that the British Government did not intend to grant to the United States, gratuitously, the privileges formerly granted to them by treaty, of fishing within the limits of British sovereignty, and of using the shores of the British territories for purposes connected with the fisheries.

In the course of the negotiations various proposals were made in regard to the fisheries, but Great Britain never departed from this attitude, and two days before the treaty was agreed on, the same declaration was expressly repeated by the British Commissioners. (United States Case, App., p. 256.)

In view of these facts, it can hardly be maintained that the question was left open; if by that phrase is meant that Great Britain reserved it for future discussion. Her view was that the fishing rights were at an end; she was in exclusive possession of the fisheries, and she had no more to gain by discussion. Immediately on the termination of war, the British naval officers in command in the colonial waters, took steps to prevent Americans from resuming the liberties they had enjoyed under the treaty of 1783. Ships were ordered to watch the coasts and to warn off American fishing-vessels.

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BRITISH ACTION, 1815-18.

On the 17th June, 1815, Lord Bathurst issued instructions to the Governor of Newfoundland. (British Case, App., p. 63.) He stated that the American right of fishing within British jurisdiction was at an end, and that American fishing-vessels were to be prevented from using British territory for purposes connected with the fishery, and were to be excluded from the bays, harbours, rivers, creeks, and inlets of all His Majesty's possessions.

He made an exception as a matter of indulgence, for the season which had then already begun, in the case of fishermen of the United States who, through ignorance of the circumstances which affected the question, had already commenced a fishery similar to that carried on by them previous to the late war, and had occupied their former establishments, which could not be suddenly abandoned without considerable loss. These fishermen, however, were to be informed of the real state of affairs, and it was to be made clear to them that they were not in any future season to expect a continuance of the same indulgence.

The action of the naval commanders was the subject of complaint by Mr. Monroe to Mr. Baker, the British representative at Washington. The interview is recorded in a despatch from Mr. Baker to Lord Castlereagh, dated the 19th July, 1815, in the following passage (App., p. 174):

He then proceeded to observe that he had a complaint to make respecting the interruption which had been given to several American

vessels fishing off the coast of British North American Provinces, which had been ordered away by one of His Majesty's ships of war, and warned by a notice endorsed on their papers not to return. This he said was a violation of a clear right which the United States possessed under the Treaty of 1783, and which the American Government conceived to be still in force, owing to the peculiar character of that Treaty.

In my answer I reminded him of the firm and decided language which had been held by Great Britain throughout the negotiations at Ghent with respect to the supposed continuance of the right of the United States to catch and dry fish within His Majesty's jurisdiction in North America; that this privilege had been distinctly and repeatedly stated to the American Commissioners to have been purely of a conventional nature, to have therefore ceased on the war; and that as it had not been renewed by the late Treaty of Peace, it could not be considered at present in existence. I remarked that the doctrine which had been advanced by the American Commissioners was judged equally novel and extraordinary, and that no satisfactory reasons had ever been adduced in support of it. Mr. Monroe did not press the subject further, and led me to expect that he would make a written communication respecting it,

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I received this morning the note respecting the interruption to the fishery, a copy of which is enclosed. It does not, it will be perceived embrace the wide subject of the alleged right, as I had reason to believe would have been the case from what had passed, but is confined to much narrower ground. It states the instance of one vessel fishing in longitude 65° 20′, latitude 42° 41', and said to have been distant about 45 miles from Cape Sable, which was ordered away by His Majesty's brig Jaseur, as well as the other American vessels in sight, and warned by an endorsement on her papers not to come within sixty miles of the coast. Mr. Monroe states this measure to be altogether incompatible with the rights of the United States, and therefore presumes it has not been authorized by His Majesty's Government. Both the distances mentioned it will be observed, are without His Majesty's maritime jurisdiction.

The particular action of the “Jaseur" of which complaint was made could not be justified. Great Britain did not claim to have exclusive rights on the high seas.

The matter was then taken up by Mr. Adams in London, and in his letter of the 25th September, 1815, to Lord Bathurst (British Case, App., p. 66) he first set out the argument on which he relied to establish the claim of the United States as of right, and in the concluding paragraph advanced some considerations of another kind to show the expediency of making a concession.

Lord Bathurst, in reply (British Case, App., p. 69), rejected the claim in most absolute terms so far as it was made as of right, but stated, in a passage which has been cited in the United States Case (p. 33), that Great Britain was willing to make some concession in view of the considerations of hardship and expediency which had been urged by Mr. Adams.

It is from this point that the negotiations commenced which terminated in the treaty of 1818. The matter does not appear to be of importance, but the statement in the United States Case (p. 22) that “Great Britain made overtures to the United States for a new treaty arrangement" is not established by the documents to which attention has been called. Great Britain was in possession of the fisheries, and was exercising the right, she claimed, to exclude American fishermen from them. The request for an alteration of that position necessarily came from the United States.

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During the greater part of the season of 1816 American fishingvessels were prevented from fishing within British waters, but when Mr. Bagot took up the negotiations at Washington the instructions were for the time relaxed in order to prevent any occurrence which might disturb the harmony of the two States pending the discussion. (App., p. 175.)

