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 Cong., 1818, p. 338.

"The inhabitants of the United States had as clear a right to every branch of the fisheries, and to cure fish on land, as the inhabitants of Canada or Nova Scotia; the citizens of Boston, New York, or Philadelphia had as clear a right to those fisheries, and to cure fish on land, as the inhabitants of London, Liverpool, Bristol, Glasgow, or Dublin; fourthly, that the third article was demanded as an ultimatum, and it was declared that no treaty of peace should be made without that article. And when the British ministers found that peace could not be made without that article, they consented-for Britain wanted peace, if possible, more than we did; fifthly, we asked no favor, we requested no grant, and would accept none."

Ex-President John Adams to William Thomas, August 10, 1822. This letter was quoted and its positions adopted by Mr. Cass in his speech on the fisheries in the Senate on August 3, 1852 (App. Cong. Globe, 1852).

"Louisburg, on Cape Breton, held by the French, was supposed to be the most important and commanding station (in French North America) and to have more influence than any other upon the destinies of this part of the country, and it was with a force of between three and four thousand Massachusetts men, under Pepperell, and a few hundred from the colonies, with two hundred and ten vessels, that sailed to Louisburg, invested and took it for the British Crown in trust for the British Crown and colonies."

Mr. Dana, Halifax Com., 1653.

(2) TREATY OF PEACE (1783) WAS NOT A GRANT OF INDEPENDENCE, BUT WAS A PARTITION OF THE EMPIRE, THE UNITED STATES RETAINING THEIR COMMON SHARE

IN THE FISHERIES.

§ 302.

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 v. Sutton, 1 Myl. & R., 675, hereafter cited more fully, "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 sections, conceding to each mutual rights of territoriality. Aside from the fact that such 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. This will at once be seen by an examination of the fishery article in the treaty of 1783. This article is as follows:

"ART. III. It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all the other banks of Newfoundland; also in the Gulph of Saint Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish. And also that the inhabitants of the United States shall have liberty to take fish of every kind 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, harbors, 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."

That colonies becoming independent retain their boundaries and prior territorial rights has been already generally stated. (See supra, § 6.)

"By the third article of the treaty of 1783 it was agreed that the people of the United States should continue to enjoy the fisheries of Newfoundland and the Bay of Saint Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time theretofore to fish; and also that they should have certain fishing liberties on all the fishing coast within the British jurisdiction of Nova Scotia, Magdalen Islands, and Labrador. The title by which the United States held those fishing rights and liberties was the same. It was the possessory use of the right

at any time theretofore, as British subjects, and the acknowledgment by Great Britain of its continuance in the people of the United States after the treaty of separation. It was a national right; and, therefore, as much a right, though not so immediate an interest, to the people of Ohio and Kentucky, ay, and to the people of Louisi

ana, after they became a part of the people of the United States, as it was to the people of Massachusetts and Maine."

Mr. J. Q. Adams, The Fisheries and the Mississippi, 96.

"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 1 Lyman's Diplomacy of the U. S., 117.

*

"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 recognized 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.

"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, or treaty to ascertain the boundaries and the right of the nations the mother country acknowledged to be created by that instrument."

1 Lyman's Diplomacy of the U. S., 117.

"From the very moment the United States became a sovereign power they were clearly entitled to an enjoyment of these rights (to the fisheries) by the law of nations."

Mr. C. A. Rodney, opinion filed with and indorsed by President Monroe, Nov. 4, 1818; MSS. Monroe papers, Dep. of State, cited more fully infra. See to this effect McIlvaine v. Coxe, 4 Cranch, 209, and other cases cited supra, § 150. As to the general questions discussed above see 1 John Adams's Works, 292, 343, 368, 370, 373, 670; 2 ibid., 174; 3 ibid., 263, 318, 319; 7 ibid., 45, 654; 8 ibid., 5, 11, 439; 9 ibid., 487, 563; 10 ibid., 131, 137, 160, 354, 403.

As to boundaries of the colonial interests see 3 John Adams's Works, 330; 8 ibid., 11, 16, 20, 34.

(3) WAR OF 1812 DID NOT DIVEST THESE RIGHTS.

§ 303.

As has been shown in a prior section, 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 (supra, § 135). As such appurtenances of the sovereignty 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.

"As little did the people of the United States renounce the doctrine that all the rights and liberties recognized by the treaty of 1783 were in full force as if the war of 1812 had never occurred. The conflict of opinion was adjusted by a new article, as little liable to be abrogated by a future war as the treaty of Independence." Mr. J. Q. Adams, The Fisheries and the Mississippi, 162.

"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 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 treaty, or by acquiescence, on 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 Lyman's
Diplomacy of the U. S., 117.

"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 cannot be affected by a subsequent war. A grant of a facultative 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 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 enjoy

ment of which has been interrupted by the war, and has not been renewed by 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 respectire 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 position was taken by Lord Eldon and Mr. Fox."

Mr. J. Q. Adams, The Fisheries and the Mississippi, 195, citing 23 Hansard, 1147.

"On the subject of the fisheries, within the jurisdiction of Great Britain, we have certainly done all that could be done. If, according to the construction of the treaty of 1783, which we assumed, the right was not abrogated by the war, it remains entire, since we most explicitly refused to renounce it, either directly or indirectly."

Mr. Gallatin to the Sec. of State, Ghent, 25 Dec., 1814; MSS. Dept. of State; 1 Gallatin's writings, 646; printed in full in The Fisheries and the Mississippi, 58.

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, heretofore unpublished, 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. In 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 re-enforced must be specially renewed on the return of peace. It 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 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 non-renewal of the treaty of 1786 our right to cut logwood might be disputed; 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 non-renewal of treaties.'

*

"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