"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 recog nized 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. "As a possession, it was to be held by the people of the United States as it had been held before. It was not like the lands partitioned out by the same treaty, a corporeal possession, but, in the technical language of the English law, an incorporeal hereditament, and in that of the civil law a right of mere faculty, consisting in the power and liberty of exercising a trade, the places in which it is exercised being occupied only for the purposes of the trade. Now the right or liberty to enjoy this possession, or to exercise this trade, could no more be affected or impaired by a declaration of war than the right to the territory of the nation. The interruption to the exercise of it, during the war, could no more affect the right or liberty than the occupation by the enemy of territory could affect the right to that. The right to territory could be lost only by abandonment or renunciation in the treaty of peace; by agreement to a new boundary line, or by acquiescence in the occupation of the territory by the enemy. The fishery liberties could be lost only by express renunciation of them in the treaty, or by acquiescence in the principle that they were forfeited, which would have been a tacit renunciation." Mr. J. Q. Adams, The Fisheries and the Mississippi, 190; adopted in 1 "In the case of a cession of territory, when the possession of it has been delivered, the article of the treaty is no longer a compact between the parties, nor can a subsequent war between them operate in any manner upon it. So of all articles the purport of which is the acknowledgment by one party of a pre-existing right belonging to another. The engagement of the acknowledging party is consummated by the ratification of the treaty. It is no longer an executory contract, but a perfect right united with a vested possession is thenceforth in one party, and the acknowledgment of the other is in its own nature irrevocable. As a bargain, the article is extinct; but the right of the party in whose favor it was made, is complete, and can not be affected by a subsequent war. A grant of a faculative right or incorporeal hereditament, and specifically of a right of fishery, from one sovereign to another, is an article of the same description. . . . In the debates in Parliament on the peace of Amiens, Lord Auckland said: 'He had looked into the works of all the first publicists on these, subjects, and had corrected himself in a mistake still prevalent in the minds of many, who state, in an unqualified sense, that all treaties between nations are annulled by war, and must be specially renewed if meant to be in force on the return of peace. It is true that treaties in the nature of compacts or concessions, the enjoyment of which has been interrupted by the war, and has not been renewed at the pacification, are rendered null by the war. But compacts not interrupted. by the course and effect of hostilities, such as the regulated exercise of a fishery on the respective coasts of the belligerent powers, the stipulated right of cutting wood in a particular district, or possessing rights of territory heretofore ceded by treaty, are certainly not destroyed or injured by war.' . . . The Earl of Carnarvon-a member of the opposition, said, in the same debate, . . . War does not abrogate any right, or interfere with the right, though it does with the exercise, but such as it professes to litigate by war." The same posi tion was taken by Lord Eldon and Mr. Fox. Mr. J. Q. Adams, The Fisheries and the Mississippi, 194–196, 197, citing 23 Hansard, Parl. History, 1147. Fisheries "on the coasts and bays of the provinces conquered in America from France were acquired by the common sword, and mingled blood of Americans and Englishmen-members of the same empire, we, with them, had a common right to these fisheries; and, in the division of the empire, England confirmed our title without condition or limitation, a title equally irrevocable with those of our boundaries or of our independence itself.” Note to speech of Mr. Rufus King, in Senate, April 3, 1818, Annals of Mr. C. A. Rodney, who had been Attorney-General under Mr. Jefferson, and had since then filled important public offices, was consulted (being then a Senator of the United States) by Mr. Monroe in November, 1818, on the fishery question. From his reply the following passages are extracted: "When the treaty of Amiens, in 1802, between Great Britain, France, Spain, and Holland, was under discussion in Parliament, it was objected by some members that there was a culpable omission in consequence of the non-renewal of certain articles in former treaties or conventions securing to England the gum trade of the river Senegal and the right to cut logwood at the Bay of Honduras, etc. answer to this objection in the House of Lords it was well observed by Lord Auckland that