IT is perhaps only natural that Canada should sometimes chafe at the limitations imposed upon her by the Constitution. Of these limitations perhaps the most obvious and the most irksome to many Canadians is that which prevents the representatives of the people from negotiating directly with foreign powers. The Canadian says, and with some reason, that he is able to manage his own affairs, and he goes a step further and doubts if his diplomatic affairs have always been well handled by the English statesmen to whom in the past they were entrusted.
There are two views diametrically opposed to one another on this subject, but since the one we have mentioned is held by a very large number of Canadians it may be permissible to state, if not to endorse the attitude generally adopted in Canada as to some of the occasions on which England has taken in hand the affairs of the Dominion.
In most cases the disputes which have arisen have been with Canada’s continental neighbour, and the first of these began when the thirteen colonies separated themselves from the Mother Country, and the Treaty of Independence was in preparation.
In March, 1782, on the fall of Lord North’s ministry, the Rockingham administration came into power. Its policy was the ending of the war in America and the recognition of the revolting colonies. Shortly before forming the new government, Lord Shelburne intimated to Dr. Franklin, who was then diplomatic representative of the Congress of the United States in Paris, that he was anxious to secure a satisfactory settlement, and on Dr. Franklin’s replying in friendly fashion, he dispatched, without informing his colleagues, a Mr. Richard Oswald to Paris with instructions to open informal negotiations for peace.
Before entering upon a resume of the merits of the case let us glance at the map of North America as it was then. Bounded on the east by Nova Scotia we see the United States as they then werea narrow strip of seaboard bounded on the west by the Alleghany Mountains. On the Western side of the North American Continent were the Spanish possessions which ran eastward as far as the Mississippi. This left a wedge some 400 miles wide driven down from the north between the Spanish possessions and the United States of America.
Now Mr. Oswald, though apparently a most amiable gentleman, was entirely a novice in the diplomatic world. He had been a successful Scottish merchant of the City of London, but he was the last person in the world to match such able negotiators as Franklin, John Adams and Jay. To assist him was sent later an even less practised diplomatist in the person of a Mr. Vaughan. The American case was most ably prepared, and each of the negotiators made himself specially responsible for particular details.
Dr. Franklin’s project was no less than the cession of Nova Scotia and Canada to the United States. Mr. Jay desired the extension of the United States boundaries westward over the Alleghany Mountains to the Mississippi, so sweeping away the British Canadian territory which lay between the United States and the Spanish possessions. Mr. Adams represented the desires of the New Englanders for the Canadian fisheries ; and to meet these three skilled diplomatists went Mr. Oswald, whose chief recommendation was that he was introduced by Lord Shelburne to Dr. Franklin as ” a pacifical man, conversant in those negotiations which are most interesting to mankind.”
At the outset Dr. Franklin handed to him a confidential memorandum which contained the proposition that Great Britain should voluntarily cede the whole of Nova Scotia and Canada to the United States.
Had this memorandum been made public it would indeed have caused a storm, but it was not. On his return he reported to Lord Shelburne the result of his conversation, and handed to him Dr. Franklin’s notes which later became known as the ” Canadian paper.”
It is certain that Lord Shelburne, though he made no comment at the time, disapproved entirely of the proposition ; but Mr. Oswald assumed his silence to be consent. At any rate, that appears to be the view conveyed to Dr. Franklin, who mentions in his diary that on his return to Paris Mr. Oswald reported his opinion that the affair of Canada would be settled to his entire satisfaction ” towards the end of the treaty.” The death of Lord Rockingham in England made Lord Shelburne prime minister, and this in turn led to the resignation of Mr. Fox. Thus Lord Shelburne was able to send his ” pacifical man ” as plenipotentiary, authorising him to treat with the commissioners of the United States for the settlement of the questions at issue.
France and Spain were both hostile to the extension of the United States to the Mississippi, and to the claims regarding the Canadian fisheries, and a confidential mission was sent to Lord Shelburne to amplify the French views. In April, 1782, the naval victory of Lord Rodney over the French fleet crippled the sea power of France and Spain, so eliminating one factor which had to be taken into consideration by the negotiators. British diplomacy was also assisted by a modified ultimatum agreed upon by the American Congress. The modified instructions said, ” Although it is of the utmost importance to the peace and commerce of the United States that Canada and Nova Scotia should be ceded, and more particularly that the equal common right of the United States to the fisheries should be guaranteed to them, yet -a desire to terminate the war has induced us not to make the acquisition of these objects the ultimatum of the present occasion.”
