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Relations with Great Britain.

supposed to countenance a principle not less novel than alarming.

But, though Great Britain can never admit the claim of the United States to enjoy those liberties, with respect to the fisheries, as matter of right, she is by no means insensible to some of those considerations with which the letter of the American Minister concludes.

Although His Majesty's Government cannot admit that the claim of the American fishermen to fish within British jurisdiction, and to use the British territory for purposes connected with their fishery, is analogous to the indulgence which has been granted to enemy's subjects engaged in fishing on the high seas, for the purpose of conveying fresh fish to market, yet they do feel that the enjoyment of the liberties, formerly used by the inhabitants of the United States, may be very conducive to their national and individual prosperity, though they should be placed under some modifications; and this feeling operates most forcibly in favor of concession. But Great Britain can only offer the concession in a way which shall effectually protect her own subjects from such obstructions to their lawful enterprises as they too frequently experienced immediately previous to the late war, and which are, from their very nature, calculated to produce collision and disunion between the two States.

It was not of fair competition that His Majesty's Government had reason to complain, but of the preoccupation of British harbors and creeks, in North America, by the fishing vessels of the United States, and the forcible exclusion of British vessels from places where the fishery might be most advantageously conducted. They had, likewise, reason to complain of the clandestine introduction of prohibited goods into the British colonies by American vessels ostensibly engaged in the fishing trade, to the great injury of the British revenue.

been delayed by an illness which, for several weeks, disabled me from writing.

Reply to the note of Lord Bathurst, of October 30, 1815. 13 CRAVEN STREET, Jan. 22, 1816. The undersigned, Envoy Extraordinary and Minister Plenipotentiary from the United States of America, has received, and communicated to the Government of the United States, the answer of Lord Bathurst to a letter which he had the honor of addressing to his Lordship on the 25th of September last, representing the grounds upon which the American Government consider the people of the United States entitled to all the rights and liberties in, and connected with, the fisheries on the coasts of North America, which had been enjoyed by them previously to the American Revolution, and which, by the third article of the treaty of peace of 1783, were recog nised by Great Britain as rights and liberties belonging to them. The reply to Lord Bathurst's note has been delayed by circumstances which it is unnecessary to detail. It is for the Government of the United States alone to decide upon the proposal of a negotiation upon the subject. That they will at all times be ready to agree upon arrangements which may obviate and prevent the recurrence of those inconveniences stated to have resulted from the exercise by the people of the United States of these rights and liberties, is not to be doubted; but as Lord Bathurst appears to have understood some of the observations in the letter of the undersigned as importing inferences not intended by him, and as some of his Lordship's remarks particularly require a reply, it is presumed that, since Lord Castlereagh's return, it will, with propriety, be addressed to him.

It had been stated, in the letter to Lord Bathurst, that the treaty of peace of 1783 between Great Britain and the United States was of a peculiar The undersigned has felt it incumbent on him nature, and bore in that nature a character of thus generally to notice these obstructions, in the permanency, not subject, like many of the ordihope that the attention of the Government of the nary contracts between independent nations, to United States will be directed to the subject; abrogation by a subsequent war between the same and that they may be induced, amicably and cor- parties. His Lordship not only considers this as dially, to co-operate with His Majesty's Govern- a position of a novel nature, to which Great Britment in devising such regulations as shall pre-ain cannot accede, but as claiming for the diplovent the recurrence of similar inconveniences. matic relations of the United States with her a His Majesty's Government are willing to enter different degree of permanency from that on into negotiations with the Government of the which her connexions with all other States deUnited States for the modified renewal of the lib-pend. He denies the right of any one State to erties in question; and they doubt not that an arrangement may be made satisfactory to both countries, and tending to confirm the amity now so happily subsisting between them.

The undersigned avails himself of this opportunit of renewing to Mr. Adams the assurances of his high consideration. BATHURST.