In the early part of 1817 it appeared that no agreement was likely to be reached, and Mr. Bagot was instructed to inform the Government of the United States that (App., p. 176) —

the orders for the exclusion of American fishermen from our territorial jurisdiction in North America and Newfoundland are in full force, and will continue to be acted on.

Mr. Adams, however, appealed to the Secretary of State in London (United States Case, App., p. 294), and the strict enforcement of the orders referred to was modified during that season. But pending the receipt of those orders seizures had already been made by His Majesty's ship "Dee." (British Case, App., p. 79.)

In 1818 the negotiations in London were commenced, and the orders were again modified for the time.

Great Britain throughout these discussions contended that the fishing liberties were at an end when war broke out in 1812; she declared, before peace was made, that she would not allow those liberties to be exercised in the future except on her own terms and subject to her own conditions; she was in exclusive possession of the territories and waters to which the liberties related; and on the restoration of peace she insisted on that exclusive possession until a new, and more Jimited concession, was granted in 1818.

COMPARISON OF CONCESSIONS OF 1783 AND 1818.

The Case of the United States (p. 60) contains the following passage in reference to the treaty of 1818:

It is evident, therefore, that the liberties referred to in the introductory clause of the new article were the liberties claimed by the United States under the second clause of Article III of the treaty of 1783, and it will further appear from an examination of the negotiations and of the stipulations of the new article that, so far as

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it reserves liberties in these fisheries to the inhabitants of the United States, the liberties so reserved were intended to be the identical liberties to which the American fishermen were previously entitled under the second clause of Article III of the treaty of 1783. Referring to the negotiations which preceded the treaty of 1818, the United States Case (p. 61) says:

The question of the extent of the coasts on which such liberties were to be reserved was the subject of discussion in the negotiations, but it was settled beyond the possibility of question that the fishing rights to be exercised on such coasts were to be the same as those exercised on the same coasts under the provisions of the treaty of 1783.

In reply it may be said that it cannot be possible that the liberties of the treaty of 1818" were intended to be the identical liberties" of the treaty of 1783, for some of the liberties of the latter treaty were entirely new:

1. The treaty of 1783 gave liberty to take fish—

on such part of the coast of Newfoundland as British fishermen shall

use;

whereas the treaty of 1818 gave liberty to fish on certain specified parts of the Newfoundland coast, whether British fishermen used them or not.

2. The treaty of 1783, in giving liberty to fish on the coast of Newfoundland, expressly said, “but not to dry or cure the same on that island; " whereas the treaty of 1818 gave liberty to dry and cure fish on part of the southern coast of that island.

The lack of continuity between the two treaties appears, moreover, in the specific and persistent refusal of the British Government to recognise the existence of the earlier treaty when negotiating the later. Down to the very last, the United States endeavoured to move Great Britain from this attitude. In the draft of the article for the new treaty the United States Commissioners proposed that the language to be employed should indicate continuity. (United States Case, App., p. 310.)

It is agreed

that the inhabitants of the said United States shall continue to enjoy unmolested, &c.

But the British Commissioners declined to assent, and the language of the treaty is

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It is agreed

States shall have, &c.

that the inhabitants of the said United

Perusal of the correspondence between Lord Bathurst and Mr. Adams during the negotiations will show :

(1.) That Mr. Adams urged the continued existence of the liberties of the 1783 treaty, and that Lord Bathurst explicitly refused to concur in that view, or to concede anything in deference to it.

(2.) That Mr. Adams made appeal to those―

principles of benevolence and humanity which it is the highest glory of a great and powerful nation to respect. (British Case, App., p. 68.)

And also to those (British Case, App., p. 69.)—

advantages to other British interests, namely, the supplying to American fishermen of "the means of remittance and payment for the productions of British industry and ingenuity," and, "pouring into her lap a great portion of the profits of their hardy and laborious industry."

And that, moved by these appeals, Lord Bathurst gave way, saying that Great Britain was (British Case, App., p. 71.)

by no means insensible to some of those considerations with which the letter of the American Minister concludes.

It is submitted, therefore, that the liberties of the treaty of 1818 were not, and could not have been intended to be, the "identical liberties" which had been granted by the treaty of 1783.

It is clear from the records that the treaty of 1818 was not a recognition of rights, which the fishermen of the United States possessed as subjects of the Crown before the declaration of independence. That contention had been expressly put forward, and had been expressly rejected. It is impossible to hold that Great Britain entered into a contract on a basis which she had repudiated on every occasion on which it had been set up. Whatever may have been the case in 1782, and on that His Majesty's Government have already submitted their observations, the treaty of 1818 was a new arrangement. It must stand by itself and be construed according to the terms in which it is framed.

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British Statute of 1819.

The United States Case, as an argument against the existence of the British right of regulation of the coast-fisheries, refers to the British statute of 1819, passed shortly after the date of the treaty, and argues that that enactment was intended (United States Case, p. 72.)—

to authorize the adoption of regulations for the purpose of preventing interference by British subjects with the fishing liberties which were secured to the American fishermen by the treaty and which had been denied them since the War of 1812.

This interpretation of the meaning of the act is confirmed by the action of the British Government in giving it practical application, and an examination of the regulations adopted by orders in council under this section of the act will show that in every instance such regulations have applied to British subjects and not to American fishermen and that this section of the act has never been interpreted in such orders as authorizing the imposition of regulations upon American fishermen.