the inhabitants, within those parts which had become settled since the peace of 1783.

"In discussing this question, the American minister in London, Mr. J. Q. Adams, stated, that from the time the settlement in North America, constituting the United States, was made, until their separation from Great Britain and their establishment as distinct sovereignties, these liberties of fishing, and of drying and curing fish, had been enjoyed by them, in common with the other subjects of the British empire. In point of principle they were pre-eminently entitled to the enjoyment; and, in point of fact, they had enjoyed more of them than any other portion of the empire; their settlement of the neighboring country having naturally led to the discovery and improvement of these fisheries; and their proximity to the places where they were prosecuted, having led them to the discovery of the most advantageous fishing grounds, and given them facilities in the pursuit of their occupation in those regions, which the remoter parts of the empire could not possess. It might be added, that they had contributed their full share, and more than their share, in securing the conquest from France of the provinces on the coasts of which these fisheries were situated.

"It was doubtless upon considerations such as these that an express stipulation was inserted in the treaty of 1783, recognizing the rights and liberties which had always been enjoyed by the people of the United States in these fisheries, and declaring that they should continue to enjoy the right of fishing on the Grand Bank, and other places of common jurisdiction, and have the liberty of fishing, and drying and curing their fish, within the exclusive British jurisdiction on the North American coasts, to which they had been accustomed whilst they formed a part of the British nation. This stipulation was a part of that treaty by which His Majesty acknowledged the United States as free, sovereign, and inpendent States, and that he treated with them as such.

It could not be necessary to prove that this treaty was not, in its general provisions, one of those which, by the common understanding and usage of civilized nations, is considered as annulled by a subsequent war between the same parties. To suppose that it is, would imply the inconsistency and absurdity of a sovereign and independent State, liable to forfeit its right of sovereignty by the act of exercising it on a declaration of war. But the very words of the treaty attested that the sovereignty and independence of the United States were not considered as grants from His Majesty. They were taken and expressed as existing before the treaty was made, and as then only first formally recognized by Great Britain.

"Precisely of the same nature were the rights and liberties in the fisheries. They were, in no respect, grants from the King of Great Britain to the United States; but the acknowledgment of them as rights and liberties enjoyed before the separation of the two countries, and which it was mutually agreed should continue to be enjoyed under the new relations which were to subsist between them, constituted the essence of the article concerning the fisheries. The very peculiarity

of the stipulation was an evidence that it was not, on either side understood or intended as a grant from one sovereign State to another. Had it been so understood, neither could the United States have claimed, nor would Great Britain have granted, gratuitously, any such concession. There was nothing, either in the state of things, or in the disposition of the parties, which could have led to such a stipulation on the part of Great Britain, as on the ground of a grant without an equivalent.

war.

"If the stipulation by the treaty of 1783 was one of the conditions by which His Majesty acknowledged the sovereignty and independence of the United States; if it was the mere recognition of rights and liberties previously existing and enjoyed, it was neither a privilege gratuitously granted, nor liable to be forfeited by the mere existence of a subsequent If it was not forfeited by the war, neither could it be impaired by the declaration of Great Britain at Ghent, that she did not intend to renew the grant. Where there had been no gratuitous concession, there could be none to renew; the rights and liberties of the United States could not be canceled by the declaration of the British intentions. Nothing could abrogate them but a renunciation by the United States themselves."

Lawrence's Wheaton's International Law, page 463; See also Letters of John Adams, vol. x, Works of John Adams, pages, 97, 131, 136, 159, 354, and 403; Opinion C. A. Rodney to President Monroe, Nov. 3, 1818; Monroe MSS., Department of State; referred to in Elliott's Northeastern Fisheries, page 45.

If the British pretension had been insisted on the war would have been continued, as James Monroe's instructions to the American commissioners were imperative that "the fishery rights of American citizens must not be discussed, and if the British demand their surrender all further negotiations must cease."

Finally the commissioners, without inserting any provision with regard to the fisheries, signed the formal treaty known as the treaty of Ghent. The first article of this treaty provided that "all territories, places, and possessions whatsoever taken by either party from the other during the war should be restored without delay." This in itself was an ample refutation of the British claim. The fisheries were a valuable "possession." If the British took them from us by the war, they were obliged by the letter of the treaty to restore them to us without delay.

The war, however, had shown Great Britain that her naval prestige was in danger, and that the chief source of that danger was in the fishing towns of New England. From that moment British statesmen directed their energies to the task of discouraging or destroying the fishing industry of that portion of the United States.

During the next year the British sloop-of-war "Jaseur" sailed along the northeastern fishing grounds, and notified all American fishing vessels to not come within sixty miles of the shore. The British Government, on being notified of this action, expressed disapproval of it, but so many other annoyances were heaped on our fishermen that Richard Rush and Albert Gallatin were sent to England to make a new and permanent convention, which it was hoped would be acceptable to England and enable our fishermen to pursue their occupation undisturbed.

