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colleagues were divided in opinion. It was then that Mr. Adams, for the first time, made the suggestion, as an alternative, that the matter of the fisheries should be dropped out of the negotiations altogether, and the ground taken that (App., p. 138)— the whole right to the fisheries was recognized as a part of our national independence, that it could not be abrogated by the war, and needed no stipulation for its renewal.

His suggestion was not accepted at the time, but on the 7th November it was again discussed and was then agreed to, as appears from Mr. Adams' diary of that date, as a compromise. Mr. Russell, one of the negotiators, during a subsequent controversy with Mr. Adams, speaks of the incident in the following terms (App., p. 162):

The principle, that the treaty of 1783 was not, on account of its peculiar character, abrogated by the war, Mr. Adams not only reasserts, but alleges to have obtained, when first suggested by him at Ghent, the unanimous assent of the American mission. The proof of this allegation appears to be inferred from the signature, by all that mission, of a note, to the British ministers, of the 10th of November, in which that principle was partially adopted. It has already been seen, even from the avowal of Mr. Adams himself, that the paragraph, offered by Mr. Clay, admitting that doctrine, was a substitute to a proposition which the minority had opposed. To adopt, partially, in the spirit of compromise, a doctrine, as a pretext to preserve the fishing privilege and to get rid of a proposition confirmative of the British right to the navigation of the Mississippi, cannot fairly be considered as an unanimous acknowledgment by the American mission, of the orthodoxy of that doctrine. The constitution of the United States was, avowedly, the result of compromise, and thence some, at least of those who signed that instrument, must necessarily have subscribed to provisions which they did not desire, and to opinions which they did not approve. The inference of Mr. Adams is, therefore, not correct. I do not recollect (indeed, that any member of the mission, excepting Mr. Adams himself, appeared to be a very zealous believer in that doctrine. Even Mr. Gallatin, in his separate letter of the 25th of December, 1814, speaks only of this doctrine as one that had been assumed. Sure it is that the minority consented to admit that doctrine as an expedient only to prevent the proposition, already decided on by the majority, from constiuting an article of our project. So far and no farther were the minority willing to go in adopting that doctrine, but whenever it was proposed to sanction the British right to navigate the Mississippi, they uniformly resisted it. In Mr. Russell's separate Report to the Secretary of State (App., p. 150) he expressed his entire dissent from Mr. Adams' view, and stated that in his opinion the point was not tenable. The opinions of other members of the Commission to the same effect might be referred to, although the point was adopted by the Commission as a weapon for negotiation.

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In consequence of the decision of the Commission, the American note of the 10th November, 1814, claimed in regard to the fisheries that (App., p. 138)—

From their nature, and from the peculiar character of the treaty of 1783, by which they were recognised, no further stipulation has been deemed necessary by the government of the United States to entitle them to the full enjoyment of all of them.

The British Commissioners challenged this contention at once, and on every occasion when it was put forward. In his despatch of the 30th October, 1815, Lord Bathurst refers to it in the following terms (British Case, App., p. 69):

A pretension of this kind was certainly intimated on a former occasion, but in a manner so obscure that His Majesty's Government were not enabled even to conjecture the grounds upon which it could be supported.

In 1815 Mr. Adams made an elaborate presentment of his argument (British Case, App., p. 64) in the despatches exchanged with Lord Bathurst and Lord Castlereagh, and it is from that time, that the full claim of the United States on this point must be taken to have been adopted by the Government of that country. It has been invariably rejected by Great Britain on every occasion on which it has been raised.

FORM OF THE TREATY OF 1783 INCONSISTENT WITH UNITED STATES

CONTENTION.

It is further submitted that the form of the treaty of 1783, and of the preliminary articles, is altogether inconsistent with the view of the United States. They contain no suggestion of partition. In form they constitute a relinquishment by the King of England of his claim to "the Government property and territorial rights" of the areas constituting the thirteen United States, and nothing more. There is no reference to the rights of Great Britain over the remaining portions of North America, nor any agreement by the United States to concur in the retention of those areas by Great Britain. The sovereignty of the King of England is assumed to continue over the whole of the British North American possessions with the exception of those parts which are specifically dealt with in article 1, that is, the territories of the thirteen States as defined in that and the subsequent article. The provision in regard to the fisheries, recognises the continuance of the right of the United States to fish in the high seas, but the liberty to fish in British waters is conceded in different terms; it is not treated as a continuance of an existing right, but is a fresh grant made by and dependent on the treaty. It has already been pointed out, that the distinction between a right" and a "liberty" was present to the minds

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of the negotiators in 1782. (Ante, p. 17.) The representatives of the United States refused to agree to the use of the term "liberty in regard to the sea fishery, which they claimed as a right in common with other nations, but they accepted it in regard to the fisheries in British waters, which they took only as a concession.

MR. POMEROY.

The point has been much discussed in America, and it is stated in a convenient form in the following extracts from the opinions of two writers who have examined the matter in some detail. Professor Pomeroy, in an article in the "American Law Review," (1871, vol. v, p. 389), on the North-Eastern Fisheries, speaks of the partition theory in the following terms:

The analogy suggested between the treaty of 1783 and a partition among co-owners of their lands and the rights issuing therefrom previously held in common, is more fanciful than sound. That treaty created and conferred a liberty, and did not merely recognize a subsisting right, to fish in the Canadian territorial waters. This must be conceded at the outset, and our further discussion will be based upon the concession.

MR. HENDERSON.

