entirety but as they had not broken off the negotiations of 1881 the ambassador considered the next move must come from London. Granville did nothing immediately, but in April he sought Kimberley's opinion upon a French request for the extension of the provisional protectorate over Raiatea, which France had argued was made necessary by suspension of the talks. It was decided to prolong the temporary agreement over the protectorate until September 30, 1882, a sign of the British government's continued willingness to pursue conversations on the related subjects of Newfoundland and Raiatea. Since no progress had been made during the spring, and since he was afraid that a failure to settle the fishery question would postpone a permanent agreement over the Pacific issue and thus in practice give France control in the Society Islands, Kimberley in July suggested that if the French were willing to extend the area of coast from which their objections to colonial development would be withdrawn, and pledge not to extend their protectorate over the Hervey Islands, the British government would remove all objections to French control about Tahiti. Lord Granville was disappointed. He had hoped for proposals towards a general settlement first; if they were unacceptable then resort could be made to this narrower solution. As a basis for a modus vivendi he suggested the appointment of a commission to determine places at which public buildings such as piers, houses, and factories needed for industrial development could be erected without detriment to French rights, the preparation of rules for the sea fishery,

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to be enforced by a joint commission, and a restriction upon French citizens to fish in the rivers only where the water was salt and according to local regulations. In return the French government could appoint guardians of their property during the winter and enjoy the privilege of unrestricted bait purchase on the south coast in common with British fishermen. On the Pacific side of the settlement Britain would abrogate the declaration of 1847 on Raiatea if France abandoned her pretensions to the Hervey Islands and allowed the appointment of a British consul at St. Pierre. Any such proposals, however, "might be prefaced by a brief explanation of the strict rights of the colony as claimed by Her Majesty's government under the Treaty." This view of the "strict rights" of Newfoundland required a modification of those claimed for it by the governor and those asserted by France. Granville in March had taken exception to certain remarks made by the governor in December 1881, that "every Newfoundlander, as such, has the right to fish on all Coasts of Newfoundland and Labrador without restriction, only carefully respecting the concurrent right of France." The governor, Granville had urged, should be advised that while Her Majesty's government do not admit an exclusive right as claimed by France "British fishermen are nevertheless prohibited by Treaty engagements 'from interrupting in any manner by their competition' the fishing operations of the French." When Kimberley conveyed this doctrine to the governor opportunity was taken to impress upon the colonial government their duty to inform local fishermen on the legal rights of Frenchmen. The usual promise was returned, but fishermen on the treaty coast remained the most ignorant about the privileges due to France. These strict rights were also epitomized in a note to the French ambassador who of late had acquired the habit of referring to the treaty coast in official correspondence either as "the French shore," or the "littoral frani;ais de Terre-Neuve." This was done, thought Granville, "to support pretensions to something more than mere 'servitude' granted by Treaty to the French during the fishing Season." M. Tissot was informed that the declaration of 1783 did not exclude British fishermen from the shore for it stated that the methods of the fishery "shall not be deviated from by either party," and by reason of Her Majesty's sovereignty over the island a right belonged to British subjects to build permanent establishments other than those for the sedentary fishery. 6 So far this was as near as any British minister had come to colonial dogma. Coincident with acrimonious incidents on the treaty coast between French and colonial fishermen, which gave rise to the customary voluminous exchanges between St. John's, London, and Paris, the two home governments proceeded with arrangements for negotiations so obviously needed. Kimberley was pessimistic about their probable result, a view which Lord Lyons shared, but since the French pressed for a resumption, he felt the opportunity ought to be taken. "Experience shows," he wrote, "that the simple fact of a negotiation being in progress is a help to the [French government] as regards the French public. In fact it tends to enable them to act moderately in respect to practical difficulties without coming into conflict with public opinion." Lord Lyons preferred not to present Granville's detailed proposals to the French government lest they thought the acceptance of them would involve "an admission of some of the principles which they dispute." It would be far wiser, thought Lyons, to submit only a