The United States Commissioners, therefore, were quite aware before Mr. Oswald appeared that Congress had modified its instructions, but they did not exchange this knowledge for the confidences which he so readily poured into their ears.
In the United States the outlook was extremely black, and there was no money in the treasury. The public credit was at its lowest ebb. Everything was in favour of a masterful policy on the part of the British, yet Britain had no man to pursue it. Mr. Oswald was supreme over Britain’s greatest territorial possession.
Today it is amazing that such men should have been allowed such powers, the more so as we find Lord Shelburne writing to Mr. Oswald a month before the Treaty was signed, saying, ” I should act with great insincerity if I did not convey to you that I find it difficult to enter into the policy of all that you recommend upon the subject both of the fishery and of the boundaries.” The negotiations were rendered even more favourable to the United States later on when Mr. Jay, whose particular business it was to gain control of the fisheries, persuaded Mr. Vaughan to return to England with the object of impressing Lord Shelburne with the strength of the American sentiment on this point. So disastrously successful was he that Lord Shelburne immediately consented to agree that the boundaries of Canada should be confined to the strip of territory along the St. Lawrence and Ottawa Rivers. Eventually a provisional Treaty was drawn up, to which Mr. Oswald agreed, and then sent it to the Shelburne ministry.
Amongst the provisions were the following :
1. Independence, and a settlement of the boundaries between the thirteen states and the King’s colonies.
2. The cession to the thirteen states of that part of Canada which was added to it by the Quebec Act of 1774. These were considered as indispensable.
Furthermore, Mr. Oswald reported that Dr. Franklin demanded half a million or more as indemnification to the sufferers of the United States for the destruction of their towns and property, and some sort of acknowledgment in an Act of Parliament that Britain sympathised with these misfortunes.
3. American ships to be on the same footing as English ships in Great Britain.
4. The surrender to Congress of every part of the remainder of Canada, after the said reduction of territory to the limits preceding 1774. Great Britain to have full freedom of fishing and of imports and exports in general, free of duty.
It was quite evident from Mr. Oswald’s report that Dr. Franklin was putting on the screw, particularly in connection with the indemnity question. At first he had been content to reserve certain of the Canadian lands, and his proposal was that the land should be sold and the money applied for the relief of the sufferers on both sides. Later on, however, this demand had grown to one that ” these backlands of Canada should be given up, and that a further sum of money, half a million or more, should be granted by Great Britain to Americans who had suffered from the war.”
This final exhibition of incapacity seems to have aroused even the sluggards of the English Cabinet. It was proposed that Oswald should be recalled, since they declared he was merely an additional negotiator on the American side. Lords Shelburne and Townshend, however, refused.
Mr. Jay, with Oswald’s consent, drafted the Treaty which was forwarded to London for submission to His Majesty.
It provided for :
1. The Independence of the thirteen united states.
2. The cession of nearly the whole of Canada, the boundary being from the Atlantic, on similar lines to those described in the final Treaty, as far as latitude 45° on the St. Lawrence. The line then crossed the river and ran westward to the south point of Lake Nipissing, thence directly to the source of the Mississippi.
3. The right of the people of the United States to take fish of every kind in the British Canadian waters where the inhabitants of both countries had been accustomed to fish previously.
4. Free navigation of the Mississippi without, however, means of exit or entrance.
The claims of the British Commissioners with regard to the payment of American debts to British merchants, compensation to the loyalists, reversal of compensation, etc., were refused by the American negotiators and forthwith abandoned by the British Commissioners. The case of the British loyalists was particularly hard. They had been treated with the greatest severity, and in many cases with savage cruelty, by the American revolutionists for no crime except loyalty to Great Britain and a refusal to fight against her.
