those of the continent as those of the islands situated in the Gulf of St. Lawrence" and outside of said Gulf" but at the distance of fifteen leagues from the coasts of the Island of Cape Breton." By reference to Article V of the Treaty of Paris (1763) between Great Britain and France, it will be seen that this suggestion with respect to the three leagues and fifteen leagues limit of exclusion was based upon a similar limitation established by that treaty upon the French fishing rights.

The American Commissioners refused to consider any such limitations and the suggestion was abandoned by Great Britain for the reason, as stated by Mr. Richard Oswald, commissioner on the part of Great Britain in his letter of November 30, 1782, reporting the conclusion of the negotiations to his Government, that

If we had not given way in the article of the fishery, we should have had no treaty at all, Mr. Adams having declared that he would never put his hand to any treaty, if the restraints regarding the three leagues and fifteen leagues were not dispensed with, as well as denying his countrymen the privilege of drying fish on the unsettled parts of Nova Scotia."

The agreement finally arrived at appears in the treaty as Article III and is as follows:

It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all the other banks of Newfoundland; also in the Gulph of Saint Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish. And also 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, harbours and creeks of Nova Scotia, Magdalen Islands, and Labrador, 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 the said fishermen to dry or cure fish at such settlements, without a previous agreement for that purpose with the inhabitants, proprietors or possessors of the ground.

The first clause of this article relating to the off-shore fisheries is in almost the identical language of the two proposals originally agreed upon by the British Commissioner, except that here all reference to the British rights in these fisheries is omitted. The American rights

are recognized, however, as the continuation of pre-existing rights"shall continue to enjoy unmolested" can have no different meaning—and instead of the limitation of three leagues or fifteen leagues from the coast proposed by Great Britain there is no limit of exclusion whatsoever.

This clause of the article is of particular importance inasmuch as Great Britain has never asserted that the right of the United States therein referred to was not of a permanent character, and has never denied that these provisions are still in force; on the contrary it will appear later that Great Britain has admitted that when this treaty was made she had no exclusive jurisdiction or right in such fisheries and that the United States as an independent nation would have been equally entitled to their use and enjoyment independently of any treaty provisions."

war.

The remaining portion or second clause of this article applies only to the inshore or coast fisheries and does not require particular attention at this time because it was superseded by the provisions of the treaty of 1818 and its relation to that treaty is considered later. For the present it is sufficient to note with respect to this second clause of the article that after the War of 1812 Great Britain asserted and the United States denied that these provisions were abrogated by that This question and its bearing on the present case may more conveniently be considered in connection with the negotiations for the treaty of peace at the close of that war and the discussions leading up to the treaty of 1818, which are hereinafter reviewed. It will there appear that this question was not settled by the treaty of peace of 1814 and was still unsettled when the treaty of 1818 was entered into, and that it furnished the grounds for the differences which are referred to in the opening clause of Article 1 of that treaty, and in consequence of which that Article was negotiated.

a Appendix, p. 276.

THE CONTROVERSY AS TO THE EFFECT OF THE WAR OF 1812 UPON THE FISHERIES ARTICLE OF THE TREATY OF 1783.

Negotiations for the Treaty of Ghent.

No question with respect to the fisheries article of the treaty of 1783 between the United States and Great Britain or the use of these fisheries under it arose until the close of the War of 1812 when Great Britain took the position in the negotiations leading up to the treaty of peace signed at Ghent on December 24, 1814, that the provisions of the second clause of that article, relating to the inshore or coast fisheries, were abrogated by that war and that the future use of such fisheries by the United States would depend upon new treaty stipulations. The United States refused to assent to this proposition and contended that there was no justification for discriminating against this particular portion of the treaty; and that, like any other provision of the treaty which was intended to secure to the United States the continued enjoyment of pre-existing rights upon the partition of the British North American Empire at the close of the Revolution, this particular provision survived the War of 1812, and consequently that no declaration or provision in the new treaty was required to continue it in force.

At the opening conference in these negotiations on August 8, 1814, the British Plenipotentiaries who were Lord Gambier, Henry Goulburn and William Adams, after enumerating the subjects proposed by them for discussion and after asking whether the American Plenipotentiaries were instructed to enter into negotiations on these subjects, stated that

before they desired any answer they felt it right to communicate the intentions of their Government as to the North American Fisheries, viz: that the British Government did not intend to grant to the United States gratuitously the privileges formerly granted by treaty to them of fishing within the limits of the British Sovereignty and of using the shores of the British territories for purposes connected with the fisheries."