Extract of a letter from Mr. Adams, Envoy, &c., at
London, to the Secretary of State, dated

LONDON, January 22, 1816.
I have the honor to enclose my reply to Lord
Bathurst's note concerning the fisheries. It has

assign to a treaty made with her such a peculiarity of character as to make it in duration an exception to all other treaties, in order to found on a peculiarity thus assumed an irrevocable title to all indulgences which (he alleges) have all the features of temporary concessions; and he adds, in unqualified terms, that "Great Britain knows of no exception to the rule that all treaties are put an end to by a subsequent war between the same parties."

The undersigned explicitly disavows every pretence of claiming, for the diplomatic relations between the United States and Great Britain, a degree of permanency different from that of the

Relations with Great Britain.

same relations between either of the parties and all other Powers. He disclaims all pretence of assigning to any treaty between the two nations any peculiarity not founded in the nature of the treaty itself. But he submits to the candor of His Majesty's Government whether the treaty of 1783 was not, from the very nature of its subjectmatter, and from the relations previously existing between the parties to it, peculiar? Whether it was a treaty which could have been made between Great Britain and any other nation? And, if not, whether the whole scope and objects of its stipulations were not expressly intended to constitute a new and permanent state of diplomatic relations between the two countries, which would not, and could not, be annulled by the mere fact of a subsequent war between them? And he makes this appeal with the more confidence, because another part of Lord Bathurst's note admits that treaties often contain recognitions and acknowledgments in the nature of perpetual obligation, and because it implicitly admits that the whole treaty of 1783 is of this character, with the exception of the article concerning the navigation of the Mississippi, and a small part of the article concerning the fisheries.

The position that “Great Britain knows of no exception to the rule that all treaties are put an end to by a subsequent war between the same parties," appears to the undersigned not only novel, but unwarranted by any of the received authorities upon the laws of nations; unsanctioned by the practice and usages of sovereign States; suited, in its tendency, to multiply the incitements to war, and to weaken the ties of peace between independent nations; and not easily reconciled with the admission that treaties not unusually contain, together with articles of a temporary character, liable to revocation, recognitions, and acknowledgments in the nature of perpetual obligation.

ticle of the treaty? According to the principle laid down, excluding all exception, by Lord Bathurst's note, the moment a war broke out between the two countries this stipulation became a dead letter, and either State might have sequestered or confiscated those specified properties, without any violation of compact between the nations.

The undersigned believes that there are many exceptions to the rule by which the treaties between nations are mutually considered as terminated by the intervention of a war; that these exceptions extend to all engagements contracted with the understanding that they are to operate equally in war and peace, or exclusively during war; to all engagements by which the parties superadd the sanction of a formal compact to principles dictated by the eternal laws of morality and humanity; and, finally, to all engagements which, according to the expressions of Lord Bathurst's note, are in the nature of perpetual obligation. To the first and second of these classes may be referred the tenth article of the treaty of 1794, and all treaties or articles of treaties stipulating the abolition of the slave trade. The treaty of peace of 1783 belongs to the third.

The reasoning of Lord Bathurst's note seems to confine this perpetuity of obligation to recognitions and acknowledgments of title, and to consider its perpetual nature as resulting from the subject-matter of the contract, and not from the engagement of the contractor. While Great Britain leaves the United States unmolested in the enjoyment of all the advantages, rights, and liberties stipulated in their behalf in the treaty of 1783, it is immaterial to them whether she founds her conduct upon the mere fact that the United States are in possession of such rights, or whether she is governed by good faith and respect for her own engagements. But if she contests any one of them, it is to her engagements only A recognition or acknowledgment of title, that the United States can appeal as the rule for stipulated by convention, is as much a part of settling the question of right. If this appeal be the treaty as any other article ; and if all treaties rejected, it ceases to be a discussion of right; and are abrogated by war, the recognitions and ac- this observation applies as strongly to the recog knowledgments contained in them must neces-nition of independence, and to the boundary line sarily be null and void, as much as any other part of the treaty.