So, born of prejudice and fostered in ignorance, the Treaty made its début. When the terms were made known it is not too much to say that the whole of Europe was staggered by the generosity of the British concessions. Not content with losing thirteen colonies, Great Britain had given, quite gratuitously and unnecessarily, a piece of territory of about 280,000 square miles, endowing the United States with territories sufficient for the following states :Ohio (1803), Indiana (1816), Illinois (1818), Michigan (1837), Wisconsin (1843), and Minnesota (1858).
It was at this time that the King wrote weakly to Lord Shelburne, ” I am too much agitated with the fear of sacrificing the interests of my country . . . that I am unable to add anything on that subject, but most frequent prayers to Heaven to guide me so to act, that posterity may not lay the downfall of this once respectable Empire at my door ; and that if ruin should attend the measures that may be adopted I may not long survive them.”
Lord Shelburne evidently felt that matters had gone too far, and he warned Mr. Oswald that ” the nation would rise to do itself justice and to recover its wounded honour,” and as a sop to the national honour he des-patched Mr., afterwards Sir Henry, Strachey to Paris with instructions to insist on the compensation of the loyalists, the retention by Great Britain of the Indian territory, and of the original boundaries of Canada within the Ohio and the Mississippi. He was to obtain a boundary for Nova Scotia more favourable to Canada, and he was to refuse the cession of the Canadian fisheries.
Had Mr. Strachey been sent to the scene of Conference at an earlier date it is evident that the Treaty would have had a very different complexion. Coming late, and single-handed, as he was, he fought step by step to save something from the wreck of British hopes. If only he had had more time ! If only he had been able to dis-cover that Congress had withdrawn her ultimatum as to the fisheries and the Mississippi boundaries ! We know now that M. de Vergennes would have used his influence with the American representatives to induce them to reduce their demands. We know now that their demands were no more than the bluff of practised poker players. But Mr. Strachey held no cards. Messrs. Oswald and Vaughan had presented to the American negotiators all the knowledge they required of the feeling of the British Cabinet. All he could do was to retain the portion of the Canadian territory between Mr. Oswald’s line and the lakes. He failed in his attempt in defining the boundaries of Nova Scotia, but he was able to recover the territory between the St. John and the St. Croix.
What the King thought we know. What Lord Townshend said was, “Why could not some man from Canada well acquainted with the country have been thought of for the business which Mr. Oswald was sent to negotiate ? Dr. Franklin, Mr. Jay, Mr. Lawrence, and Mr. Adams have been too much for him.” America was naturally delighted. The bargain, if bargain it can be called, had been struck entirely on an American basis. The Americans had shown an astute diplomacy, and England had given practically everything.
What Mr. Strachey thought may be seen from a letter to a colleague, ” The Treaty signed and sealed is now sent. I shall set off to-morrow hoping to arrive on Wednesday, if I am alive. God forbid that I should ever have hand in such another peace.”
During the years that followed the Treaty the diplomatic correspondence amongst the State papers shows how bitter was the feeling between the United States and Great Britain. In the early years of the nineteenth century, when Great Britain was fighting for her life and for the peace of Europe, these strained relations were increased by Great Britain’s retaliatory policy, forced upon her by Napoleon’s Berlin decree which prohibited commerce to ports closed to British trade. Close upon this followed the war of 1812, which has been described elsewhere in this book. In this war the United States suffered far more severely than Canada. British forces captured and held part of Maine to the Penobscot River, including the disputed territory of the Maine boundary. Nearly all Michigan, including what is now Chicago, to the Prairie de Chien had been won back ; and there was not an inch of Canadian territory in American hands. Surely this, if ever, was the moment to settle the disputed Maine and Michigan boundaries ? The United States wanted peace. Napoleon was safe in Elba ; and Great Britain was :free for the moment from all continental troubles. Yet, when the terms of the Treaty of Ghent (1814) were made known, it was seen that Great Britain had given back to the United States all the captured territory, yet not a word was said about the disputed boundaries.
The fact of there being a state of war between the two countries had abrogated the fishery rights conceded to the United States, as well as the rights of navigation (such as they were) of the Mississippi River conceded to Great Britain by the Treaty of :1782-3. Yet, by the Treaty of 1818, Great Britain again gave fishery privileges to the United States on certain coasts of Newfoundland, Labrador and Canada, and although the United States, under the Treaty, renounced the liberty to fish within three miles of any of the coasts, etc., not included in the schedule, there were constant squabbles as to the interpretation of the Treaty, which introduced much bitterness into the diplomatic dealings between the United States and Great Britain.