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preamble of the draft as a basis for fresh conversations, and defer the details for gradual verbal presentation by the British commissioners. The depth of the ambassador's despondency over Newfoundland is shown in his preference for "lingering" negotiations, presumably to keep the French in a moderate mood. Granville and Kimberley accepted his method of approach, but Granville did not share his humour. Lyons was instructed to tell the French government that their interpretations of the treaties were not shared in London, but rather than waste time over useless argument a modus vivendi ought to be sought "without prejudice to the rights claimed by either nation." Two points were fundamental to the negotiations: to secure for France the fullest enjoyment of her rights and to remove all possible impediments from the colony's industrial enterprise on the treaty coast and its hinterland. On November 8, 1882, Lord Lyons handed to M. Duclerc a note verbale based upon his instructions, whereupon he received an intimation that the French government were willing to negotiate, but first the note must be considered. Granville's mode of procedure was not accepted until the following February, and only then if the provisional agreement over Raiatea were extended, and it was distinctly understood that its terms did not imply "any assimilation between the secular treaty rights of the French and the existing de facto state of things against which France has always protested." When the British government had signified their willingness to prolong the Pacific agreement until September 30, 1883, the French ambassador either by design or in good faith had placed upon this concession the meaning that the Raiatea protectorate and the fishery negotiations were now automatically concurrent. With visions of prolonged conferences, endless despatches, and calls for multiple modifications while France consolidated herself in the islands "sous le vent de Tahiti," Granville hastily returned, "the French Government will recognize that in agreeing to the extension of the status quo at Raiatea for a further period of six months Her Majesty's Government have been actuated by a sincere desire to arrive at some speedy and satisfactory settlement of the Newfoundland question." There was no reason why the business could not be concluded within that time, and Granville would not stir from this position despite further French insistence. Even Lord Derby's suggestion that the provisional agreement be extended to the end of 1884, to give ample time for the negotiations, was refused. What, Granville asked, would be the result if the talks were to break down immediately? Britain would have to wait eighteen months until the Raiatea concession ended. An extension by short periods was the best guarantee for a speedy conclusion of a fishery agreement and retardment of unwelcome French policies in Raiatea. A few years before, a new form of the old problems, which later had an alarming sequel, made its appearance on the treaty coast. J. D. Rogers, in his customarily descriptive manner wrote, "there crawled across the political arena 'a large, marine, stalk-eyed, ten-footed, long-tailed crustacean of the genus Homarus, much used for food, and of a brilliant red when boiled'. The ugly ridiculous lobster thrust its claws into the tangle and all was confusion. Both Frenchmen and Englishmen, inspired by the lobster, began to go crooked." 7 Prowse has referred to the entire affair as "a storm in a teapot." What he probably meant was a lobster pot. In relation to the whole of Anglo-Newfoundland history he

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was no doubt correct, but to those involved in the events such a description would have been dubbed at least an understatement. The strain placed upon the imperial connection with the ancient colony was severe, and in some respects unprecedented. A brief word seems necessary on the innocent cause of these troubles-the American lobster. This particular marine creature is found only on the eastern seaboard of North America generally between Henley Harbour, about fifteen miles north of the Strait of Belle Isle, and the coast of North Carolina. Its greatest numbers are concentrated along the shore of Maine, the maritime provinces of continental Canada, and on the western and southern shores of Newfoundland. The prevailing summer winds on the south and west coasts of Newfoundland drive the surface waters carrying the young lobsters in shore and allow the creatures to settle on a suitable bottom in favourable temperatures. On the northeast they are found in smaller quantities, and on the east, among sheltered islands, they are taken in moderate numbers. The same winds which blow the lobster in on the south and west drive them out to deeper water on the east and northeast. As the south and east coasts were not included in the treaty shore, and as the northeast was almost entirely a cod area, with one very important exception, the lobster controversy of these years concerned only the west coast chiefly between St. George's and Sandy bays. Lobster canning began in the United States about 1840, but between 1870 and 1880 American supplies showed signs of serious depletion and the industry