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 relative 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.'” Opinion of C. A. Rodney on the Fisheries, Nov. 3, 1818. Monroe MSS., Dept. of State. See this opinion referred to supra, § 135.

That, for the same reason that rights to fisheries are not extinguished by war, fishing boats are ordinarily exempt from seizure in war, see supra, § 345.

As sustaining the text may be cited an important English ruling on the question how far territorial rights given by the treaty of 1794 were abrogated by the war of 1812.

Article IX of the treaty of 1794, on which the question arose, is as follows:

"It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein, and may grant, sell, or devise the same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens."

In 1830 the question came up before the master of the rolls whether this article giving territorial rights in the United States to British subjects was abrogated by the war of 1812. After elaborate argument the master of the rolls, Sir J. Leach, decided the point as follows:

"The relations which had subsisted between Great Britain and America when they formed one empire led to the introduction of the ninth section of the treaty of 1794, and made it highly reasonable that the subjects of the two parts of the divided empire should, notwithstanding the separation, be protected in the mutual enjoyment of their landed property; and the privileges of natives being reciprocally given not only to the actual possessors of lands but to their heirs and assigns, it is a reasonable construction that it was the intention of the treaty that the operation of the treaty should be permanent, and not depend upon the continuance of a state of peace."

Sutton v. Sutton, 1 Rus. & M., 675. This decree was not appealed from.

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.

(4) TREATY OF 1818 RECOGNIZES THE EXISTENCE OF THESE TERRITORIAL RIGHTS AND

AFFIRMS THEIR CONTINUANCE.

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During the negotiations which preceded the treaty of Ghent the title of the United States to the Northeast Atlantic fisheries was one of the main subjects of discussion, and during this discussion the positions above taken were maintained by the United States as among the essentials of a permanent settlement of the questions at issue between the countries. In order, however, to relieve the issue of peace from all incidents which were not necessary to its immediate determination, the question of the fisheries was remanded to a subsequent distinct negotiation. This negotiation took place in London in 1817-18, Messrs. Gallatin and Rush being negotiators on behalf of the United States, and Mr. Goulburn, under-secretary of state, and Mr. Robinson, treasurer of the navy, negotiators on the part of Great Britain. The article which, in the treaty settled by them, as finally ratified, relates to the fisheries, is 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, harbors, 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, harbors, 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, harbors, 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 harbors 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 harbors 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."

There is in this convention not only a scrupulous avoidance of any expressions from which it might be inferred that the right to use the fisheries was or had ever been a grant from Great Britain to the United States, but the terms selected show that this right was recognized by

both parties as one of prior unbroken existence. The United States "renounce" certain incidents of a right of territoriality in the British waters and coast, which right of territoriality by the very acceptance of this "renunciation" Great Britain reaffirms. For this purpose the word "renounce" was introduced by the United States negotiators, and with a knowledge of this purpose it was finally acceded to by the British. It would have been easy to say, "the British Government grants to the United States the right to enter the northeastern British waters for shelter, wood, and water;" and, if so, there would be ground to argue, not merely that the war of 1812 had so far destroyed the prior title as to make a new grant necessary, but that the title to be thus granted was restricted by the limitations which are regarded as attaching to all grants of sovereignty. The article just quoted, however, excludes such a contention. It points to the fisheries as held in common by two sovereignties--the sovereignty of Great Britain and the sovereignty of the United States. It declares, not that Great Britain cedes any part of her sovereignty in the fisheries to the United States (for the sovereignty of the United States it recognizes as existing in the fisheries), but that the United States cedes certain incidents of its sovereignty in these fisheries to Great Britain. The term "re

nounce," as here used, is, it must be recollected, not merely a term of law, with its distinctive legal meaning, but it is a term invested by history with certain incidents which the British negotiators would have been among the first to remember and the last to dispute. "Renounce" had been the term used in numerous treaties in which Great Britain had been a party, in which one sovereign surrendered a portion of his rights to another sovereign, who, by accepting the renunciation, recognized as valid all other rights to the territory out of which the portions renounced were taken. Such renunciations are common when, after war, one of the contending sovereigns agrees to give up a portion of his title, such renunciation, with its correlative recognition of the remainder of the title, being accepted by the other sovereign as part of the bargain. (See supra, § 133.) We have illustrations of this in the various renunciations in the treaties of Westphalia, of Ryswick, of Utrecht, in which it was never questioned that the "renunciation" made by one sovereign and accepted by the other was a recognition by the latter of the former's sovereignty as to the particular title, claimed by him, except so far as concerns the part carved out by the renunciation; nor is there any doubt that the renunciation is, in such cases, to be strictly construed in favor of the sovereign renouncing. To the renunciation in the treaty of 1818 this rule is peculiarly applicable, for the following reasons:

The British commissioners were aware of the American claim :— (1) That the fisheries were conquered from France in a large measure by the colonies.

(2) That they were held by the colonies in common with the parent country, and that this tenancy in common, from the fact that the colonies were endowed at the time with distinct local government, made the fisheries, in such tenancy, the appurtenances of the colonies as distinct political entities.

(3) That this tenancy in common was recognized by the treaty of peace of 1783, and the same rights in the fisheries were assigned to the United States (incorporating as they did the colonies) as were assigned to Great Britain, the United States continuing to enjoy these fisheries in common with Great Britain.