If there be no exception to the rule that war puts an end to all treaties between the parties to it, what can be the purpose or meaning of those articles which, in almost all treaties of commerce, are provided expressly for the contingency of war, and which, during the peace, are without operation? On this point, the undersigned would refer Lord Castlereagh to the tenth article of the treaty of 1794 between the United States and Great Britain, where it is thus stipulated: "Neither the debts due from individuals of the one nation to the individuals of the other, nor shares, nor moneys, which they may have in the public funds, or in the public or private banks, shall ever, in any event of war, or national differences, be sequestered or confiscated." If war puts an end to all treaties, what could the parties to this engagement intend by making it formally an ar

in the treaty of 1783, as to the fisheries. It is truly observed by Lord Bathurst, that in that treaty the independence of the United States was not granted, but acknowledged. He adds, that it might have been acknowledged without any treaty, and that the acknowledgment, in whatever mode made, would have been irrevocable. But the independence of the United States was precisely the question upon which a previous war between them and Great Britain had been waged. Other nations might acknowledge their independence without a treaty, because they had no right, or claim of right, to contest it; but this acknowledgment, to be binding upon Great Britain, could have been made only by treaty, because it included the dissolution of one social compact between the parties, as well as the formation of another. Peace could exist between the two nations only by the mutual pledge of faith to the new social relations established be

Relations with Great Britain.

tween them; and hence it was that the stipula- Bathurst, the treaty of 1783 was stated to be a tions of that treaty were in the nature of perpet-compact of a peculiar character, importing in its ual obligation, and not liable to be forfeited by a subsequent war, or by any declaration of the will of either party without the assent of the


own nature a permanence not liable to be annulled by the fact of a subsequent war between the parties, the recognition of the sovereignty of the United States and the boundary line were adduced as illustrations to support the principle; the language of the abovementioned articles in the Treaty of Ghent, and the claim brought forward by Great Britain, at the negotiation of it, for the free navigation of the Mississippi, were alleged as proofs that Great Britain herself so considered it, excepting with regard to a small part of the single article relative to the fisheries; and the right of Great Britain was denied thus to select one particular stipulation in such a treaty, and declare it to have been abrogated by the war. The answer of Lord Bathurst denies that Great Britain has made such a selection, and affirms that the whole treaty of 1783 was annulled by the late war. It admits, however, that the recognition of independence and the bounda

In this view, it certainly was supposed by the undersigned that Great Britain considered her obligation to hold and treat with the United States as a sovereign and independent Power as derived only from the preliminary articles of 1782, as converted into the definitive treaty of 1783. The boundary line could obviously rest upon no other foundation. The boundaries were neither recognitions nor acknowledgments of title. They could have been fixed and settled only by treaty, and it is to the treaty alone that both parties have always referred in all discussions concerning them. Lord Bathurst's note denies that there is in any one of the articles of the Treaty of Ghent any express or implied reference to the treaty of 1783, as still in force. It says that, by the stipulation for a mutual restora-ries was in the nature of perpetual obligation; tion of territory, each party necessarily "reverted to their boundaries as before the war, without reference to the title by which their possessions were acquired, or to the mode in which their boundaries had been previously fixed."

There are four several articles of the Treaty of Ghent, in every one of which the treaty of 1783 is not only named, but its stipulations form the basis of the new engagements between the parties for carrying its provisions into execution. These articles are the fourth, fifth, sixth, and seventh. The undersigned refers particularly to the fourth article, where the boundaries described are not adverted to without reference to the title by which they were acquired; but where the stipulation of the treaty of 1783 is expressly assigned as the basis of the claims, both of the United States and of Great Britain, to the islands mentioned in the article.

