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THE COUNTER-CASE OF HIS BRITANNIC

MAJESTY'S GOVERNMENT.

INTRODUCTION.

In the Case presented on behalf of His Britannic Majesty's Government, an endeavour has been made to marshal the facts bearing on each of the questions referred to the Tribunal, and to state in a clear form the British contentions with an outline of the arguments by which they are supported.

The Case of the United States (p. 6) is framed on different lines. It gives a summary of the events which led up to the treaty of 1818, and a history of the transactions between the parties since that time, but the reasons and grounds on which the position of the United States is sought to be sustained are not specified. There is some general comment in the course of the historical summary, but there is nowhere any clear indication of the grounds on which reliance is placed. Indeed it is stated, in the opening chapter, that this will be deferred until the later stage, when written and oral arguments are addressed to the Tribunal.

It is not possible to deal with the contentions of the United States until they are formulated in a definite way, and it is therefore proposed in this Counter-Case to offer some observations of a general character only, in reply to the Case of the United States, and to

discuss some of the questions of fact raised in it.

His Majesty's Government desires to submit to the Tribunal

two points by way of introduction to this Counter-Case: 1. The questions referred to the Tribunal must be determined by the terms of the treaty of 1818. There has been much discussion during the ninety years that have elapsed since its date, and a considerable portion of the Cases presented by the two Governments is occupied by an examination of the correspondence which has passed between them. These matters cannot be put altogether out of consideration, but the construction of the treaty must primarily depend on the language used in it, and the meaning of that language cannot be altered by diplomatic correspondence of a later date. So far as the correspondence can legitimately be looked at, His Majesty's Government submits that it bears out the meaning which, upon the

language of the treaty itself, His Majesty's Government attributes to it.

2. His Majesty's Government observes that some attempt has been made in the Case of the United States to draw a distinction between the action of Great Britain and that of the Colonies.

It appears to be suggested that, at some times and on some points, the British Government did not take the same view of the construction of the treaty as the Colonial Governments, and that Great Britain was indisposed to claim the full rights for which the Colonies contended. The evidence before the Tribunal lends no support to this suggestion, and His Majesty's Government desires to record an emphatic dissent from it.

There have been periods when the British Government, for reasons of Imperial policy, has been anxious to avoid the possibility of friction with the United States and has, for a time, been willing to forego the enforcement of the treaty to its full extent. But the British Government has never expressed any disagreement with the Colonies as to the construction of the treaty on any single one of the points now under discussion. On the contrary, it will be found that throughout the correspondence Great Britain has repeatedly declared her concurrence in the view taken by the Colonial Governments, and even in cases in which it has seemed inadvisable for a time to enforce

the treaty in its entirety, the concession has been invariably 3 accompanied by a statement of the full rights which Great

Britain and the Colonies alike claimed. Complaint is made in the Case of the United States of aggressive action on the part of the Colonies and of the extreme view taken by them of their rights. This appears to be a subject which is not material to the issues now under discussion, but in case, at any stage, the Tribunal should desire to enquire into it, His Majesty's Government will be prepared to deal with it fully. A consideration of the evidence will show that there is no ground for the complaint made on this head in the United States Case.

For the same reasons which prevent the British Government from entering at the present stage into any details with regard to the complaint made as to the conduct of the Colonial Governments, His Majesty's Government also abstains from setting out the complaints which might be made with regard to the action of the United States Government, in connection with the disputes which from time to time arose. Both heads of enquiry are alike irrelevant.

5

QUESTION ONE.

RIGHT OF REGULATION.

PRELIMINARY.

In the argument on this question presented in the British Case, it has been shown that the provisions of the treaty of 1818 do not impose any restriction on the sovereignty of Great Britain over the waters and shores in question, and that the right to make regulations with regard to the conduct of the fisheries granted by the treaty resides with the British and Colonial Legislatures, and with them alone. The treaty operates, as has been there submitted, simply as an agreement, by which Great Britain undertook not to exercise her sovereignty so as to nullify the liberties conferred by the treaty, or to make unfair discrimination as against American fishermen.

The considerations on which this conclusion is based are not discussed in the Case of the United States (pp. 8–10). Their contention is stated in the following passage :

The United States and Great Britain thus met as independent nations negotiating for the purpose of concluding a treaty of peace dividing between them the British Empire in North America, and standing on this basis the Commissioners on the part of the United States asserted and insisted throughout the negotiations that the British interests in the North Atlantic Coast fisheries were subject to such division and that the preexisting rights of the Colonies therein must be recognized and continued by the treaty.

The people of the Massachusetts Bay Colony and of the other Colonies had continuously and freely resorted to these fisheries and exercised unrestricted fishing rights and liberties there until the time of the Revolution, and had borne almost unaided the burden of maintaining and defending their own and British interests in these fisheries against the aggressions of the French during the wars between Great Britain and France. In view of such continuous usage and enjoyment and by virtue of the services rendered by them in defence of these fisheries, the American Colonies asserted and insisted that they had in them at least the equal rights of joint owners with Great

Britain and the other British Colonies. John Adams, one of 6 the American Commissioners in the peace negotiations, bears

witness, in a statement written by him in 1822 in review of these negotiations, that the grounds and principles on which the fisheries article of the treaty of 1783 was contended for on their part and finally yielded on the part of Great Britain were among others the following:

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