Editor’s Note: This post is part of a series on Canadian coastal histories, which considers intersections of nature and culture along the saline shores of the land and tidewaters currently known as Canada, the country with the world’s longest coastline. Guest-edited by Sara Spike.
The regulation of British North America’s fishery is one of the more complicated aspects of pre-Confederation Canadian history. Colonial legislators understood that fish were critical exports to markets throughout the Atlantic world—to the Catholic societies of the Mediterranean and to the slave plantations in the Caribbean Basin and Brazil—as well as a major aspect of each colony ’s food economy. But they also recognized that their powers of resource regulation and policing were intricately woven into the geopolitics of the Atlantic world. In the nineteenth century, Nova Scotia, New Brunswick, and Prince Edward Island acted in concert to forestall the rapid deterioration of the Atlantic fishery in the face of an aggressive and expansive fishing industry in the United States. When these colonies challenged Americans who fished illegally in their waters, often by impounding vessels, Americans, in turn, challenged the jurisdictional authority of the colonies to police their own inshore waters. In question was the meaning of the 1778 Taxation of the Colonies Act in light of the Anglo-American Convention of 1818.[1]
The Convention of 1818 established British North America’s overland border with the United States from the Lake of the Woods to the Rocky Mountain range along the forty-ninth parallel, but the treaty’s effect upon political jurisdiction at sea remained contested for much of the nineteenth century. In the first article of the Convention, the imperial government effectively transferred responsibility for inshore waters to provincial governments. United States citizens had “the Liberty to take Fish of every kind on . . . the Southern Coast of Newfoundland . . ., on the Western and Northern Coast of Newfoundland,” and on the shore of Labrador. That liberty included the right “to dry and cure Fish in any of the unsettled Bays, Harbours, and Creeks of the Southern part of the Coast of Newfoundland . . . , [and] the Coast of Labrador.” The settlement of British subjects on any of the coasts of Newfoundland and Labrador would nullify US liberties on those stretches of coastline. In all other parts of British North America, the US agreed “to renounce for ever” all rights to fish “within three marine Miles of any of the Coasts, Bays, Creeks, or Harbours,” which they had been awarded under the 1783 Treaty of Paris, but had abrogated when the US declared war on Britain on June 18, 1812.[2] Until the activation of the Constitution Act in 1867, when the regulation of the east coast fisheries became a federal mandate, they were regulated by five colonial legislatures, the British Parliament, and a series of treaties with the United States.
This short essay outlines how constitutional, geopolitical, and environmental issues intersected in the regulation of the pre-Confederation fishery, addressing the constitutional status of inshore waters in British North America and identifying intercolonial cooperation, a form of poly-centric governance,[3] with regards to resource regulation and imperial relations. Colonial officials were aware that the environmental consequences of overfishing were intertwined with domestic, imperial, and international politics. Ironically, Harold Innis first hinted at these issues in The Cod Fisheries (1940) when he cryptically noted that the Convention of 1818 left “various rights undetermined” when it came to the regulation of the inshore fishery, saying little else about it.[4] Although the language of the Convention clearly excluded US citizens from fishing within three miles of the shore of all colonies except Newfoundland and Labrador, colonial officials also were acutely aware that “indiscreet negotiation between Great Britain and the United States of America” served to provide episodic sanction to the “flagrant violations of subsisting Treaties by the Citizens of the latter” nation, as James Uniacke of Nova Scotia observed in 1837. For colonies struggling to regulate their fisheries responsibly, the international jockeying that excluded colonists presented “a melancholy picture.” [5]
In contrast to imperial authorities who were relatively indifferent to American infractions, colonial officials in the Maritime colonies recognized that the inshore fishery had to be protected from overfishing and that it was their responsibility to do so, but they had to articulate clearly the constitutional basis of their regulations when Americans challenged them. Indeed, the overharvesting of fish by American fishermen posed interrelated threats to the region’s commercial interests and to the constitutional integrity of the colonies and their right to regulate their fisheries and to prosecute violators. Americans tried to claim that the colonies had no authority to police inshore waters, that it was an imperial not colonial responsibility, while the British North American colonists argued that their jurisdictional authority over inshore waters derived from the 1778 Taxation of the Colonies Act and the three-mile coastal zone around each colony as articulated in the Convention of 1818.