and that, with the single exception of the liberties in and connected with the fisheries within British jurisdiction on the coasts of North America, the United States are entitled to all the benefits of all the stipulations in their favor contained in the treaty of 1783, although the stipulations themselves are supposed to be annulled. The fishing liberties within British jurisdiction alone are considered as a temporary grant, liable not only to abrogation by war, but, as it would seem from the tenor of the argument, revocable at the pleasure of Great Britain, whenever she might consider the revocation suitable to her interest. The note affirms that "the liberty to fish within British limits, or to use British territory, is essentially different from the right to independence in all that can reasonably be supposed to regard its intended duration; that the grant of this liberty has all the aspect of a policy, temporary and exThe words with which the article begins are,perimental, depending on the use that might be "Whereas it was stipulated by the second article in the treaty of peace of one thousand seven hundred and eighty-three, between His Britannic Majesty and the United States of America, that the boundary of the United States should comprehend all islands," &c.

It proceeds to describe the boundaries as there stipulated; then alleges the claim of the United States to certain islands, as founded upon one part of the stipulation, and the claim of Great Britain as derived from another part of the stipulation; and agrees upon the appointment of two commissioners "to decide to which of the two contracting parties the islands belong, in conformity with the true intent of the said treaty of peace of 1783." The same expressions are repeated in the fifth, sixth, and seventh articles; and the undersigned is unable to conceive by what construction of language one of the parties to those articles can allege that, at the time when they were signed, the treaty of 1783 was, or could be, considered at an end.

When, in the letter of the undersigned to Lord

made of it, on the condition of the islands and places where it was to be exercised, and the more general conveniences or inconveniences, in a military, naval, or commercial point of view, resulting from the access of an independent nation to such islands and places."

The undersigned is induced, on this occasion, to repeat his Lordship's own words, because, on a careful and deliberate review of the article in question, he is unable to discover in it a single expression indicating, even in the most distant manner, a policy, temporary or experimental, or having the remotest connexion with military, naval, or commercial conveniences or inconve niences to Great Britain. He has not been inattentive to the variation in the terms, by which the enjoyment of the fisheries on the main ocean, the common possession of both nations, and the same enjoyment within a small portion of the special jurisdiction of Great Britain, are stipulated in the article, and recognised as belonging to the people of the United States. He considers the term right as importing an advantage to be

Relations with Great Britain.

