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 settlement, without a previous agreement for that purpose with the inhabitants, proprietors or possessors of the ground."

"Rights" and "Liberties."

By this article it was agreed that the people of the United States should continue to enjoy the "right" to take fish on all the banks of Newfoundland and in the Gulf of St. Lawrence, and "at all other places in the sea," where the inhabitants of both countries had been accustomed to fish; and that the inhabitants of the United States should have the "liberty" 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.

Ghent.

When the plenipotentiaries of the United The Fisheries and States and Great Britain met at Ghent on the the Mississippi at 8th of August 1814 the British plenipotentiaries, after proposing three points for discussion, said that, before they desired an answer on those 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 1783.2 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 stipulation that the parties would in the future negoti ate 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

4

Am. State Papers, For. Rel. III. 738. 2 Id. 742.

3 Id. 743.

+ Id. 744.

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 the treaty concluded at Ghent on December 24, 1814, contained no mention either of the fisheries or of the navigation of the Mississippi.

and "Liberties."

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1

On the 19th of June 1815 an American fishing Lord Bathurst's Posi- vessel, engaged in the cod fishery, was, when tion as to "Rights" 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."4 Lord Bathurst replied:

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"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 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 New Foundland and other places, from which Great Britain has no right to exclude an independent nation. But they are to have the

1 Am. State Papers, For. Rel. III. 744, 745.

2 Id. IV. 349.

3 Id. 350.

+ Id. 352.

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.”1

Controversies of 1815-1818.

This position Great Britain continued to maintain. From 1815 to 1818 orders were issued by the British admiralty to 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.2

Such was the condition of things when, on Convention of 1818. October 20, 1818, Albert Gallatin and Richard Rush concluded the convention, the first arti

cle of which reads as follows:

"ARTICLE I.

"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, harbours, 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 Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands on the shores of the Magdalen Islands, and also on the coasts, bays, harbours, and creeks from Mount Joly on the southern coast of Labrador, to

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

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

and through the Streights of Belleisle and thence northwardly indefinitely along the coast, without prejudice however, to any of the exclusive rights of the Hudson Bay Company: And that the American fishermen shall also have liberty forever, to dry and cure fish in any of the unsettled bays, harbours, 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 harbours of his Britannic Majesty's dominions in America not included within the abovementioned limits; Provided however, that the American fishermen shall be admitted to enter such bays or harbours 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 article the United States, as it appears, "renounce forever, any liberty heretofore enjoyed or claimed by the inhab itants thereof to take, dry, or cure fish on, or within three marine miles" of any of the "coasts, bays, creeks, or harbours" of His Britannic Majesty's dominions in America, not included within certain limits, within which the right to fish or to dry and cure fish was expressly reserved by the convention.'

"Neither side yielded its convictions to the reasoning of the other. This being exhausted, there was no resource left with nations disposed to peace but a compromise. Great Britain grew willing to give up something. The United States consented to take less than the whole. The most difficult part of our task was on the question of permanence. Britain would not consent to an express clause that a future war was not to abrogate the rights secured to us. We inserted the word forever, and drew up a paper to be of record in the negotiation, purporting that if the convention should from any cause be vacated, all anterior rights were to revive. It was by our act that the United States renounced the right to the fisheries not guaranteed to them by the convention. We deemed it proper under a threefold view: 1, to exclude the implication of the fisheries being secured to us being a new grant; 2, to place the rights secured and renounced, on the same footing of permanence; 3, that it might expressly appear, that our renunciation was limited to three miles from the coast." (Rush's Residence at the Court of London, Philadelphia, 1633, pp. 398-400. See, also, Am. State Papers, For. Rel. IV. 380–406.)

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