tions, conceding to each mutual rights of territoriality. Aside from the fact that such a separation, carrying with it a retention of old reciprocal rights, was far less galling to Great Britain than would be the admission that independence was wrung from her by conquest; the idea of a future reciprocity between the two nations, based on old traditions, as moulded by modern economical liberalism, was peculiarly attractive to Shelburne, by whom, as prime minister, the negotiations were ultimately closed. (See Franklin MSS., deposited in Department of State; Bancroft's Formation Fed. Const., vol. VI, ch. 1.) On this basis alone, also, could, as we will presently see, British subjects be secure of taking, by inheritance or purchase, landed estates in the United States; on this basis alone could Great Britain be sure of a common enjoyment of the lakes and of the Mississippi, whose northern waters were then supposed to pass in part through British territory. Hence, unquestionably under the influence of this view, which was then pressed by Great Britain at least as eagerly as it was by the United States, no word of cession or grant was introduced into the preliminary articles of peace or into the treaty of peace based on them. So far from this being the case, they adopt the phraseology of treaties of partition, or, as the Master of the Rolls calls it, of separation.' The two sections of the empire agree to separate, each taking with it its territorial rights as previously enjoyed; and among these rights, that which was most important to the United States, and was most conspicuously before the commissioners, was that to the common use of the fisheries. Applying to the fisheries this principle of partition or of separation,' which it was then so essential for Great Britain, in view of the great interests held by her subjects in the United States, to assert, the commissioners accepted, as part of the same system, the position that the United States held, in common with Great Britain, the fisheries which previously it had held, in entirety with Great Britain, when it was subject to titular British supremacy." Note of Dr. Wharton, Wharton's Int. Law Dig. III. 40-41. hibition. It appears that the Attorney-General and Solicitor-General, Ryder and Murray, gave an opinion, April 7, 1753, that the treaty was then in force. It also appears that the Attorney-General and Solicitor-General, Norton and De Grey, February 12, 1765, held that the treaty was not then in force; though Sir James Marriott, Advocate-General, expressed the opinion, February 15, 1765, that it was "a subsisting treaty, not only because it is revived by a strong implication of words and facts, but for that it may be understood to subsist because it never was abrogated." (Chalmers Opinions of Eminent Lawyers, Am. ed. 1858, pp. 625, 628–629, 638. ) "The prevalent opinion is that a war between two sovereigns does not by itself vacate such provisions in treaties theretofore existing between them as relate to primary national prerogatives, such, for instance, as national independence, boundary, or other integral appurtenances of sovereignty. As such appurtenances of the soyereignty of the New England States the fisheries are to be classed. The war of 1812, therefore, no more vacated the title of the United States to its common share in the northeastern fisheries than it vacated the independence of the States or the boundaries which separated their territories from those of Great Britain." Wharton, Int. Law Dig. III. 43. "It is worthy of notice that the claim of British settlers to the use of the coast and waters of the Belize for the purpose of cutting and shipping logwood and mahogany, which claim was based on a remote informal grant from Spain when sovereign of those shores, has always been asserted by Great Britain to have adhered to the British Crown unaffected by intermediate wars between Great Britain and Spain. See Lord Hawkesbury's speech, quoted above by Mr. Rodney." Wharton, Int. Law Dig. III. 45. 2. CONVENTION OF 1818. § 164. October 20, 1818, Albert Gallatin and Richard Rush concluded the convention, the first article 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 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 above-mentioned 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." Comparing the stipulations of the treaty of 1783 and of the convention of 1818 we have the following results: Treaty of 1783, Article III. Convention of 1818, Article I. I. Right to take fish 1. On the Banks of Newfoundland; II. Liberty. 2. 1. To take fish on the British coasts generally. To dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador. I. Right remains as under treaty of 1783. II. Liberty.. 