enjoyed in a place of common jurisdiction, and ages to their independence. Had she not acthe term liberty as referring to the same advan- knowledged it, the United States must have been tage, incidentally leading to the borders of a spe- reduced to the alternative of resigning it, or of cial jurisdiction. But, evidently, neither of them maintaining it by force; the result of which imports any limitation of time. Both were ex-must have been war-the very state from which pressions no less familiar to the understandings the treaty was to redeem the parties. That than dear to the hearts of both the nations par- Great Britain would not have acknowledged ties to the treaty. The undersigned is persuaded these rights as belonging to the United States in it will be readily admitted that, wherever the virtue of their independence, is evident; for, in English language is the mother tongue, the term the cession of Nova Scotia by France to Great liberty, far from including in itself either limita- Britain, in the twelfth article of the Treaty of tion of time or precariousness of tenure, is essen-Utrecht, it was expressly stipulated that, as a tially as permanent as that of right, and can, consequence of that cession, French subjects with justice, be understood only as a modifica- should be thenceforth "excluded from all kind of tion of the same thing; and as no limitation of fishing in the said seas, bays, and other places on time is implied in the term itself, so there is none the coasts of Nova Scotia; that is to say, on those expressed in any part of the article to which it which lie towards the east, within thirty leagues, belongs. The restriction at the close of the ar- beginning from the island commonly called Saticle is itself a confirmation of the permanency ble, inclusively, and thence stretching along which the undersigned contends belongs to every towards the southwest." The same exclusion part of the article. The intention was, that the was repeated, with some slight variation, in the people of the United States should continue to treaty of peace of 1763; and, in the eighteenth enjoy all the benefits of the fisheries which they article of the same treaty, Spain explicitly rehad enjoyed theretofore, and, with the exception nounced all pretensions to the right of fishing of drying and curing fish on the island of New- "in the neighborhood of the island of Newfoundfoundland, all that British subjects should enjoy land." It was not, therefore, as a necessary rethereafter. Among them, was the liberty of dry-sult of their independence that Great Britain reing and curing fish on the shores, then uninhab-cognised the right of the people of the United ited, adjoining certain bays, harbors, and creeks. States to fish on the banks of Newfoundland, in But, when those shores should become settled, the "Gulf of St. Lawrence," and at all other and thereby become private and individual prop- places in the sea where "the inhabitants of both erty, it was obvious that the liberty of drying and countries used, at any time theretofore, to fish." curing fish upon them must be conciliated with She recognised it, by a special stipulation, as a the proprietary rights of the owners of the soil. right which they had theretofore enjoyed as a The same restriction would apply to British fish- part of the British nation, and which, as an inermen; and it was precisely because no grant of dependent nation, they were to continue to enjoy a new right was intended, but merely the con- unmolested; and it is well known that, so far tinuance of what had been previously enjoyed, from considering it as recognised by virtue of that the restriction must have been assented to her acknowledgment of independence, her objec on the part of the United States. But, upon the tions to admitting it at all formed one of the most common and equitable rule of construction for prominent difficulties in the negotiation of the treaties, the expression of one restriction implies peace of 1783. It was not asserted by the unthe exclusion of all others not expressed; and dersigned, as Lord Bathurst's note appears to thus the very limitation which looks forward to suppose, that either the right or the liberty of the the time when the unsettled deserts should be- people of the United States in these fisheries was come inhabited, to modify the enjoyment of the indefeasible. It was maintained_that, after the same liberty conformably to the change of cir-recognition of them by Great Britain, in the cumstances, corroborates the conclusion that the whole purport of the compact was permanent and not temporary-not experimental, but definitive.

treaty of 1783, neither the right nor the liberty could be forfeited by the United States, but by their own consent; that no act or declaration of Great Britain alone could divest the United States of them; and that no exclusion of them from the enjoyment of either could be valid, unless expressly stipulated by themselves, as was done by France in the Treaty of Utrecht, and by France and Spain in the peace of 1763.

That the term right was used as applicable to what the United States were to enjoy in virtue of a recognised independence, and the word liberty to what they were to enjoy as concessions strictly dependent on the treaty itself, the undersigned not only cannot admit, but considers as a The undersigned is apprehensive, from the earconstruction altogether unfounded. If the Uni- nestness with which Lord Bathurst's note argues ted States would have been entitled, in virtue of to refute inferences which he disclaims, from the a recognised independence, to enjoy the fisheries principles asserted in his letter to his Lordship, to which the word rights is applied, no article that he has not expressed his meaning in terms upon the subject would have been required in sufficiently clear. He affirmed that, previous to the treaty. Whatever their right might have the independence of the United States, their peobeen, Great Britain would not have felt herself ple, as British subjects, had enjoyed all the rights bound, without a specific article to that effect, to and liberties in the fisheries, which form the subacknowledge it as included among the append-ject of the present discussion ; and that, when the

Relations with Great Britain.