New Brunswick was the first British province to actively police its coastal waters when the assembly passed legislation in 1822 to fund an armed cutter to cruise the Bay of Fundy. The province recovered part of the costs by placing higher tariffs on American goods and wharfage fees for American ships. The crews of the cutter were empowered to “detain and examine any vessel or boat which may be found hovering around the coast and bays or rivers” of the province.[6] In 1836, Nova Scotia passed similar legislation for the purpose of detaining foreign vessels “hovering” in waters that the assembly deemed as within Nova Scotia’s jurisdiction; Prince Edward Island followed suit with a similar “Hovering Act” in 1843.[7] Countless American fishing vessels were seized and held in ports such as Saint John, St. Andrew’s, Annapolis Royal, and Halifax with incidents involving American fishermen documented in nearly every assembly-commissioned report on the status of the fishery between 1818 and 1867.[8]
The colonial policing of inshore waters frustrated American officials, and Washington went to great lengths to challenge the Maritime colonies’ constitutional right to police their coasts and to capture and detain American vessels, and in some instances auction their property to pay fines when colonial courts found Americans guilty. The American Minister to Britain, Edward Everett, protested in the 1840s that the actions of the Maritime colonies, and in particular Nova Scotia, were an “essential injustice” against the rights of Americans to access the Atlantic fishery. Everett challenged “the extremely objectionable character of the course pursued by the Provincial authorities,” in other words impounding American vessels in inshore waters, and “in presuming to decide for themselves a question under discussion between the two Governments [Britain and the US].” This American assertion that the colonies did not have jurisdiction over the waters within the three-mile limit was an ironic attempt to encourage the imperial government to violate provincial authority, one of the reasons Americans had rebelled in 1776. Everett, and other American government officials, clearly thought they should only have had to deal with the imperial government and believed they could persuade imperial officials to override provincial authority, as Uniacke averred was happening.[9]
Colonial legislators and British parliamentarians were fully aware that Britain had surrendered its right to legislate revenue within the colonies with the 1778 Taxation of the Colonies Act, Britain’s olive branch to patriot rebels, passed by Westminster to regain control of its colonies in rebellion. Though it failed to curb the civil war, the act effectively mandated colonial jurisdiction over the sea within range of a cannon shot (formalized as the three-mile limit by the Convention of 1818), and made acts passed by colonial legislatures for protecting commerce and revenue within that zone constitutional. According to Lord Edward Stanley, Secretary of State for War and the Colonies, by 1843 the colonies were bringing “provisions of the Imperial Law more and more into accordance with the spirit of the declaratory Act of 1778—and to afford new practical recognitions of the principle equality and impartiality in the dealings of the Imperial Legislature, with the Colonial Possessions of the Crown.”[10] In other words, Britain’s olive branch to Americans in 1778 worked against the new United States after 1818 when it gave the remaining British colonies of North America unprecedented power to police the fishery as a possession of the Crown and common pool resource for the purpose of revenue.
Their actions constitutional, the Maritimes were even able to gain funding from the imperial legislature for the purpose of policing the inshore waters: Britain contributed a small fleet of steamers to assist the cutters provided by all three colonial governments. The policy of restriction, pursued with the cooperation of Fredericton, Charlottetown, and Halifax, was so successful that it prevented Americans from landing on the Magdalen Islands during the 1843 fishing season with the capture of a number of New England schooners, including the Washington, as they sailed the Strait of Canso en route to the Gulf of Saint Lawrence. Polycentric governance practiced by the Maritime colonies was imperative to the protection of the Northwest Atlantic fishery, and notably decreased American fishing in waters around New Brunswick, Prince Edward Island, and Nova Scotia. In one report on the Cape Breton fishery prepared by the assembly in Halifax, colonial officials claimed that restrictive measures placed on “American tonnage engaged in the fishery” decreased the number of barrels of fish taken illegally by American fishermen “from 61,082 in 1835 to 11,775 in 1844.” [11] If General Washington’s crossing of the Delaware River is a symbol of America’s rise in the war against Britain, then the eponymous ship’s inability to cross the Cabot Strait highlights the success of the three Maritime Provinces against an expansionist American state.
