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Relations with Great Britain.

clude the fishing vessels of the United States hereafter, from the liberty of fishing within one marine league of the shores of all the British territories in North America, and from that of drying and curing their fish on the unsettled parts of those territories, and, with the consent of the inhabitants, on those parts which have become settled since the Peace of 1783.

I then expressed to your Lordship my earnest hope that this determination had not been irrevocably taken, and stated the instructions which I had received to present to the consideration of His Majesty's Government the grounds upon which the United States conceive those liberties to stand, and upon which they deem that such exclusion cannot be effected without an infraction of the rights of the American people.

In adverting to the origin of these liberties, it will be admitted, I presume, without question, that, from the time of the settlements in North America, which now constitute the United States, until their separation from Great Britain, and their establishment as distinct sovereignties, these liberties of fishing, and of drying and curing fish, had been enjoyed by them in common with the other subjects of the British empire. In point of principle, they were pre-eminently entitled to the enjoyment; and, in point of fact, they had enjoyed more of them than any other portion of the empire; their settlement of the neighboring country having naturally led to the discovery and improvement of these fisheries, and their proximity to the places where they are prosecuted; and the necessities of their condition having led them to the discovery of the most advantageous fishing grounds, and given them facilities in the pursuit of their occupation in those regions which the remoter parts of the empire could not possess. It might be added, that they had contributed their full share, and more than their share, in securing the conquest from France of the provinces on the coasts on which these fisheries were situated.

It was, doubtless, upon considerations such as these, that in the treaty of peace between His Majesty and the United States of 1783, an express stipulation was inserted, recognising the rights and liberties which had always been enjoyed by the people of the United States in these fisheries, and declaring that they should continue to enjoy the right of fishing on the Grand Bank, and other places of common jurisdiction, and have the liberty of fishing, and of drying and curing their fish within the exclusive British jurisdiction of the North American coasts, to which they had been accustomed whilst themselves formed a part of the British nation. This stipulation was a part of that treaty by which His Majesty acknowledged the United States as free, sovereign, and independent States, and that he treated with them as such.

It cannot be necessary for me to prove, my Lord, that that treaty is not, in its general provisions, one of those which, by the common understanding and usage of civilized nations, is, or can be, considered as annulled by a subsequent war between the same parties. To suppose that

it is would imply the inconsistency and absurdity of a sovereign and independent State, liable to forfeit its right of sovereignty, by the act of exercising it on a declaration of war. But the very words of the treaty attest that the sovereignty and independence of the United States were not considered or understood as grants from His Majesty. They were taken and expressed as existing before the treaty was made, and as then only first formally recognised and acknowledged by Great Britain.

Precisely of the same nature were the rights and liberties in the fisheries to which I now refer. They were, in no respect, grants from the King of Great Britain to the United States; but the acknowledgment of them as rights and liberties enjoyed before the separation of the two countries, and which it was mutually agreed should continue to be enjoyed under the new relations which were to subsist between them, constituted the essence of the article concerning the fisheries. The very peculiarity of the stipulation is an evidence that it was not, on either side, understood or intended as a grant from one sovereign State to another. Had it been so understood, neither could the United States have claimed, nor would Great Britain have granted, gratuitously, any such concession. There was nothing, either in the state of things, or in the disposition of parties, which could have led to such a stipulation, as on the ground of a grant, without an equivalent, by Great Britain.

Yet such is the ground upon which it appears to have been contemplated as resting by the British Government, when their Plenipotentiaries at Ghent communicated to those of the United States their intentions as to the North American fisheries, viz: "That the British Government did not intend to grant to the United States, gratuitously, the privileges formerly granted by treaty to them, of fishing within the limits of the British sovereignty, and of using the shores of the British territories for purposes connected with the British fisheries."

These are the words in which the notice, given by them, is recorded in the protocol of conference of the 8th of August, 1814. To this notice the American Plenipotentiaries first answered, on the 9th of August, that they had no instructions from their Government to negotiate upon the subject of the fisheries; and afterwards, in their note of 10th November, 1814, they expressed themselves in the following terms:

"In answer to the declaration made by the British Plenipotentiaries respecting the fisheries, the undersigned, referring to what passed in the conference of the 9th of August, can only state that they are not authorized to bring into discussion any of the rights or liberties which the United States have heretofore enjoyed in relation thereto. From their nature, and from the peculiar character of the treaty of 1783, by which they were recognised, no further stipulation has been deemed necessary by the Government of the United States to entitle them to the full enjoyment of all of them."