(4) That the tenancy of these fisheries, being an appurtenance of the United States, constituting its marine boundaries (subject to such interest of Great Britain), was no more disturbed by the war of 1812 than were the land boundaries which separated the United States from the British possessions, the rule being that war between two sovereigns does not disturb their boundaries and appurtenances unless there be an express cession in the pacification with which the war concludes (supra, § 135).

(5) That the application in the treaty of peace of the doctrine of par tition to the fisheries was a part of a system the assertion of which was then, in view of British interests in America, far more important to Great Britain than to the United States.

* *

This was the basis on which rested the claim of the United States at the negotiations prior to the treaty of 1818. Those negotiations resulted in a compromise which that treaty embodied. The United States gained a recognition of a more extended area than that recognized by the treaty of 1783; they renounced, on behalf of their fishermen, what they till then possessed "any liberty heretofore enjoyed or claimed to take, dry, or cure fish" within three marine miles of any of the coasts, bays, creeks, or harbors 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 harbors for the purpose of shelter, of repairing damages therein, and of obtaining water, and for no other purpose whatever; with the further proviso "that they shall be under such restrictions as shall be necessary to prevent their taking or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them." Great Britain, therefore, recognized their rights to the fisheries outside of the three-mile belt, and within that belt recognized their territorial rights as existing prior to the revolution, the United States, however, agreeing to place themselves under such restrictions as would "prevent their taking or drying or curing fish therein," or "abusing the privileges hereby reserved to them." And the right of territoriality in Canada waters and shores thus recognized as existing in our fishermen brings with it the incidents of such territoriality. They may purchase, as may any other visitor to whom territorial rights are given, whatever is needed for their use. They must not "abuse" these "privileges." They must not smuggle, and what they buy must not be bought for the purpose of shore fishing. In other words, the treaty is not a grant of fisheries by Great Britain to the United States, but a grant by the United States to Great Britain of certain restrictions on fisheries which the United States already owned. Great Britain did not say to the United States, "Come here only for shelter, wood, and water"; but the United States said to Great Britain, "We, being here as tenants in common of these fisheries, agree not to take, cure, or dry fish within certain limits, or otherwise abuse the privileges hereby reserved to us."

Of similar rights of territoriality we have numerous illustrations: (1) Diplomatic agents, by the law of nations, and sometimes by treaty, possess certain rights of territoriality. This territoriality is restricted; yet it carries with it all incidents to its enjoyment. No one would argue that a diplomatic agent, when entering on or conducting his mis. sion, is obliged to bring with him food and raiment for his entire stay, and is not permitted to buy new supplies when his original supplies are exhausted. No one would argue that while on such mission he is precluded

from visiting old or new friends, or is debarred from any ordinary rights of civilized humanity. No one will pretend that if he traversed the United States in transit to another mission he would be precluded from making in the United States all purchases suitable for such mission. The territoriality granted to him brings with it all proper incidents, except when expressly restricted. (Supra, §§ 92 ff).

(2) Of consuls the same position may be taken. By the law of nations the limited territoriality granted to consuls has, in most countries, been defined, as is the case with the territoriality recognized in fishermen, by express treaty stipulations (supra, §§ 120 ff). Consuls, for instance, in certain treaties (e. g., that with France), are entitled to exercise certain functions without being subject to be disturbed by the local law (supra, §§ 98, 120, 121). As if to emphasize this, and to prevent the commingling of allegiances, it is provided in many treaties, and when not provided it is generally understood, that a consul is not to be a citizen of the state to which he is accredited (supra, § 113). But while, as is the case with the fishermen under the treaty of 1818, this territoriality is limited to the objects for which it is granted, in the one case as in the other, it carries with it all privileges incidental to such objects. No one disputes the right of consuls to purchase their supplies in the country in which this territoriality is granted to them, although, as in the case of the fishermen before us, while they can "purchase," they cannot “take.” (3) The officers and crews of foreign ships, of war have certain territorial rights in our ports. They are privileged to the hospitality of these ports; they may visit the shore, as may our fishermen on the Canada coasts, for specific purposes. Yet no one would pretend that when they thus visit the shore they are not entitled to make such purchases as are suitable, not merely for their immediate supply, but for their use in any future cruise they may desire to undertake. In certain portions of our coast, where fishing may be a pastime, it would be considered a strange thing to suggest that they could not buy bait on shore for such a pastime because they might throw out their lines within the three-mile zone. Be this as it may, there are few cruises on which a British man-of-war may expect to enter in which fishing may not become merely a pastime, but a useful means of obtaining fresh food. No one would imagine, however, that because the United States forbids the intrusion of foreign fishermen within its marine belt it would say to officers of British men-of-war to whom it grants the privilege of territoriality in its ports, "When you are on shore you must not buy bait, because fishing within three miles of the coast is forbidden." Yet buying bait is not a necessary incident to the life of the navy officer in whom the privilege of territoriality is recognized by international law if not by treaty, though it is a necessary incident to the life of the fishermen in whom the privilege of territoriality is recognized by the treaty of 1818. And this brings us again to the general proposition that a grant of territoriality for a specific purpose carries with it all the privileges incidental to the due exercise of such territoriality.

(4) Territorial rights in the United States given by treaty to British subjects have been regarded as carrying with them the necessary incidebts in like manner as those now claimed as belonging to United States fishermen when in Canada.

By Article III of the treaty of Great Britain and the United States of 1794

"It is agreed that it shall at all times be free to His Majesty's subjects and to the citizens of the United States, and also to the Indians dwell

S. Mis. 162-VOL. III- -4

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