Polycentric governance was a successful tool employed in the Atlantic region for the purpose of resource management. Such measures curbed overfishing and forestalled the kind of resource extraction that characterized nineteenth-century commercial governmentality. Not until Britain transferred regulation of the fishery to the new Dominion government in 1867 did such measures cease, leaving the Maritimes with the same problems but with reduced provincial powers to resist them. In the Maritimes, with regards to the fishery, the full expression of liberal governance arrived with Confederation.
This short essay was completed as part of a research assistantship for Dr. Elizabeth Mancke, CRC of Atlantic Canada Studies at UNB and contributes to her larger project on the regulation of the commons in the Atlantic region with funding provided by the New Brunswick Innovation Foundation. More information on the project can be found at atlanticdigitalscholarship.ca/the-commons/
Feature Photograph: Herring Smoke Sheds, Seal Cove, Grand Manan, Photographed by the author, August 11, 2020.
[1] Scholarship in Canada on the 1778 Taxation of the Colonies Act (often called the 1778 Declaratory Act in Canadian scholarship) is seriously underdeveloped, and its relationship to the Convention of 1818 largely unknown. See P. Girard, Phillips, & R. Blake, eds., A History of Law in Canada. Vol. 1, Beginnings to 1866 (Toronto, University of Toronto Press, 2018): 185. The text of the legislation can be found in W. P. M. Kennedy, ed., Statutes, Treaties and Documents of the Canadian Constitution, 1713-1929, 2nd ed., (Oxford: Oxford University Press, 1930), 167-8, but Kennedy notes that the act “is more particularly concerned with the American colonies,” and only included “because the title may include Canada,” not recognizing it was a significant part of the imperial constitution. He does not include the Convention of 1818. Legal historians of the American Revolution seldom give much attention to the long-term implications of the 1778 act, while it is somewhat more significant to constitutional reforms in Ireland in 1782. See John Phillip Reid, Constitutional History of the American Revolution. Vol. 4, The Authority of Law (Madison, Wis.: University of Wisconsin Press, 1993), 134-150.
[2] The text of the “Convention of 1818” can be found at https://avalon.law.yale.edu/19th_century/conv1818.asp, accessed 20 August 2020.
[3] Elinor Ostrom, “Beyond Markets and States: Polycentric Governance of Complex Economic Systems,” American Economic Review 100 (June 2010), 641-672.
[4] Harold A. Innis, The Cod Fisheries: The History of an International Economy, orig. pub. 1940, Rev. ed. (Toronto: University of Toronto Press, 1954): 225.
[5] James B Uniacke, “Report from Committee of Nova Scotia of the Subject of Fisheries [1837],” in Journal of the House of Assembly of the Province of New Brunswick, 1838 (Fredericton: John Simpson, 1838), Appendix 8, np.
[6] 3 George IV, Chapter 32, “An Act to provide for and maintain an armed Cutter, for the protection of the Revenue of the Province,” in Acts of the General Assembly of His Majesty’s Province of New-Brunswick passed in the year 1822 (Fredericton, NB: George K. Lugrin, 1822), 92-98, quote on 97. .
[7] See Innis, The Cod Fishery, (1940): 344 and349
[8] Reports detailing these impounding of vessels are detail in fishery reports that are available digitally via Atlanticdigitalscholarship.ca. http://atlanticdigitalscholarship.ca/digital-research/the-commons/the-bay-of-fundy/ [accessed July 28. 2020]
[9] 1846. Johnston, J.W [Attorney General of Nova Scotia], Letter to Lt. Gov. Viscount Falkland re fishery disputes,” Journal and Proceedings of the House of Assembly of the Province of Nova Scotia, 1846 (Halifax: Grossip & Goade, 1846). Appendix, No.11, pp. 28-31, quotes on 29.
[10] Letter from Lord Stanley to Charles Bagot, 17 August 1842, in Appendix 8, Journal and Proceedings of the House of Assembly, 1843 (Halifax: Richard Nugent,1843), 37-40, quote on 37.
[11] Innis, The Cod Fishery, 347.