Relations with Great Britain.

If the stipulation of the treaty of 1783 was one of the conditions by which His Majesty acknowledged the sovereignty and independence of the United States; if it was the mere recognition of rights and liberties previously existing and enjoyed, it was neither a privilege gratuitously granted, nor liable to be forfeited by the mere existence of a subsequent war. If it was not forfeited by the war, neither could it be impaired by the declaration of Great Britain, that she did not intend to renew the grant. Where there had been no gratuitous concession, there could be none to renew; the rights and liberties of the United States could not be cancelled by the declaration of Great Britain's intentions. Nothing could abrogate them but the renunciation of them by the United States themselves.

Among the articles of that same treaty of 1783, there is one stipulating that the subjects and citizens of both nations shall enjoy, forever, the right of navigating the river Mississippi, from its sources to the ocean. And although, at the period of the negotiations of Ghent, Great Britain possessed no territory upon that river, yet the British Plenipotentiaries, in their first note, considered Great Britain as still entitled to claim the free navigation of it, without offering for it any equivalent. And, afterwards, when offering a boundary line, which would have abandoned every pretension even to any future possession on that river, they still claimed, not only its free navigation, but a right of access to it, from the British dominions in North America, through the territories of the United States. The American Plenipotentiaries, to foreclose the danger of any subsequent misunderstanding and discussion upon either of these points, proposed an article recognising anew the liberties on both sides. In declining to accept it, the British Plenipotentiaries proposed an article engaging to negotiate, in future, for the renewal of both, for equivalents to be mutually granted. This was refused by the American Plenipotentiaries, on the avowed principle that its acceptance would imply the admission on the part of the United States that their liberties in the fisheries, recognised by the treaty of 1783, had been annulled, which they declared themselves in no manner authorized to concede. Let it be supposed, my Lord, that the notice given by the British Plenipotentiaries, in relation to the fisheries, had been in reference to another article of the same treaty; that Great Britain had declared she did not intend to grant again, gratuitously, the grant in a former treaty of peace, acknowledging the United States as free, sovereign, and independent States; or, that she did not intend to grant, gratuitously, the same boundary line which she had granted in the former treaty of peace: is it not obvious that the answer would have been that the United States needed no new acknowledgment of their independence, nor any new grant of a boundary line?-that, if their independence was to be forfeited, or their boundary line curtailed, it could only be by their own acts of renunciation, or of cession, and not by the declaration of the intentions of another

Government? And if this reasoning be just, with regard to the other articles of the treaty of 1783, upon what principle can Great Britain select one article, or a part of one article, and say, this particular stipulation is liable to forfeiture by war, or by the declaration of her will, while she admits the rest of the treaty to be permanent and irrevocable? In the negotiation of Ghent, Great Britain did propose several variations of the boundary line, but she never intimated that she considered the line of the treaty of 1783 as forfeited by the war, or that its variation could be effected by the mere declaration of her intentions. She perfectly understood that no alteration of that line could be effected but by the express assent of the United States; and, when she finally determined to abide by the same line, neither the British nor the American Plenipotentiaries conceived that any new confirmation of it was necessary. The Treaty of Ghent, in every one of its essential articles, refers to that of 1783 as being still in force. The object of all its articles, relative to the boundary, is to ascertain with more precision, and to carry into effect, the provisions of that prior compact. The treaty of 1783 is, by a tacit understanding between the parties, and without any positive stipulation, constantly referred to as the fundamental law of the relations between the two nations. Upon what ground, then, can Great Britain assume that one particular stipulation in that treaty is no longer binding upon her?

Upon this foundation, my Lord, the Government of the United States consider the people thereof as fully entitled, of right, to all the liberties in the North American fisheries which have always belonged to them; which, in the treaty of 1783, were, by Great Britain, recognised as belonging to them; and which they never have, by any act of theirs, consented to renounce. With these views, should Great Britain ultimately determine to deprive them of the enjoyment of these liberties by force, it is not for me to say whether, or for what length of time, they would submit to the bereavement of that which they would still hold to be their unquestionable right. It is my duty to hope that such measures will not be deemed necessary to be resorted to on the part of Great Britain; and to state that, if they should, they cannot impair the right of the people of the United States to the liberties in question, so long as no formal and express assent of theirs shall manifest their acquiescence in the privation.