from an attentive perusal of the works of the publicists, he had corrected, in his own mind, an error, still prevalent, that all treaties between nations are annulled by a war, and to be reenforced must be specially renewed on the return of peace. was true that treaties in the nature of compacts or concessions the enjoyment of which has been interrupted by the war are thereby rendered null; but compacts which were not impeded by the course and effect of hostilities, such as the rights of a fishery on the coasts of either of the belligerent powers, the stipulated right of cutting logwood in a particular district-compacts of this nature were not affected by war. . . It had been intimated by some that by the nonrenewal of the treaty of 1786 our right to cut logwood might be dis . It puted; but those he would remind of the principle already explained, that treaties the exercise of which was not impeded by the war were reestablished with peace. . . . He did not consider our rights in India or at Honduras in the least affected by the non-renewal of certain articles in former treaties.' "Lord Ellenborough (chief justice of the court of King's bench) 'felt surprise that the non-renewal of treaties should have been urged as a serious objection to the definitive treaty. . . . He was astonished to hear men of talents argue that the public law of Europe was a dead letter because certain treaties were not renewed.' "Lord Eldon (then and at present the high chancellor of England and a member of the cabinet) denied that the rights of England in the Bay of Honduras or the river Senegal were affected by the nonrenewal of treaties.' 66 In the House of Commons, in reply to the same objection made in the House of Lords, it was stated by Lord Hawkesbury, the present Earl of Liverpool, then secretary of state for the foreign department and now prime minister of England, which post he occupied when the treaty of Ghent was concluded, ‘that to the definitive treaty two faults had been imputed, of omission and commission. Of the former the chief was the non-renewal of certain treaties and conventions. He observed the principle on which treaties were renewed was not understood. He affirmed that the separate convention relative to our East India trade, and to our right of cutting logwood in the Bay of Honduras, had been altogether misunderstood. Our Sovereignty in India was the result of conquest, not established in consequence of stipulations with France, but acknowledged by her as the foundation of them; our rights in the Bay of Honduras remained inviolate, the privilege of cutting logwood being unquestionably retained. . . . He did not conceive our rights in India or at Honduras were affected by the non-renewal of certain articles in former treaties.' "It is remarked in the Annual Register that Lord Hawkesbury's speech contained the ablest defense of the treaty. The chancellor of the exchequer, Mr. Addington, the present Lord Sidmouth, and the late Mr. Pitt supported the same principles in the course of debate. I presume our able negotiators at Ghent entertained the same opinions when they signed the late treaty of peace. "It may be recollected that during the Revolutionary war, when the British Parliament were passing the act to prohibit the colonies from using the fisheries, some members urged with great force and eloquence that the absurdity of the bill was equal to its cruelty and injustice; that its object was to take away a trade from the colonies which all who understood its nature knew they could not transfer to themselves; that God and nature had given the fisheries to New and not to Old England.'" Letter of C. A. Rodney, Nov. 4, 1818, Monroe MSS. Library of Congress. national Law Digest, III. 45, cites the ruling in Sutton . Sutton. Wharton suggests, also," that for the same reason that rights to fisheries are not extinguished by war, fishing boats are ordinarily exempt from seizure in war." 6 "The treaty of peace (1783) did not grant independence, nor did it create the distinct colonies, afterwards States in the Federal Union of the United States, nor did it assign their boundaries, or endow them with franchises or servitudes such as their rights in the fisheries. 'The relations which had subsisted between Great Britain and America, to adopt the language of the Master of the Rolls in Sutton e. Sutton, 1 Myl. & R., 675, when they formed one empire,' 'made it highly reasonable' in framing the treaty of peace, that the subjects of the two parts of the divided empire should, notwithstanding the separation, be protected in the mutual enjoyment' of certain territorial rights. It was certainly reasonable that the British negotiators should have adopted the principle of partition as above stated. They represented a ministry which, though afterwards torn asunder by the personal contentions of Shelburne and Fox, entered into power pledged to the concession of a friendly separation between the two sec |