separation of the two parts of the nation was consummated, by a mutual compact, the Treaty of Peace defined the rights and liberties which, by the stipulation of both parties, the United States in their new character were to enjoy. By the acknowledgment of the independence of the United States, Great Britain bound herself to treat them, thenceforward, as a nation possessed of all the prerogatives and attributes of sovereign power. The people of the United States were, thenceforward, neither bound in allegiance to the Sovereign of Great Britain, nor entitled to his protection, in the enjoyment of any of their rights, as his subjects. Their rights and their duties, as members of a State, were defined and regulated by their own constitutions and forms of government. But there were certain rights and liberties which had been enjoyed by both parts of the nation, while subjects of the same sovereign, which it was mutually agreed they should continue to enjoy unmolested; and, among them, were the rights and liberties in those fisheries. The fisheries on the banks of Newfoundland, as well in the open seas as in the neighboring bays, gulfs, and along the coasts of Nova Scotia and Labrador, were, by the dispensations and the laws of nature, in substance, only different parts of one fishery. Those of the open sea were enjoyed not as a common and universal right of all nations; since the exclusion from them of France and Spain, in whole or in part, had been expressly stipulated by those nations, and no other nation had, in fact, participated in them. It was, with some exceptions, an exclusive possession of the British nation; and in the Treaty of Separation it was agreed that the rights and liberties in them should continue to be enjoyed by that part of the nation which constituted the United States; that it should not be a several, but, as between Great Britain and the United States, a common fishery. It was necessary, for the enjoyment of this fishery, to exercise it in conformity to the habits of the species of game of which it consisted. The places frequented by the fish were those to which the fishermen were obliged to resort, and these occasionally brought them to the borders of the British territorial jurisdiction. It was also necessary, for the prosecution of a part of this fishery, that the fish, when caught, should be immediately cured and dried, which could only be done on the rocks or shores adjoining the places where they were caught; the access to these rocks and shores, for those purposes, was secured to the people of the United States, as incidental and necessary to the enjoyment of the fishery; it was little more than an access to naked rocks and desolate sands; but it was as permanently secured as the right to the fishery itself. No limitation was assigned of time. Provision was made for the proprietary rights which might at a distant and future period arise by the settlement of places then uninhabited; but no other limitation was expressed or indicated by the terms of the treaty, and no other can, either from the letter or spirit of the article, be inferred.

Far, then, from claiming the general rights and 15th CoN. 2d SESS.-47

privileges belonging to British subjects within the British dominions, as resulting from the Treaty of Peace of 1783, while at the same time asserting their exemption from the duties of a British allegiance, the article in question is itself a proof that the people of the United States have renounced all such claims. Could they have pretended generally to the privileges of British subjects, such an article as that relating to the fisheries would have been absurd. There was in the treaty of 1783 no express renunciation of their rights to the protection of a British Sovereign. This renunciation they had made by their declaration of independence on the 4th of July, 1776; and it was implied in their acceptance of the counter-renunciation of sovereignty in the treaty of 1783. It was precisely because they might have lost their portion of this joint national property, to the acquisition of which they had contributed more than their share, unless a formal article of the treaty should secure it to them, that the article was introduced. By the British municipal laws, which were the laws of both nations, the property of a fishery is not necessarily in the proprietor of the soil where it is situated. The soil may belong to one individual, and the fishery to another. The right to the soil may be exclusive, while the fishery may be free, or held in common. And thus, while in the partition of the national possessions in North America, stipulated by the treaty of 1783, the jurisdiction over the shores washed by the waters where this fishery was placed was reserved to Great Britain, the fisheries themselves, and the accommodations essential to their prosecution, were, by mutual compact, agreed to be continued in common.

In submitting these reflections to the consideration of His Majesty's Government, the undersigned is duly sensible to the amicable and conciliatory sentiments and dispositions towards the United States manifested at the conclusion of Lord Bathurst's note, which will be met by reciprocal and corresponding sentiments and dispositions on the part of the American Government. It will be highly satisfactory to them to be assured that the conduciveness of the object to the national and individual prosperity of the inhabitants of the United States operates with His Majesty's Government as a forcible motive to concession. Undoubtedly, the participation in the liberties of which their right is now maintained, is far more important to the interests of the people of the United States than the exclusive enjoyment of them can be to the interests of Great Britain. The real, general, and ultimate interests of both the nations on this object, he is fully convinced are the same. The collision of particular interests which heretofore may have produced altercations between the fishermen of the two nations, and the clandestine introduction of prohibited goods by means of American fishing vessels, may be obviated by arrangements duly concerted between the two Governments. That of the United States, he is persuaded, will readily co-operate in any measure to secure those ends compatible with the enjoyment by the people of

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