In the interview with which your Lordship recently favored me, I suggested several other considerations, with the hope of convincing your Lordship that, independent of the question of rigorous right, it would conduce to the substantial interests of Great Britain herself, as well as to the observance of those principles of benevolence and humanity which it is the highest glory of a great and powerful nation to respect, to leave to the American fishermen the participation of those benefits which the bounty of nature has thus spread before them; which are so necessary

Relations with Great Britain.

in violation of the first article of the Treaty of
Ghent, and also by an abuse of the privileges al-
lowed to a flag of truce.

I have the honor to be, respectfully, &c.

Mr. Adams to Mr. Monroe.

It will be for the Government of the United States to determine whether the negotiation proposed by Lord Bathurst will be advisable; and I pray to be honored with the President's instructions on the subject as soon as possible. I am, with great respect, sir, &c.

to their comfort and subsistence; which they have constantly enjoyed hitherto; and which, far from operating as an injury to Great Britain, had the ultimate result of pouring into her lap a great portion of the profits of their hardy and laborious industry; that these fisheries afforded the means of subsistence to a numerous class of people in the United States, whose habit of life had been fashioned to no other occupation, and whose forLONDON, November 8, 1815. tunes had allotted them no other possession; SIR: Since I had the honor of writing you last, that to another, and, perhaps, equally numerous on the 31st ultimo, I have received from Lord class of our citizens, they afforded the means of Bathurst a note in answer to my letter to him reremittance and payment for the productions of lating to the fisheries; a copy of which is hereBritish industry and ingenuity, imported from with enclosed. I hope shortly to reply to this the manufactures of this united kingdom; that, note, and perceive nothing in it which can renby the common and received usages among civ-der the rights of the United States to the particiilized nations, fishermen were among those classes pation in the fisheries in any manner dubious. of human society whose occupations, contributing to the general benefit and welfare of the species, were entitled to a more than ordinary share of protection; that it was usual to spare and exempt them even from the most exasperated conflicts of national hostility; that this nation had, for ages, permitted the fishermen of another country to frequent and fish upon the coasts of this island, without interrupting them, even in times of ordinary war; that the resort of American fishermen to the barren, uninhabited, and, for the great part, uninhabitable rocks on the coasts of Nova Scotia, the Gulf of St. Lawrence, and Labrador, to use them occasionally for the only purposes of utility of which they are susceptible, if it must, in its nature, subject British fishermen on the same coasts to the partial inconvenience of a fair competition, yet produces, in its result, advantages to other British interests equally entitled to the regard and fostering care of their sovereign. By attributing to motives derived from such sources as these the recognition of these liberties by His Majesty's Government in the treaty of 1783, it would be traced to an origin certainly more conformable to the fact, and surely more honorable to Great Britain, than by ascribing it to the improvident grant of an unrequited privilege, or to a concession extorted from the humiliating compliance of necessity.



Lord Bathurst to Mr. Adams.

FOREIGN OFFICE, October 30, 1815. The undersigned, one of His Majesty's principal Secretaries of State, had the honor of receiving the letter of the Minister of the United States, dated the 25th ultimo, containing the grounds upon which the United States conceive themselves, at the present time, entitled to prosecute their fisheries within the limits of the British sovereignty, and to use British territories for purposes connected with the fisheries.

A pretension of this kind was certainly intimated on a former occasion, but in a manner so obscure that His Majesty's Government were not enabled even to conjecture the grounds upon which it could be supported.

His Majesty's Government have not failed to give to the argument contained in the letter of the 25th ultimo a candid and deliberate consideration; and, although they are compelled to resist the claim of the United States, when thus brought forward as a question of right, they feel every disposition to afford to the citizens of those States all the liberties and privileges connected with the fisheries which can consist with the just

In repeating with earnestness, all these suggestions, it is with the hope that from some, or all of them, His Majesty's Government will conclude the justice and expediency of leaving the North American fisheries in the state in which they have heretofore constantly existed, and the fishermen of the United States unmolested in the enjoy-rights and interests of Great Britain, and secure ment of their liberties.

