Page images
PDF
EPUB

Indies continued to be pressed during this period. There was constant fighting against Spanish ships and forts and this was encouraged by the issue of letters of marque to privateers who were instructed to force trade on the Spaniard. From instructions issued by Charles II in 1662 we can see how and why this was to be done, since the Spaniards "were engrossing to themselves the riches of the Indies contrary to the use and custom of all governments and the laws of nations".1 France was similarly engaged in endeavouring to obtain freedom of commerce and in 1701 received from Spain the monopoly of the supply of slaves or Asiento.2 By the Peace of Utrecht, 1713, this privilege was transferred to an English company. In passing judgment on the claims of Great Britain to trade freely in the Spanish colonies it is well to recall that the policy of Spain was not dissimilar from that of other European Powers at the time, including England, whose Navigation Acts were passed with the object of retaining her colonial trade. "C'est encore une loi fondamentale de l'Europe, que tout commerce avec une colonie étrangère est regardé comme un pur monopole." After the secession of the American colonies Great Britain found herself in much the same position as Spain had been, as the Americans continued to claim the rights to trade with British colonies which they had enjoyed before the War of Independence.

The disputes with the Dutch over the fisheries in the North Sea and off the British coasts gradually died down, and in the eighteenth century, largely owing to the wars in which Holland was engaged, the Dutch fishing fleets diminished while those of Great Britain increased till they have become to-day larger than those of all the other States combined.

Interest in fishing rights was removed to North America. Disputes were raised between England and France in the latter part of the seventeenth century, and, by a treaty of 16 November 1686 between James II and Louis XIV called "A Treaty of Peace, Good correspondence and Neutrality in America", British and French subjects were required to abstain from fishing or trading "in the havens, bays, creeks, roads, shoals or places" belonging to the other, though the freedom of innocent navigation was not to be disturbed. There was an attempt at definition of boundaries, which though vague in terms corresponded to the principles applicable to neutral waters laid down in the English proclamations of 1668 and 1683, in which the definition was "within our ports, havens, roads and creeks, as also in every other place or tract at sea that may be reasonably construed to be within any of these denominations, limits or precincts".5 By the same treaty French subjects received permission to fish for turtles in the islands of Cayman.

1 Marsden, R. G., II, 41.
See chapter XI.
Fulton, p. 553.

2 Dumont, Corps diplomatique, vш, i, 83..
♦ Montesquieu, Esprit des Lois, bk xxi, chap. xxi.

FISHING RIGHTS

543 The beginning of grants of fishing off the coasts of North America is found in the Treaty of Utrecht, whose interpretation and operation were the sources of fruitful dispute until the Anglo-French settlement in 1904. By this treaty, which ceded Nova Scotia and Newfoundland to Great Britain, French subjects obtained the right to fish in the seas, bays and other places to thirty leagues from the south-east coast of Nova Scotia and to have certain privileges as to landing and drying fish. By the Treaty of Paris, 1763, these rights were reaffirmed, though Canada and Cape Breton Island were ceded to Great Britain. In addition the right of fishing was also granted to French subjects in the Gulf of St Lawrence on condition that they did "not exercise the said fishery, except at a distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situate in the said Gulf of St Lawrence". The Islands of St Pierre and Miquelon were ceded to France for the use of the French fishermen.2 The grant of rights of this nature both to the French and subsequently to the Americans in 1783 is quite exceptional, and can only be explained by the peculiarity of the circumstances in each case. The British Government successfully contended before the Hague Tribunal in 1910, in the North Atlantic Fisheries Arbitration, that the claim of a State for its citizens to fish in the territorial waters of another can rest only on a special agreement. Its further contention that, on the separation of one State from another, the inhabitants of the former cannot continue to be entitled to exercise rights formerly enjoyed by them was also upheld by the Award. It must be remembered that at the time of the grants both to France and to the United States the limits of territorial waters had not been settled.