moved north to areas scarcely touched. Before the beginning of commercial exploitation, lobster was despised in Canada and Newfoundland. It was sometimes used for manure; if eaten, it was eaten secretly, the chief consumers otherwise being the dogfish, cod, and skate. Small amounts of lobster had been canned in Newfoundland by Nova Scotians as early as 1856, when at the end of the salmon season those who had been canning their catch from the Humber River went to the north shores of Bay of Islands and experimented with lobster canning. It was not until 1874 that the industry really established itself, however, and became a fairly profitable enterprise, with startling effects upon the history of that coast and the colony. In 1873 a Mr. Romkey of Nova Scotia established at St. Barbe's Bay the first permanent factory, which he sold in 1881 as a sound concern to the partners Forest and Shearer, also Nova Scotians. This same company later purchased a factory at Brig Bay (built in 1880) with a daily capacity of 10,000 lobsters, and in 1884 they established a third at Port Saunders. Their success attracted others from Nova Scotia and Prince Edward Island who erected factories at Woody Point, Bonne Bay, and Bay of Islands. St. John's interest began with the joint ownership, by a Mr. Baird and a Prince Edward Islander, of a factory at Port au Port. Local inhabitants followed suit, and by 1887 there were sixteen factories, with a further ten in operation at the end of the 1888 season, employing one hundred maritimers and some one thousand local residents. Whether large or small the factories were constructed on the same principle, with a boiling and bathing room, and one for packing. Lobsters were taken in three ways, buoyed cages, hand traps, and "claw nipping" in shallow water. Fishermen usually contracted with a particular owner and brought their catch to the factory pier where they were paid about 70 to 80 cents per 100, but as the industry became crowded

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the rates at times dropped to 50 cents. From small beginnings this fishery became a mainstay of the coast, and certain physical advantages attracted the settler, to the detriment of the cod fishery. Traps could be set comparatively near the fisherman's home to which he could return each night, and the industry gave employment in seasons when other fisheries were closed. Profits were not large, perhaps from one to two dollars a case of four dozen one-pound cans, which in 1888 sold at $6.25. The original factory outlay was from two to three thousand dollars, and daily costs from six to eight dollars. It was a business in which the ordinary poor settler could not engage properly except as a fisherman or factory labourer, but it was one which Newfoundland found a valuable addition to her small economy, and for that reason she was prepared to defy the British and French governments' attempts to restrict the industry. French participation began in earnest when in 1883 Guibert et Fils of St. Pierre and St. Malo built a small boiling shed at Port-au-Choix. Other projects were established at St. Barbe and Brig Bay in the manner of the English factories. At first this was but a side line to the cod fishery in which the French remained principally interested. The season's catch was taken to France with other products, cod, salmon, and herring; but in 1884 a Captain Dameron built a more permanent factory at Old Port-au-Choix. His shed, instead of being canvased like temporary fishing establishments, had a tin roof, and the French senior officer ordered the roof to be moved to forestall any charge of treaty violation. Undaunted, Dameron took his roof to Barred Bay on St. John's Island and erected another factory under it, and next season brought out mortar and bricks and built a store house. He employed his own crew, some local residents, and a few "foreign girls." By 1888 this was the only French factory on the west coast seriously engaged in the lobster fishery; in the 1888 season about 1,600 cases were packed, with a probable profit of £400. In the same year British output was 27,880 cases and the French about 2,500; the industry was vital to the colony, therefore. To France, except for a few individuals, it was monetarily unimportant. Yet as a matter of principle it became invaluable. Protests against colonial lobster factories were made as early as . 1879 to the governor by the French vice-consul and by French naval officers in 1880. Aware that the subject would likely be raised diplomatically, the colonial government stated that the factories were not a violation of the treaties and in no way interfered with the French. This opened a brief wrangle between Kimberley and Granville; the former contended that lobster factories were illegal, the latter that they were not, but Granville conceded the Colonial Office view when the Law Officers' reports of March 24, 1859, against all "bona fide fixed establishments" were quoted, and when he was told that British subjects were also engaged in a lobster fishery. This made it obvious to him that the factories were permanent fishing establishments and contrary to the declaration of 1783. It was the Romkey factory at St. Barbe to which the French objected; Kimberley informed Governor Glover that the owner should be notified of its illegality and likelihood of closure at British request. At this time no warranted land tenure existed on the treaty coast within half a mile of high-water mark, and Romkey's claim to his site was based only on the consent of the Newfoundland government. Knowledge of this uncertain possession may have influenced the owner's sale to Forest and Shearer. No definite steps were taken to remove