In response to this inquiry, the United States Plenipotentiaries who were John Quincy Adams, James A. Bayard, Henry Clay, Jonathan Russell and Albert Gallatin, informed the British Plenipo

tentiaries, at a conference held on August 9th, that the point raised by them with respect to the fisheries was not provided for in their instructions." The American Plenipotentiaries were forbidden by their instructions to permit the right of the United States to the enjoyment of the fisheries under the treaty of 1783 to be brought into question, and in consequence of these instructions they declined to entertain any suggestion that a new basis for the enjoyment of these fisheries be adopted or that their rights under the former treaty be continued conditionally or in exchange for some equivalent, and they explicitly declined to enter into any stipulation which could be construed as a renunciation either directly or indirectly of their rights under that treaty. The negotiations on their part were conducted throughout on the basis that the fisheries provisions under consideration had not been abrogated by the War of 1812. Notice of the position of each Government on this subject seems to have been given to the other at the second conference, held on August 9, 1814. No official record of the discussion on the subject at that conference is found further than appears from two brief references to it in the notes subsequently exchanged between the Plenipotentiaries. In their note of October 21, 1814, to the American Plenipotentiaries the British Plenipotentiaries said:

On the subject of the fisheries the undersigned expressed, with so much frankness, at the conference already referred to the views of their Government, that they consider any further observation on that topic as unnecessary at the present time.

The American Plenipotentiaries in their note of November 10th, wrote in response:

In answer to the declaration made by the British Plenipotentiaries respecting the fisheries, the undersigned, referring to what passed in the conference of the 9th August, can only say that they are not authorized to bring into discussion any of the rights or liberties which the United States have heretofore enjoyed in relation thereto. From their nature, and from the peculiar character of the treaty of 1783, by which they were recognized, 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 position of the United States as presented at this conference and as adhered to throughout the negotiations is stated in the report

made by the American Plenipotentiaries to their Government after the close of the negotiations as follows:

Our instructions had forbidden us to suffer our right to the fisheries to be brought into discussion, and had not authorized us to make any distinction in the several provisions of the third article of the treaty of 1783, or between that article and any other of the same treaty. We had no equivalent to offer for a new recognition of our right to any part of the fisheries, and we had no power to grant any equivalent which might be asked for it by the British Government. We contended that the whole treaty of 1783 must be considered as one entire and permanent compact, not liable, like ordinary treaties, to be abrogated by a subsequent war between the parties to it; as an instrument recognising the rights and liberties enjoyed by the people of the United States as an independent nation, and containing the terms and conditions on which the two parts of one empire had mutually agreed, thenceforth, to constitute two distinct and separate nations. In consenting by that treaty, that a part of the North American continent should remain subject to the British jurisdiction, the people of the United States had reserved to themselves the liberty, which they had ever before enjoyed, of fishing upon that part of its coasts, and of drying and curing fish upon the shores, and this reservation had been agreed to by the other contracting party. We saw not why this liberty, then no new grant, but the mere recognition of a prior right always enjoyed, should be forfeited by war, any more than any other of the rights of our national independence; or why we should need a new stipulation for its enjoyment more than we needed a new article to declare that the King of Great Britain treated with us as free, sovereign, and independent States. We stated this principle in general terms to the British plenipotentiaries, in the note, which we sent to them with our projet of the treaty, and we alleged it as the ground upon which no new stipulation was deemed by our Government necessary to secure to the people of the United States all the rights and liberties stipulated in their favor by the treaty of 1783.a

No other reference to the fisheries is found in the protocols of the conferences or in the correspondence between the British and American Plenipotentiaries until the closing days of the negotiations. Meanwhile, however, Great Britain had brought into the negotiations a proposal for renewing and enlarging the privileges which British subjects had enjoyed in the navigation of the Mississippi River under Article VIII of the treaty of 1783, which Article was as follows:

The navigation of the Mississippi River, from its source to the ocean, shall forever remain free and open to the subjects of Great Britain and the citizens of the United States.