The next important arrangement between the United States and Great Britain was the Reciprocity Treaty of 1854, which was to continue in force for ten years or longer until terminated by a year’s notice on either side. By it the United States were allowed to fish in the Canadian in-shore fisheries ; Canadians obtained the liberty of fishing in the American in-shore fisheries north of latitude 36 0: the United States were allowed the navigation of the River St. Lawrence, and Canada to navigate Lake Michigan. Reciprocity in free importation and free exportation of certain natural produce was also agreed upon, and this Treaty continued in force to the satisfaction of both sides until, as we have told in the chapter on Confederation, the United States put an end to it in 1866.
The Washington Treaty of 1871, which was made in the settlement of the Alabama claims, conceded the Canadian fishery question to the United States on the basis of compensation for ten years’ purchase. The United States were allowed free navigation of the St. Lawrence up to latitude 45° for ever, while free navigation of Lake Michigan was conceded by the United States to Canada for ten years only. By this Treaty also Great Britain was given the right, which she already possessed under the Russian Treaty of 1825, of free navigation of the Yukon, Porcupine and Stickeen Rivers of Alaska. By the same Treaty it was agreed that each nation should, for ten years, be allowed the free importation of salt-water fish and fish oil, with freedom to use their respective canalsin fact, a reciprocal carrying-trade arrangement.
When the Treaty was nearly completed it was suggested that the time had come for adjusting the claims of Canada against the United States for the Fenian raids in Canada. But the United States refused to consider the matter, and added ” that the claims did not commend themselves to their favour.” The British Commissioners submitted, and said politely that under these circumstances they would not urge the inclusion of this matter in the Treaty, and the Colonial Secretary of the day, replying, said, ” Canada cannot reasonably expect that this country should, for an indefinite period, incur the constant risk of a serious misunderstanding with the United States.”
As an example of one sided reading of a Treaty the two following instances may be quoted :Article 21 provided that fish and fish oil should be admitted free into the country. At the end of four years Congress passed a law imposing duty on ” cans or packages made of tin, or material, containing fish of any kind,” with the result that the export of fish from Canada was practically stopped. The article of the Treaty which allowed each nation reciprocal use of the other nation’s canals was read by the United States in such a fashion that although American vessels with cargoes were allowed to pass through all the Canadian canals and the St. Lawrence River, Canadian vessels with cargo were stopped at the junction of the American canals with the waterway, and had either to return to Canada, or tranship their cargoes into American vessels.
In 1874, in a further attempt to promote friendly relations with the United States, a draft Treaty was drawn up conceding the fishery right for twenty-one years and abandoning the compensation clauses of the Treaty of 1871. There were certain other provisions of a reciprocal nature, for example, the entrance of natural pro-ducts and certain manufactured articles, the construction and enlargement of certain canals, reciprocal use of certain canals, and a joint commission to regulate fishing in the inland waters common to both countries.
This Treaty, accepted by Great Britain and Canada, was rejected by the United States Senate.
In 1888 yet another effort was made to settle the fishery question, and a draft Treaty was signed by the Rt. Hon. Joseph Chamberlain, Sir L. Sackville West, and Sir Charles Tupper, on behalf of Great Britain and Canada, and by the Hons. Thomas F. Bayard, William L. Putnam, and James B. Angell, on behalf of the United States. This provided that a joint commission should delimit the bays, creeks and harbours, etc., that certain definite rules should be laid down respecting the three miles limit, that the Strait of Canso should be free to the United States, and that on the removal of the duty on Canadian fish oils, fish, and packages for the same, Canada should remove her duty on American imported fish. There were certain other regulations relating to the free entry of United States fishing vessels to the Canadian ports. An interim modus vivendi was agreed to, whilst the Treaty was in process of consideration by the respective countries.
Canada agreed to the Treaty : the Senate of the United States rejected it.