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this and other establishments operating at Gravels, Piccadilly, and Port au Port, for French officers had to renew their objections in 1881, claiming that factories were fixed establishments and that lobster traps hindered French seining. The Colonial Office and the Foreign Office had, between themselves, already admitted the first charge; the second was in certain instances incontestable; and French naval protestations were endorsed by communications from the French embassy. Here the matter stood when negotiations between France and Britain over the treaty shore were re-opened in 1883. The luck of Paris was tried again for these talks. Mr. Clare Ford, minister at Athens, who was reputed to be fully acquainted with the fishery question and whose services at the Halifax Fisheries Commission had been valuable, was sent with Mr. G. B. Pennell of the Colonial Office to assist Lord Lyons, who directed the British case. In early September Governor Fitz-Maxse, who had been ill during most of his tenure of office, died in St. John's. In his stead Sir John Glover 8 was again appointed governor, partly because he was available, but especially because of his previous acquaintance with Newfoundland's problems. Before his departure to the colony he was sent to Paris in an advisory capacity. As their minister plenipotentiary, the French appointed M. Jagerschmidt, a former director of commercial affairs at the French Foreign Office, and to assist him Captain Bigrel, commander of the French Newfoundland squadron. This gentleman was the only commissioner with practical experience of the treaty coast, an advantage which was apparent in the subsequent arrangements. No Newfoundlander was invited. Official intimation of the new commission was conveyed to the colonial government in a despatch dated December 18, but, before its arrival, there had occurred events which considerably influenced the result of their deliberations. Religious differences had long intruded upon all phases of colonial life and had previously caused social disturbances, but' on December 26, 1883, riots in Harbour Grace again tore the people into bitter Protestant and Catholic factions. The spirit of William III still lived on the north shore of Conception Bay, to the satisfaction of the many Orange lodges and the disgust of Irish Catholics whose long memories deplored the Dutch king and his cult. On St. Stephen's Day the Orangemen held their usual procession through Harbour Grace, when in fulfilment of a threat which the authorities had ignored, the Catholics attacked the column with firearms. A skirmish ensued and men were killed or maimed. Soon the whole shore was roused, and officials were long unable to control the punitive passions of these rival religions. Prowse, who wrote very cautiously about the incident twelve years later, declared it to be most regrettable because of "the deplorable loss of life, but also for the dire feelings of revenge and hatred it called forth .... It upset the parties in the Assembly and the trials, with their exhibition of perjuries and prejudice were by no means edifying. The whole trouble was begotten of fanaticism, and it ended in a complete fiasco." 9 The riots are important here because of their effect upon the government and the joint commission at work in Paris. It was in this atmosphere that the Whiteway ministry studied the few communications concerning the conference in Paris which Her Majesty's government deemed prudent to send. With Catholic and Protestant antipathies within its ranks, the administration's unity was in jeopardy after December 26. This fact, and the failure to summon a colonial representative,

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were to be detrimental to the success of what so far seemed the most promising commission. If the British government had found it possible, it is evident they would have concluded an agreement without any reference to the colony. In March 1884 the Law Officers gave their opinion, in reply to a request of the previous month, that in certain specified contingencies an act of the colonial legislature was required to carry out the necessary regulations of a proposed agreement. More explicit in his next communication, the colonial secretary told the Law Officers that he sought a modus vivendi which would not require legislation; an arrangement which would not compromise the treaty interpretations of either side. It was proposed to give French officers limited authority to warn British subjects fishing illegally on the treaty shore, and in case of persistance, to detain them forcibly until the arrival of British authorities. This, the Law Officers pronounced, was beyond the constitutional powers of the Crown without parliamentary sanction; captains of foreign vessels could not be authorized to use force or exercise judicial powers in British territorial waters. A draft of the proposed arrangement was sent to the Law Officers who reported that certain articles to become effective would require colonial consent. 