The struggle between the English and French in North America ended with the termination of the Seven Years' War and the final expulsion of the French power from Canada in 1763. Disputes as to boundaries, as to interpretation of treaties, and the absence of the observance of such rules of international law as were gradually emerging in Europe in relation to the laws of war, appear to be the chief characteristics of this important fight for predominance on the North American continent.

French settlements in Canada in the middle of the seventeenth century had made but slow advance. This was partly due to the methods of colonisation which were largely based on military principles, partly to the rigours of the winter climate and partly to the hostility of the Indian nations under the leadership of the Iroquois. But from 1669 onward the French spirit of enterprise was brilliantly exemplified in the expedition of La Salle, who finally navigated the

1 Dumont, VII, i, 341.

2 Martens, Recueil, 1, 109.

a Wilson, G. G., The Hague Arbitration Treaties, pp. 134-205.

Illinois River and thence the Mississippi to its mouth in 1682. He took possession of the country from the Ohio to the sea and Rio Grande and named it Louisiana after his king, Louis XIV. He based his title to this great expanse of territory on discovery, claiming to have been the first European to have ascended or descended the Mississippi, being ignorant, apparently, of earlier Spanish explorations. The territory between the Mississippi and the Ohio, which extended eastwards to the fringe of the English settlements on the coast, was inhabited by large and important tribes of Indians, particularly in the region from the mountains of western New England to Lake Erie. The league of the Iroquois, or the Five Nations, was the key to this position, and so long as they were unsubdued the effective possession of the region north of the Potomac and the Ohio and east of the Mississippi could not be attributed to either English or French. In the main the Iroquois sided with the Dutch and the English against the French and after the cession of the Dutch settlements to England by the Treaty of Breda, 1667, they formed a useful barrier to the French claims. This was strengthened in 1684, when, after a conference with the Five Nations, they acknowledged themselves as subjects of England, and the arms of the Duke of York were placed on the walls of the Iroquois fortified towns. French claims to sovereignty over the areas in which these tribes lived were no longer tenable after effective possession had been taken.

The legal position of the Indian tribes has in modern times received a considerable amount of attention, as numerous cases involving their status have come before the courts of the United States. In the early days, however, proprietary and sovereign rights were never clearly differentiated, and, although Spanish publicists at the time of the conquest of America upheld the claims of the Indians and condemned the treatment they were receiving at the hands of their conquerors, European nations continued to assert rights acquired by discovery against the rest of the world, but they made treaties from time to time with the Indian nations inhabiting the lands in the territories which they claimed. In all the territories in North America which were included in the earliest charters to colonisers the soil was occupied by Indians. In many cases the colonists purchased their lands from the Indians, and protected them in the possession of those which were left in their occupation. Penn's treaty in 1681 was a remarkable example of such a purchase. The general position of the Indian tribes was regarded by England in much the same way as at a later date the United States regarded their relation to these nations, namely, as domestic dependent nations; the relationship being analogous to that of guardian and ward. The general 1 See Channing, E., History of U.S. vol. 11, chap. v.

Ibid. p. 146.

3 E.g. Bishop Las Casas. See Helps, Sir Arthur, The Spanish Conquest of America. The Cherokee Nation v. The State of Georgia, 5 Peters, 1.

STATUS OF INDIAN TRIBES

"1

545 position was set forth by Chief Justice Marshall, delivering the opinion of the Supreme Court of the United States in the case of Johnson and Graham's Lessees v. McIntosh, in 1822: "The relations which were to exist between the discoverers and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them....Their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it.' Throughout this period, down to the War of Independence, the British Government did not interfere with the internal affairs of the Indian tribes, except where it was necessary to keep out the agents of foreign Powers who were attempting to seduce them from their allegiance. Their alliance and dependence were purchased by subsidies, and the Indian nations were considered as nations who had come under the protection of the British Crown.2 The Indian tribe, as a nation, was considered as a legal unit, and, before the Revolution, all the lands of the Six Nations in New York had been put under the Crown as "appendant to the Colony of New York", and that colony had dealt with those tribes exclusively as under its protection.3