They negotiated the Treaty of 1818, Article I. of which provides :

"WHEREAS differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof, to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed between the high contracting parties that the inhabitants of the said United States shall have, forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Ramea Islands; on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands; on the shore of the Magdalen Islands; and also on the coasts, bays, harbors, and creeks, from Mount Joli, on the southern coast of Labrador, to and through the Straits of Belleisle, and thence northward, indefinitely, along the coast, without prejudice, however, to any of the exclusive rights of the Hudson's Bay Company; and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador; but so soon as the same or any portion thereof shall be settled it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground; and the United States hereby renounce, forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included within the

above-mentioned limits: Provided, however, That the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them."

By this treaty the joint ownership or tenancy in common of the United States was recognized and extended “forever,” in return for certain restrictions of our rights. This was a genuine triumph of American diplomacy.

In a letter addressed to John Quincy Adams, Secretary. of State, on October 20th, 1818, Messrs. Gallatin and Rush said:

"The most difficult part of the negotiation related to the permanence of the right. To obtain the insertion in the body of the convention of a provision declaring that that right should not be abrogated by war was impracticable. All that could be done was to express the article in such manner as would not render the right liable to be thus abrogated. The words 'for ever' were inserted for that purpose. The insertion of the words 'for ever' was strenuously resisted. We declared that we would not agree to any article on the subject unless the words were preserved, or in case they should enter on the procotol a declaration impairing their effect. It will also be perceived that we insisted on the clause by which the United States renounce their right to the fisheries relinquished by the convention, that clause having been omitted in the first British counter-project. We insisted on it with the view, first, of preventing any implication that the fisheries secured to us were a new grant, and of placing the permanence of the rights secured and of those renounced precisely on the same footing; second, of its being expressly stated that our renunciation extended only to the distance of three miles from the coasts. This last point was the more important, as with the exception of the fishing in open boats in certain harbors, it appeared that the fishing ground on the whole coast of Nova Scotia is more than three miles from the shores. It is in that point of view that the privilege of entering the ports for shelter is useful, and it is hoped that with that provision a considerable portion of the actual fisheries on that coast (of Nova Scotia) will, notwithstanding the renunciation, be preserved."

John Quincy Adams, Secretary of State during this period, referring to the Treaty, said:—

"We have gained by the convention of 1818 an adjustment of the contest of our whole principle. The convention restricts the liberties in some small degree, but it enlarges them probably in a degree not less

useful. It has secured the whole coast fishery of every part of the British dominions, except within three marine miles of the shores, with the liberty of using all the harbors for shelter, for repairing damages, and for obtaining wood and water. It has secured the whole participation in the Labrador fisheries, the most important part of the whole, and of which it was at Ghent peculiarly the intention of the British Government at all events to deprive us. The convention has also secured to us the right of drying and curing the fish on a part of the island of Newfoundland, which had not been enjoyed under the treaty of 1783; it has narrowed down the pretensions of exclusive territorial jurisdiction with reference to those fisheries to three marine miles from the shores. Upon the whole I consider this interest as secured by the convention of 1818 in a manner as advantageous as it had been by the treaty of 1783.”

Adams and Russell, page 241.

Hon. Charles Levi Woodbury, in an open letter on the fisheries dispute, published in the American Law Review of May-June, 1887, page 442, speaking of these rights, says:—

"The rights, elaborately defined by treaty, which we possess along the coasts and in the bays, harbors, and ports of British North America, belong as fully to the United States as does the Capitol or the White House at Washington. They are the trophies of the centuries of privation, toil, and bloodshed through which our colonial ancestors secured themselves from foreign influences.

“There is not a foot of British North America, from Lake Superior to the Atlantic, to the winning of which from France our American ancestors did not bear their share in arms. The memories of Lake George, Frontenac, Detroit, Quebec, and Louisbourg are our heirlooms as well as England's. Great Britain's fishing rights, in or adjacent to what is now British North America, were never exclusive. Whatever pertained to the great common of fisheries, whatever enured from the conquest of Canada, equally pertained and enured to us as to her. The treaty of 1783 regulated mutual, joint, and several uses in a part of these old common or acquired fishery rights, and that of 1818 was a partial re-arrangement thereof. In said treaties, no pretension can be found that Great Britain then or ever before had any exclusive ownership over the fisheries of the Northeast."

It is to be noticed that the Treaty of 1783 uses the words “right” and “liberty" apparently as of different meaning. "Right" is used in one clause, "liberty" in the other. John Adams explains how the word liberty got into the Treaty of 1783: "The word right was in the article as agreed to by the British ministers, but they afterwards requested that the word liberty might be substituted instead of right. They said it