Mr. John B. Henderson, in his "American Diplomatic Questions " published in 1901, says:

The American commissioners went still farther to substantiate their contention that the inshore fisheries of Canada and the right to use Canadian shores for curing and drying fish belonged to the United States as an inviolable right. They maintained that as these liberties of fishing were not created, but merely defined and recorded by the third article of the Paris treaty, that article, like all treaty clauses pertaining to matters of partition or boundaries or territory, was of that particular class of treaty articles which is permanent and not affected by subsequent suspension of friendly relations between the parties. Thus they considered their position doubly strengthened, and beyond question correct.

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The arguments of Mr. Adams and the members of the commission who supported him were clearly unsound. While British colonists, the Americans certainly possessed all the rights of other English subjects in British territorial waters, and shared with them the obligations and duties which such possession imposed. These obligations had called for the protection of the fisheries against French aggressions, and the American colonists answered the call as a duty, and performed it well. After the war of independence, England retained Nova Scotia, Newfoundland, and Labrador, and as an inseparable condition the jurisdiction over their marginal belts of ocean; the Americans ceased to be British subjects, and were at once relieved of all duties and obligations to defend English territory or protect English waters, and in a like manner they were

certainly deprived of the privileges of ownership over such alien territory and waters. Had the contention of Mr. Adams been sound, the United States with equal justice could have pressed a claim for possession of Quebec or Halifax, for by the "common sword and mingled blood of Americans and Englishmen " those strongholds were won and defended. By the same argument the English could have claimed the right to navigate the Mississippi River, which had been conceded to them by the treaty of 1783, and which Mr. Clay (one of the commissioners at Ghent) declared to be forfeited by the War of 1812.

Again, had the United States an inherent and natural right to the inshore fisheries of Canada, and to the perpetual use of its shores, why had these shore privileges been limited by the treaty of Paris? Why had the United States accepted the privilege of curing and drying fish in Nova Scotia and Labrador, and relinquished it in Newfoundland? If American citizens had been entitled as of right to use a part of the Canadian coast, they were equally entitled to use all of it. On the Newfoundland coast, where shore privileges were most desired, and where long usage would have set up an easement or prescriptive title fully as well as to the Nova Scotia or Labrador coast, Americans had been denied all landing privileges.

Furthermore, a review of the instructions of Congress to the commissioners, who negotiated the treaty of Paris, develops the fact that it had not been the intention or object of the United States Government to insist upon a continuance of the inshore fisheries which had formerly been enjoyed as a right. Congress did insist on the right to fish on the "Banks of Newfoundland and other fisheries in the American seas, anywhere excepting within the distance of three leagues of the shores of the territory remaining to Great Britain at the close of the war, if a nearer distance cannot be obtained by negotiation." A full expression of the policy of the government in 1782 is given in a report of a committee of Congress on certain resolutions adopted by the legislature of Massachusetts touching the

fisheries (1781). An elaborate argument is there set forth to 22 demonstrate the freedom of the high seas, and to prove that

the Bank fishery may not be properly appropriated by any power. These Banks, "the nearest point of which is thirty-five leagues distant from Cape Race, are too far advanced in the Atlantic to be a dependence of the shores." Thus a distinction was at that time made between the Bank and the shore fishery. All expressions of Congress signifying a determination to retain the fisheries, at all hazards, refer only to the open sea fisheries; for at that period of uncertainty it was feared that England might even refuse to yield her pretended sovereignty over the Banks. The spirit of John Adams' instructions in 1782, as gathered from congressional actions previously taken upon the subject, was to insist as a right upon the freedom of the high seas for American fishermen, and to secure for them by negotiation the largest possible inshore privileges. Finally, it will be noted that in the third article of the treaty itself the word "right" is used in connection with the Bank and deep sea fishery, and the word "liberty " with reference to the shore fishery.

MR. WEBSTER.

These opinions are enforced by the authority of Mr. Daniel Webster. In a draft of a paper he was preparing in 1852 he wrote as follows (United States Case, App., p. 531) :

The undersigned now takes leave to draw Mr. Crampton's attention to a more general consideration. He has already observed that from the first, this Government has regarded a distinction which is thought to be fundamental and of much importance, between rights and liberties, or privileges. This distinction pervades the whole of the third Article of the Treaty of 1783.

By that article the right, not the liberty or the privilege, but the right to take fish of every kind on the Grand Bank & on all other Banks of Newfoundland; is expressly recognized by the Crown of England, and then it is further declared also in the Gulf of St. Lawrence and at all other places in the sea, where the inhabitants of both countries used at any time heretofore to fish."

This plainly is the admission of a Common right, founded on a Common origin, and standing in a Common usage.

But then the Treaty proceeds to declare, that "the inhabitants of the United States shall have liberty to take fish of every kind on such part of the Coast of Newfoundland as British fishermen shall use; (but not to dry or cure the same on that island) and also on the coasts, bays and creeks of all other of his Britannic Majesty's dominions in America; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors and creeks of Nova Scotia, Magdalen Islands and Labrador, but so long as the same shall remain unsettled; but so soon as the same or either of them shall be settled, it shall not be lawful for said fishermen to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, proprietors or possessors of the ground."

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It is admitted that this is a liberty held by the inhabitants of the United States by concession and not exempted from abrogation by war.

In Mr. Webster's view, therefore, the United States obtained access to the British coast fisheries by concession of a liberty, and not in virtue of joint property.

EFFECT OF WAR OF 1812.

But whatever view may be taken by the Tribunal of the contention of the United States on the question of partition, if, indeed, it be thought necessary to come to any decision at all on that point, it is submitted that the position was completely changed in 1812.

Great Britain from the first declared that the liberties of fishing, and drying and curing fish, within British territories, conceded in 1783, were at an end when once the war of that year broke out. During the continuance of that war American fishermen could not resort to the British waters; and at the first meeting at Ghent on the 8th August, 1814, the British Commissioners made a formal declaration

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