One of the most recent matters at issue between the United States and Canada has been the question of the Alaskan boundary. To trace the origin of the dispute one must go back to 1799, when the Russian-American Company was granted trading privileges on the American coast up to 65° north latitude. These privileges extended also to the Russian islands in the Pacific Ocean and in the Behring Sea. A brisk trade was soon established with the natives, a good deal of which was carried on by barter of arms and ammunition ; and this gave annoyance to the Russians. Finally, in 1821, a ukase was promulgated, by which Russia claimed exclusive sovereignty on all islands, ports, and gulfs, including the whole of the North-West coast of America, beginning from Behring Straits. Foreign vessels were forbidden, under penalty of confiscation, to approach within 100 Italian miles of Russian territory. This decree naturally could not be accepted, and in response to protests from Great Britain and the United States, Russia abandoned her claim to exclusive maritime jurisdiction, and her territorial claims, were left an open question.
In 1822 Britain was invited to formulate her claims as to the territory on the North-West coast of America, and negotiations were opened with the Russian minister by Sir Charles Bagot, the British minister at St. Petersburg. After protracted negotiations an agreement was reached on February 16th, 1825, and the Treaty defining the Russian American boundary was signed.
How much of this territory belonged to Britain and how much to Russia depended upon the meaning of the second paragraph of Article 4, which says, ” Whenever the summit of the mountains which extend in a direction parallel to the coast from the 56th degree north latitude to the point of inclusion of the 141st degree west longitude shall prove to be at a distance of more than ten marine leagues from the ocean, the limit between the British possessions and the line (lisiere) of coast which is to belong to Russia, as above mentioned, shall be formed by a line parellel to the windings (sinuosités) of the coast, and which shall never exceed the distance of ten marine leagues therefrom.”
A glance at the map of Alaska will show that there are many waterways coming from Canada, which are called at random, canal, river, inlet, or channel ; and the crux of the dispute between the United States and Canada was as to whether the Lynn canal was an inlet, a territorial or littoral sea, a tidal river, or a high sea.
In 1867 the United States made a Treaty with Russia, by which all Russian territory in North America became the possession of the United States, and the definition of the Russian boundary was that of the Treaty of 1875. It was not until British Columbia entered the Union that Great Britain’s interest in the Alaskan boundary became vital. In 1872, on the initiative of the British Columbia Legislative Assembly, Great Britain pointed out the desirability of having a definite boundary. This proposition was enforced by President Grant in his message to Congress, but no action was taken. In 1884, Mr. Dail, of the United States Survey, pointed out that since there was no continuous range of mountains parallel to the coast the United States would contend for a line which followed the sinuosities of the coast, at a distance of ten marine leagues, and three years later an informal conference was held between Dr. Dail and Dr. Dawson, of the Geological Survey of Canada, for the purpose of agreeing on certain conventional lines. In his report, Dr. Dawson claimed that the line should cross the inlets of the coast.
Under a convention of 1892 a joint survey of the district near the boundary line was made by Dr. King and General Duffield. Five years later, the discovery of gold in the Yukon brought home to both parties the necessity of coming to some agreement. As a provisional boundary the watershed at the summit of the passage at the head of the Lynn canal was accepted without prejudice to the Treaty rights of either party. The joint commission held in 1898 endeavoured to come to some agreement as to the basis on which the boundary line could be defined. The British Commissioners proposed a reference to three jurists, one nominated by each party, and the third by the two selected jurists in case of disagreement by a friendly power. The United States would agree to this only on the impossible condition that the third arbitrator should be appointed by one of the independent states of South America. Great Britain’s suggestion that the question be submitted to The Hague tribunal was rejected by the United States, and the United States Commissioner’s suggestion of a tribunal of six impartial jurists, three to be chosen by each nation, was not satisfactory to Great Britain, since it gave no promise of a final settlement. Both parties, however, were really anxious that the question should be settled, and in January, 1903, a draft convention based on the proposal of the United States was approved by the Canadian government, and the ratifications of the Treaty were exchanged two months later.
In accordance with this convention the tribunal consisted of Lord Alverstone, Lord Chief justice of England ; Sir Louis Jetté, Lieutenant-Governor of Quebec ; and Mr. A. B. Aylesworth, K.C., representing Great Britain ; and of the Hon. Elihu Root, Secretary of War of the United States ; the Hon. Senator Lodge of Massachusetts, and the Hon. Senator Turner of Washington, representing the United States, assembled in London on September 3, 1903.