10 There appeared no way to avoid Newfoundland's intervention, or if preferred, interference. As Lord Granville had advised the negotiations continued speedily. Lyons made every effort to preserve the French disposition to negotiate, and an enquiry demanded by the colonial government into alleged illegal acts of Bigrel during 1883 was postponed. On April 26, 1884, the first agreement was reached, which attested to the determination of both governments and the ability of the commissioners. All that remained was the colony's consent, and this was not left to the persuasion of cold despatches. To add weight of personality and argument, Ford and Pennell went to St. John's accompanied by Glover, whom Carter, engrossed in the riot trials, had urgently summoned to Newfoundland. The commissioners carried a lengthy despatch, designed to induce the co-operation of the Whiteway ministry, in which Derby, the new colonial secretary, signified that the agreement was still subject to the approval of the British and French governments, and that Imperial assent would be withheld until the colonial government had carefully studied its provisions. After a review of previous negotiations, the result of the commission was carefully explained: France had conceded a concurrent right, and she now required only that her citizens should be unmolested whilst fishing; the river fishery was henceforth to be in colonial hands except where the water was salt, and barring rivers, so destructive of spawning salmon, was forbidden. Even the complicated problem of fixed establishments, ,wrote Derby, had been contemplated to apportion the amount of redress due to those whose buildings would be condemned, but the new arrangement left all existing fishery establishments undisturbed; and though new fixed fishery establishments were forbidden, upon specified areas of the shore industrial buildings would be permitted. Though there were concessions to France, here, Derby emphasized, Her Majesty's government would recognize "little more" than the de facto state of the shore; but the "little more" was precisely that against which the colony had repeatedly complained. With great tact Derby tried to make palatable the conferring of judicial powers upon French officers by referring to the North Sea

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Fisheries Convention, 1881, wherein each signatory was invested with similar powers over foreign nationals. This convention applied to international waters while the treaty coast fisheries were territorial, but, he wrote, "the peculiar fisheries rights ... in Newfoundland invest those waters during the months of the year when fishing is carried on in them both by English and French fishermen with a character somewhat analogous to that of a common sea for the purposes of the fishery." France feared that a surrender of the exclusive claim would rob her eventually of all the best fishing grounds, as had already happened at St. George's Bay and Conche; therefore, as a quid pro quo, "in cases where none of Her Majesty's cruizers may actually be present, such an amount of supervision as may insure an uninterrupted enjoyment of the fisheries by their countrymen in these waters" must necessarily be granted to French officers. Derby promised that this alien authority would be limited by the constant presence of two of Her Majesty's cruisers on the northern parts of the coast, where the largest number of Frenchmen fished. Ford and Pennell were present to answer questions during the several meetings when this despatch and the arrangement set forth were studied by the colonial government. Their persuasion was probably effective, because the criticisms reported to Derby were relatively mild, though important to the colony. It was regretted that the British government had not adhered more closely to the legislature's resolutions of April 23, 1874, which called for greater recognition of the colonial viewpoint. Yet the withdrawal of the untenable French claim to an exclusive right was appreciated as a solid achievement. Strangely enough the council accepted the endowment of French officers with judicial powers, but they hoped that to obviate the adjudication of all complaints by these officers, British cruisers would exercise a vigilant watch to guarantee that British subjects would also enjoy their rights to the fullest extent: "In a word, the Council feel assured that the whole proposition will be carried out in the spirit of equity and mutual consideration essential to its success." The council requested two important modifications to ensure the legislature's favourable consideration of the arrangement. Erroneous estimates had been made of regions open for settlement and industry. Between Bonne Bay on the west and Cats Arm in White Bay on the northeast coast, large areas could not be settled because France had retained nearly all the worth-while harbours. Much of the coast reserved to the colony dropped precipitously into the sea, a geographical fact which precluded the sort of settlement the council envisaged. Further, near some of the