1. To take fish renounced, except as to (a) the "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 to 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 three-fold 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, 1833, pp. 398–400 See Mr. Gallatin to Mr. Adams, Nov. 6, 1818, 2 Gallatin's Writings, 82; "The principle asserted by the American plenipotentiaries at Ghent has been still asserted and maintained through two long and arduous negotiations with Great Britain, and has passed the ordeal of minds of no inferior ability. It has terminated in a new and satisfactory arrangement of the great interest connected with it, and in a substantial admission of the principle asserted by the American plenipotentiaries at Ghent." Mr. J. Q. Adams, The Fisheries and the Mississippi, 97, 98. See, also, id. 109. Lyman, Dip. of the United States, II. 88, says: "The most important matter adjusted at this negotiation [of 1818] was the fisheries. The position assumed at Ghent, that the fishery rights and liberties were not abrogated by war, was again insisted on, and those portions of the coast fisheries relinquished on this occasion were renounced by express provision, fully implying that the whole right was not considered a new grant." Mr. J. C. Bancroft Davis, in his Treaty Notes, says: "John Quincy Adams. . . contended that the treaty of 1783 was not one of those which ... 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 cannot accede. . . . During the negotiations which followed Great Britain never abandoned that position, and the United States may be said to have acquiesced in it. By it they secured the exclusion of Great Britain from the Mississippi, the free and open navigation of which was granted to the subjects of Great Britain forever by the treaty which Lord Bathurst set aside." (United States Treaty Volume, 1776-1887, 1237.) Imperial act of 1819. On June 14, 1819, an act was passed by the Imperial Parliament to carry the foregoing article into effect. It closely followed the language of the article, and provided regulations and penalties for its enforcement. After this act went into effect several seizures were made, and from 1824 to 1826 more or less correspondence took place in regard to three vessels which, after being seized in the Bay of Fundy, were rescued by a band of armed men from Eastport, Maine." Nova Scotian "hovering act." From that time down to 1836 little trouble seems to have occurred. But in that year the legislature of Nova Scotia passed an act, commonly called the "hovering act," by which the hovering of vessels within three miles of the coasts or harbors was sought to be prevented by various regulations and penalties; and subsequently claims were asserted to exclude fishermen from all bays and even from all waters within lines drawn from headland to headland, to forbid them to navigate the Gut of Canso, and to deny them all privileges of traffic, including the purchase of bait and supplies in the British colonial ports. From 1839 down to 1854 there were numerous seizures, and in 1852 the home government sent over a force of war steamers and sailing vessels to assist in patrolling the coast. In support of their contention as to bays, the British authorities invoked the words of the convention of 1818-the Question as to renunciation of the liberty to take, dry, or cure fish "bays." within three marine miles of the "coasts, bays, creeks, or harbors," etc. It was argued that this renunciation embraced all bays eo nomine, no matter what their extent. Against this claim the United States protested, and in 1845 the British Government yielded the point with regard to the Bay of Fundy,a but declared that the concession applied to that bay only. In a paper, dated at the Department of State, July 6, 1852, and published in the a Sabine's Fisheries, 220; 6 Brit. & For. State Papers, 946. See message of President Monroe of Feb. 16, 1825, as to“ capture and detention by British armed vessels of American fishermen," H. Doc. 93, 18 Cong. 2 sess.; Am. State Papers, For. Rel. V. 675; S. Ex. Doc. 100, 32 Cong. 1 sess. 5, 11, 54, 55-58. As to the Newfoundland fishery, see Am. State Papers, For. Rel. V. 548, 579-580. e S. Ex. Doc. 100, 32 Cong. 1 sess. 108. d Lord Aberdeen, Foreign Secretary, to Mr. Everett, Am. min., March 10, 1845, S. Ex. Doc. 100, 32 Cong. 1 sess. 135. e Lord Aberdeen, For. Sec., to Mr. Everett, Am. min., April 21, 1845, S. Ex. Doc. 100, 32 Cong. 1 sess. 153. See Mr. Everett, min. to England, to Mr. Upshur, Sec. of State, Aug. 15, 1843, MSS. Dept. of State, a brief extract being printed in S. Ex. Doc. 100, 32 Cong. 1 sess. 120; and Mr. Everett, min. to England, to Mr. Calhoun, Sec. of State, March 25, 1845, MSS. Dept. of State, extracts being printed in S. Ex. Doc. 100, 32 Cong. 1 sess. 134. |