erty" to take fish on the coast of Newfoundland and on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America, and also the "liberty" to dry and cure fish, subject to the conditions stated in the article.

at Ghent.

When the plenipotentiaries of the United States and Great Britain The Fisheries and met at Ghent on the 8th of August, 1814, the the Mississippi British plenipotentiaries, after proposing three points for discussion, said that, before they desired an answer on these points, "they felt it incumbent upon them to declare that the British Government did not deny the right of the Americans to fish generally, or in the open seas; but that the privileges formerly granted by treaty to the United States of fishing within the limits of the British jurisdiction, and of landing and drying fish on the shores of the British territories, would not be renewed without an equivalent." What they considered to be exclusively British waters they did not state." On the 19th of August they also brought forward, as a subject of discussion, the free navigation of the Mississippi, which had been secured to British subjects by the treaty of peace of 1783. On the 10th of November the American plenipotentiaries submitted to the British plenipotentiaries a project of a treaty; and in the note that accompanied it they said they were "not authorized to bring into discussion any of the rights or liberties" which the United States had theretofore enjoyed in relation to the fisheries. The project contained nothing either as to the fisheries or the Mississippi; but the British plenipotentiaries, in returning it, inserted in one of the articles relating to the boundary westward from the Lake of the Woods an amendment to the effect that British subjects should have and enjoy the free navigation of that river. The American plenipotentiaries offered to enlarge this amendment by making it also provide that the inhabitants of the United States should "continue to enjoy the liberty to take, dry, and cure fish in places within the exclusive jurisdiction of Great Britain," or else to omit the article altogether. In reply the British plenipotentiaries proposed, while retaining the article, to substitute for the previous amendments a stipulation embracing two clauses, one to the effect that His Britannic Majesty would enter into negotiations with the United States for the preservation to the latter of the "liberty" in the fisheries, as stipulated by the treaty of 1783, in consideration of " a fair equivalent “ to be granted to the United States " for such liberty as aforesaid;" and the other to the effect that the United States would enter into negotiations as to the terms on which the navigation of the Mississippi, as stipulated in the treaty of 1783, should be preserved to His Britannic Majesty. The American plenipotentiaries answered that a stipula

a Am. State Papers, For. Rel. III. 705. b Id. 710.

c Id. 738.

* Id. 743.

d Id. 742.

"

tion that the parties would in the future negotiate on the subjects in question was unnecessary; they were willing to be silent in regard to both of them or to agree to an engagement, couched in general terms, so as to embrace all subjects of difference not yet adjusted, or so expressed as not to imply the abandonment of any right claimed by the United States. Under these circumstances the British plenipotentiaries withdrew their proposed stipulation, saying: "The undersigned, returning to the declaration made by them on the 8th of August, that the privileges of fishing within the limits of the British sovereignty, and of using the British territories for purposes connected with the fisheries, were what Great Britain did not intend to grant without an equivalent, are not desirous of introducing any article on the subject. With a view of removing what they consider as the only objection to the immediate conclusion of the treaty, the undersigned agree to adopt the proposal made by the American plenipotentiaries of omitting the 8th article altogether." Thus it came about that

...

Position as

to

"Rights" and

"Liberties."

the treaty concluded at Ghent on December 24, 1814, contained no mention either of the fisheries or of the navigation of the Mississippi. On the 19th of June, 1815, an American fishing vessel, engaged in Lord Bathurst's the cod fishery, was, when about forty-five miles from Cape Sable, warned by the commander of the British sloop Jaseur not to come within sixty miles of the coast. This act the British Government disavowed; but Lord Bathurst is reported at the same time to have declared that, while it was not the Government's intention to interrupt American fishermen "in fishing anywhere in the open sea, or without the territorial jurisdiction, a marine league from the shore," it "could not permit the vessels of the United States to fish within the creeks and close upon the shores of the British territories." John Quincy Adams, who was then minister of the United States in London, maintained that the treaty of peace of 1783" was not, in its general provisions, one of those which, by the common understanding and usage of civilized nations, is or can be considered as annulled by a subsequent war between the same parties."

Lord Bathurst replied:

"To a position of this novel nature Great Britain can not accede. She knows of no exception to the rule, that all treaties are put an end to by a subsequent war between the same parties. . . . The treaty of 1783, like many others, contained provisions of different

a Am. State Papers, For. Rel. III, 744.

Am. State Papers, For. Rel. III. 744, 745; J. Q. Adams, The Fisheries and the Mississippi, 54, 58; Gallatin's Writings, I. 646.

Am. State Papers, For. Rel. IV. 349.

d Id. 350.

e Id. 352.

...

characters—some in their own nature irrevocable, and others of a temporary nature. . . The nature of the liberty to fish within British limits, or to use British territory, is essentially different from the right of independence, in all that may reasonably be supposed to regard its intended duration. . . . In the third article [of the treaty of 1782-83], Great Britain acknowledges the right of the United States to take fish on the banks of Newfoundland and other places, from which Great Britain has no right to exclude an independent nation. But they are to have the liberty to cure and dry them in certain unsettled places within His Majesty's territory. If these liberties, thus granted, were to be as perpetual and independent as the rights previously recognized, it is difficult to conceive that the plenipotentiaries of the United States would have admitted a variation of language so adapted to produce a different impression; and, above all, that they should have admitted so strange a restriction of a perpetual and indefeasible right as that with which the article concludes, which leaves a right so practical and so beneficial as this is admitted to be, dependent on the will of British subjects, in their character of inhabitants, proprietors, or possessors of the soil, to prohibit its exercise altogether. It is surely obvious that the word right is, throughout the treaty, used as applicable to what the United States were to enjoy, in virtue of a recognized independence; and the word liberty to what they were to enjoy, as concessions strictly dependent on the treaty itself." a