French harbours were valuable mineral deposits, inaccessible except by way of those harbours. The colony should therefore be permitted to erect the buildings and wharves necessary for storage and ship]'.)ing. The council were prepared to allow an Anglo-French naval commission to determine sites which would least hinder French fishermen. It was remarked also that if France feared dispossession through the steady growth of a British population, neither did Newfoundland wish to encourage a French citizenry on her shores, and therefore article 17 must be revised to limit the number of guardians in each harbour to one and his family, instead of one for each establishment in a harbour. Though criticisms were moderate, the council refused to be rushed and declined to call a special meeting of the legislature on the grounds that such was not convenient to the summer ways of the colony. This was true,

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but evidently the council did not consider the arrangement the only way of salvation. On the basis of the council's criticisms and the commissioners' report, only those bitterly prejudiced against Britain's policy in Newfoundland could condemn Lord Derby's assumption that when the modifications were secured colonial consent would follow. His confidence of success appeared in new instructions to naval officers, devised and approved by the Admiralty before the projected arrangement was transmitted to the colony. Naval officers were ordered to act "in the spirit of the new arrangement, or in accordance with its provisions so far as it may be in their power to do so, taking special care that any complaint made to them on the part of the officers in command of the French cruizers be immediately investigated and the necessary action taken." The Newfoundland government were not informed of these instructions; therefore it does not occasion surprise to learn of resentment in the colony when their nature was suspected. A charge of indiscretion, or failure to understand the colonial mind, can be brought against the British government for this policy. Without the application of its articles, it would be difficult, if not impossible, to effect "the spirit of the agreement," and to the colony this appeared to put into operation policies unsanctioned by prerequisite legislation. At this stage the negotiations ran into difficulties over the provisional protectorate in Raiatea. It seems apparent that France was concerned more with advances in the Society Islands than with retreats in the Newfoundland coastal fisheries. Since the two questions were joined in 1879 great prominence had been given to those Pacific islands located between Panama and Australia. Two in particular were now introduced into the discussions, Bora-Bora in the Society group, and Rapa, a volcanic island six hundred miles to the south and within the Australs, both of which had excellent harbours. In 1883 the agent general in New Zealand indicated to Her Majesty's government the lack of a haven for British ships in a direct line with the proposed Panama Canal and the Australian colonies. Rapa was mentioned as the most suitable location, but inconveniently this belonged to France. Similarly the Admiralty had suggested to the Foreign Office that France be given her protectorate over Raiatea in return for Rapa; but they were informed that this concession was already guaranteed as a quid pro quo. In February 1884 the Colonial Office enquired of the Admiralty whether there were any islands in the western Pacific besides Bora-Bora and Rapa which might prove as valuable or of nearly equal value for purposes of steam communication when the canal was completed. There was none, but one from the Galapagos group would be useful to the navy as a depot for coals and stores. A move in that direction was discouraged; the United States would resent British acquisition of any island so adjacent to the Americas. Thereupon it was decided to persuade the French to cede a port from either the Society or Austral Islands, with specific mention of Bora-Bora and Rapa. About this time the French foreign minister, M. Jules Ferry, asked whether in return for his government's conciliatory attitude in the April arrangement, Her Majesty's government would proceed as promised and abrogate the declaration of 1847. No direct answer was given, except that, though the agreement was signed, its validity was still conditional upon Her Majesty's approval and the

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consent of the Newfoundland legislature. Following an exchange of views between the Admiralty, the Colonial Office, and the Foreign Office, it was decided to ask the French government to cede Rapa in return for British withdrawal of all claim upon the Society Islands. In other words, the abrogation of the 1847 agreement was to include not merely Raiatea but the whole group, if Rapa and the Newfoundland modifications were conceded. This was a most awkward decision, since France agreed to reassemble the commission at the end of the year, and the proposed colonial modifications, she warned, would be difficult to meet without equivalents. The negotiations were not advanced by the request for modifications to the Newfoundland agreement and the cession of Rapa, in ex