Meantime the northerly and to some extent the westerly expansion of French Canada was checked by the establishment under a charter of Charles II in 1670 of the Hudson's Bay Company. The area south of Hudson Bay was approached by a line of communication between Lake Superior and Hudson Bay, and a voyage from London to Hudson Bay was successfully made by a company of traders in 1668. Englishmen thus secured a footing on the southern and western shores of this great inland sea with a series of trading stations from Lake Superior northwards. Annexation under the charter and settlement by the traders, the two essentials now recognised by international law as giving a valid title by occupation, were thus combined. This possession was soon disputed, and the French under the energetic D'Iberville were able to oust the English traders, until by the Treaty of Utrecht, 1713 (Art. x), France restored to Great Britain and recognised her sovereignty over Hudson Bay and Strait with all dependent lands, seas, banks, rivers and places. Territory then in French possession was to be restored together with all forts, artillery and ammunition. The boundary between the English and French possessions was to be settled by a joint commission.

1 8 Wheaton, Reports, 543, 573, 574.

* Wheaton, H., International Law, § 38. The case of the Cayuga Indian claims before the American and British Claims Arbitration Tribunal, 1926 (American Journal of International Law, xx, 574); see also Halleck, H. W., International Law, 4th edn, 1, 80; Lindley, M. F., The Acquisition and Government of Backward Territory, chaps. xxxvi and xxxvii; Moore, J. B., Digest of International Law, vol. 1, §15; Snow, A. H., The question of aborigines in the law and practice of nations; Westlake, J., Collected Papers, chap. ix.

CHBE I

35

Great areas were still uninhabited and undiscovered by white men, and the only test which could be applied to claims to sovereignty was that of effective possession. The French did not penetrate the Appalachian range of mountains which formed a natural boundary for the English settlements. But from New Orleans to the southern shores of Lakes Michigan, Erie and Ontario the French had isolated forts on the great rivers. It was the obvious aim of France to confine the English colonists to the east of the mountainous ranges extending in a north-easterly direction from the higher reaches of the Alabama to Lake Champlain, and France was slowly making good her claim by occupation to the whole basin of the Mississippi.

During a period of nominal peace in Europe between England and France the struggle continued with varying fortunes on the American continent. It was felt, as Benjamin Franklin said, that there could be no peace in the thirteen colonies so long as France was mistress of Canada. French forts were erected on debatable ground and there was constant friction, and open fighting on various portions of the frontiers. Meantime a boundary commission had been set up in 1750 by the two governments to delimit the frontiers between British and French territory in North America and to settle the question of the ownership of the islands of St Vincent, Tobago and St Lucia. Nothing of practical value resulted from their labours and in 1754 the governments entered into direct negotiations on the boundary question.

The line between peace and war was still very undefined as it had been in the time of the struggle between England and Spain in the sixteenth century. Acts of violence took place at sea between States before any formal declaration or breach of diplomatic relations, though these sometimes followed. General reprisals, indistinguishable from war in practice, were frequently decreed or wrongs or alleged wrongs, though a state of war was not desired.1 The destruction by Sir George Byng (afterwards Lord Torrington) of the Spanish fleet off Cape Passaro in Sicily in August 1718 occurred under peculiar circumstances, Great Britain and Spain being at the time at peace (war was not formally declared until the following December). The proposed modifications of the Treaty of Utrecht (elsewhere explained) were hateful to the King of Spain, who to prevent Sicily from being transferred to the Emperor prepared to attack it. Sir George Byng was British Commander-in-Chief in the Mediterranean with general instructions to prevent Spain from interfering with the arrangements which had been made by the Powers of the Quadruple Alliance. In July the Spaniards had landed in Sicily and taken the whole of the island except Messina. Byng wrote to the Spanish commander, the Marquis de Lede, proposing a suspension of arms for two months. This was refused. Byng went in search of the Spanish

1 Marsden, R. G., п, 273, 279, 283.

« PreviousContinue »