This position Great Britain continued to maintain. From 1815 to Controversies of 1818 orders were issued by the British admiralty to 1815-1818. seize American vessels found fishing in British waters, and though these orders were not continuously enforced, but were at various times and for various periods, generally with a view to negotiation, suspended, many seizures were actually made, and much ill feeling was engendered. "

"The nature of the rights and liberties consisted in the free participation in a fishery. That fishery, covering the bottom of the banks which surround the island of Newfoundland, the coasts of New England, Nova Scotia, the Gulf of Saint Lawrence, and Labrador, furnishes the richest treasure and the most beneficent tribute that ocean pays to earth on this terraqueous globe. By the pleasure of the Creator of earth and seas, it had been constituted in its physical nature one fishery, extending in the open seas around that island, to little less than five degrees of latitude from the coast, spreading along the whole northern coast of this continent and insinuating itself into all the bays, creeks, and harbors to the very borders of the shores.

a Am. State Papers, For. Rel. IV. 355, 356.

Memoirs of J. Q. Adams, III. 119, 265; IV. 61, March 18, 1818.

For the full enjoyment of an equal share in this fishery it was necessary to have a nearly general access to every part of it, the habits of the game which it pursues being so far migratory that they were found at different periods most abundant in different places, sometimes populating the banks and at others swarming close upon the shores. The latter portion of the fishery had, however, always been considered as the most valuable, inasmuch as it afforded the means of drying and curing the fish immediately after they were caught, which could not be effected upon the banks.

"By the law of nature this fishery belonged to the inhabitants of the regions in the neighborhood of which it was situated. By the conventional law of Europe it belonged to the European nations which had formed settlements in those regions. France, as the first principal settler in them, had long claimed the exclusive right to it. Great Britain, moved in no small degree by the value of the fishery itself, had made the conquest of all those regions upon France, and had limited by treaty, within a narrow compass, the right of France to any share in the fishery. Spain, upon some claim of prior discovery, had for some time enjoyed a share of the fishery on the banks, but at the last treaty of peace prior to the American Revolution had expressly renounced it.

"At the commencement of the American Revolution, therefore, this fishery belonged exclusively to the British nation, subject to a certain limited participation in it reserved by treaty stipulations to

France."

Mr. J. Q. Adams, The Fisheries and the Mississippi, 184.

"By the third article of the treaty of 1783 it was agreed that the people of the United States should continue to enjoy the fisheries of Newfoundland and the Bay of Saint Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time theretofore to fish; and also that they should have certain fishing liberties on all the fishing coast within the British jurisdiction of Nova Scotia, Magdalen Islands, and Labrador. The title by which the United States held those fishing rights and liberties was the same. It was the possessory use of the right . . . at any time theretofore, as British subjects, and the acknowledgment by Great Britain of its continuance in the people of the United States after the treaty of separation. It was a national right; and, therefore, as much a right, though not so immediate an interest, to the people of Ohio and Kentucky, ay, and to the people of Louisiana, after they became a part of the people of the United States, as it was to the people of Massachusetts and Maine."

Mr. J. Q. Adams, The Fisheries and the Mississippi, 96.

"The continuance of the fishing liberty was the great object of the article [the third of the treaty of 1783]; and the language of the article was accommodated to the severance of the jurisdictions, which was consummated by the same instrument. It was coinstantaneous with the severance of the jurisdiction itself, and was no more a grant from Great Britain than the right acknowledged in the other part of the article, or than the independence of the United States acknowledged in the first article. It was a continuance of possessions enjoyed before; and at the same moment and by the same act under which the United States acknowledged those coasts and shores as being under a foreign jurisdiction, Great Britain recognized the liberty of the people of the United States to use them for purposes connected with the fisheries."

Mr. J. Q. Adams, The Fisheries and the Mississippi, 188; adopted in Lyman's Diplomacy of the United States (2nd ed.), I. 117, which says: "The treaty of '83 was an instrument of a peculiar character. It differed in its most essential characteristics from most of the treaties made between nations. It was a treaty of partition;—a treaty to ascertain the boundaries and the right of the nations the mother country acknowledged to be created by that instrument."

"That this was the understanding of the article by the British Government as well as by the American negotiators is apparent to demonstration by the debates in Parliament upon the preliminary articles. It was made, in both houses, one of the great objections to the treaty. In the House of Commons, Lord North . . . said: · By the third article we have, in our spirit of reciprocity, given the Americans an unlimited right to take fish of every kind on the Great Bank and on all the other banks of Newfoundland. But this was not sufficient. We have also given them the right of fishing in the Gulf of Saint Lawrence, and at all other places in the sea where they have heretofore enjoyed, through us, the privilege of fishing. They have likewise the power of even partaking of the fishery which we still retain. We have not been content with resigning what we possessed, but even share what we have left.' . . . In this speech the whole article is considered as an improvident concession of British property; nor is there suggested the slightest distinction in the nature of the grant between the right of fishing on the banks and the liberty of the fishery on the coasts. Still more explicit are the words of Lord Loughborough, in the House of Peers. The fishery,' says he, on the shores retained by Britain is, in the next article, not ceded, but recognized as a right inherent in the Americans, which, though no longer British subjects, they are to continue to enjoy unmolested, no right on the other hand being reserved to British subjects to approach their shores, for the purpose of fishing, in this reciprocal treaty.""

Mr. J. Q. Adams, The Fisheries and the Mississippi, 189, 190.