To it were submitted for impartial consideration seven questions, based on Articles 3, 4 and 5 of the Treaty of 1825.
The history of the Alaskan Boundary Award is still too fresh in the minds of Canadians and Englishmen to permit of a definite historical treatment in this chapter. The passions which were aroused by the Award have not yet completely cooled, most of the actors in it are still alive, and occupy high positions in their respective governments. All that can be done, therefore, is to set down plainly the questions which were put to the tribunal, and to outline the decisions arrived at in the case of each.
The first question was, ” What is intended as the point of the commencement of the line ? ” Both countries agreed that the most southerly point of Prince of Wales Island was Cape Muzon and that from this point the boundary line should begin.
The second question was, ” What channel is the Portland channel ? ” The British contended that this channel, which Vancouver named ” Portland Canal,” entering the sea between Tongass Island and Kannaghunut Island, leaving Sitclan, Wales, and Pearse Islands on the South-East, and extending North for eighty-two miles to its head.
The United States, on the other hand, claimed that it was the body of water now known and described as Portland Canal, which, passing from the North between Ramsden Point on the mainland and Pearse Island, and thence south of the said Island and Wales Island, enters Dixson entrance between Wales Island and Compton Island.
This question was the subject of furious argument, and reference was made to the Vancouver charts, the Russian map of 1802, and many other authorities and maps.
The arbitrators decided against the Canadian view, and were supported in their decision by Lord Alverstone, against whom a great outcry was made for what was regarded in Canada as sacrifice of Canadian interests.
The actual effect of this decision was to hand over to the United States the two barren islands of Sitclan and Kannaghunut, which, so far as one can judge, are never likely to be of very much value to either country.
The third and fourth questions were upon relatively unimportant points as to how lines should be drawn connecting the points already decided upon.
The fifth question was by far the most important of all those raised in the arbitration.
” In extending the line of demarcation northward from said point on the parallel of the 56th degree of north latitude, following the crest of the mountains situated parallel to the coast until its intersection with the 141st degree of longitude west of Greenwich, subject to the conditions that if such a line should anywhere exceed the distance of ten marine leagues from the ocean, then the boundary between the British and the Russian territory should be formed by a line parallel to the sinuosities of the coast, and distant therefrom not more than ten marine leagues, was it the intention and meaning of the said Convention of 1825 that there should remain in the exclusive possession of Russia a continuous fringe, or strip, of coast on the mainland not exceeding ten marine leagues in width, separating the British possessions from the bays, ports, inlets, havens, and waters of the ocean, and extending from the said point where such a line of demarcation should intersect the 141st degree of longitude west of the meridian of Greenwich ? ”
In other words, it was practically a question as to who should own the heads of the inlets ; should the boundary line go right round the heads of the inlets, or should it cut across them leaving merely a ten mile strip from the general outline of the coast ?
The arguments pro and con, learned and technical as they are, can be appreciated only by close reading of the historical and legal arguments which were advanced in the Convention.
It was decided that the intention of the Convention was that there should remain in the exclusive possession of Russia a continuous fringe, or strip, on the mainland, not exceeding ten marine leagues in width, separating the British possession from the bays, ports, etc., and the waters of the ocean.
The decision on this question was satisfactory to neither party, but was a compromise between the claims of Great Britain and the United States.
The sixth question being dependent upon the negative answer to the fifth thus became superfluous.
The seventh was, ” What, if any, are the mountains referred to as situated parallel to the coast ? ” The United States claimed that they did not exist. Britain, on the other hand, claimed that they existed, and her contention was supported by the tribunal, and, as far as possible, the mountains referred to were marked.
And so, like most arbitration awards, and particularly boundary awards, the great Alaskan Award was more or less of a compromise between two incompatible claims.
After the award some little criticism was directed by the Canadian Press to the composition of the tribunal, but it must be remembered that it was Canada herself who accepted the Convention, and agreed to the tribunal, and in doing so she became party to its award.
Lord Alverstone was attacked both in Canada and in England for his decisions, but now that the warmth of the controversy is cooling, it will probably be admitted by his most sincere detractors that there was an element of doubt in the claim put forward by Great Britain, and that his judicial mind is at least as capable as those of his critics of interpreting fairly the meaning of an obscure treaty.