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His Majesty's subjects from those undue molestations in their fisheries which they have formerly experienced from citizens of the United States. The Minister of the United States appears, by his letter, to be well aware that Great Britain has always considered the liberty formerly enjoyed by the United States of fishing within British limits, and using British territory, as derived from the third article of the treaty of 1783, and from that alone; and that the claim of an independent State to occupy and use at its discretion any portion of the territory of another, without compensation or corresponding indul

Relations with Great Britain.

gence, cannot rest on any other foundation than States, recognised that nation in its former diconventional stipulation. It is unnecessary to mensions, excepting so far as the jus belli had inquire into the motives which might have ori-interfered with them; and it was the object of ginally influenced Great Britain in conceding the Treaty of Ghent to cede such rights to terrisuch liberties to the United States, or whether tory as the jus belli had conferred. other articles of the treaty wherein these liberties Still less does the free navigation of the Misare specified did, or did not, in fact, afford an sissippi, as demanded by the British negotiators equivalent for them, because all the stipulations at Ghent, in any manner express or imply the profess to be founded on reciprocal advantages non-abrogation of the treaty of 1783 by the suband mutual convenience. If the United States sequent war. It was brought forward by them derived from that treaty privileges from which as one of many advantages they were desirous of other independent nations not admitted by treaty securing to Great Britain; and if in the first inwere excluded, the duration of the privileges stance demanded without equivalent, it left it must depend on the duration of the instrument open to the negotiators of the United States to by which they were granted; and if the war claim for their Government, in the course of their abrogated the treaty, it determined the privileges. conferences, a corresponding benefit. The AmeriIt has been urged, indeed, on the part of the Uni- can Minister will recollect that propositions of ted States, that the treaty of 1783 was of a pecu- this nature were at one time under discussion, liar character, and that, because it contained a and that they were only abandoned at the time recognition of American independence, it could that Great Britain relinquished her demand to not be abrogated by a subsequent war between the navigation of the Mississippi. If, then, the the parties. To a position of this novel nature demand on the part of Great Britain can be supGreat Britain cannot accede. She knows of no posed to have given any weight to the present exception to the rule, that all treaties are put an argument of the United States, the abandonment end to by a subsequent war between the same of that demand must have effectually removed it. parties: she cannot, therefore, consent to give to It is by no means unusual for treaties containher diplomatic relations with one State a differing recognitions and acknowledgments of title, ent degree of permanency from that on which in the nature of perpetual obligation, to contain, her connexion with all other States depends. likewise, grants of privileges liable to revocation. Nor can she consider any one State at liberty to The treaty of 1783, like many others, contained assign to a treaty made with her such a peculiarity provisions of different characters-some in their of character as shall make it, as to duration, an ex- own nature irrevocable, and others of a tempoception to all other treaties, in order to found, on rary nature. If it be thence inferred that, be-. a peculiarity thus assumed, an irrevocable title to cause some advantages specified in that treaty all indulgences, which have all the features of would not be put an end to by the war, therefore temporary concessions. all the other advantages were intended to be equally permanent, it must first be shown that the advantages themselves are of the same, or at least of a similar character; for the character of one advantage recognised or conceded by treaty can have no connexion with the character of another, though conceded by the same instrument, unless it arises out of a strict and necessary connexion between the advantages themselves. But what necessary connexion can there be between a right to independence and a liberty to fish within British jurisdiction, or to use British territory? Liberties within British limits are as capable of being exercised by a dependent, as by an independent State, and cannot, therefore, be the necessary consequence of independence.

The Treaty of Ghent has been brought forward by the American Minister as supporting, by its reference to the boundary line of the United States, as fixed by the treaty of 1783, the opinion that the treaty of 1783 was not abrogated by the war. The undersigned, however, cannot observe in any one of its articles any express or implied reference to the treaty of 1783 as still in force. It will not be denied that the main object of the Treaty of Ghent was the mutual restoration of all territory taken by either party from the other during the war. As a necessary consequence of such a stipulation, each party reverted to their boundaries as before the war, without reference to the title by which these possessions were acquired, or to the mode in which their boundaries had been previously fixed. In point of fact, the United States had before acquired possession of territories asserted to depend on other titles than those which Great Britain could confer. The Treaty of Ghent, indeed, adverted, as a fact of possession, to certain boundaries of the United States which were specified in the treaty of 1783; but surely it will not be contended that therefore the treaty of 1783 was not considered at an end. It is justly stated by the American Minister that the United States did not need a new grant of the boundary line. The war did not arise out of a contested boundary; and Great Britain, therefore, by the act of treating with the United

The independence of a State is that which cannot be correctly said to be granted by a treaty, but to be acknowledged by one. In the treaty of 1783, the independence of the United States was certainly acknowledged, not merely by the consent to make the treaty, but by the previous consent to enter into the provisional articles executed in November, 1782. The independence might have been acknowledged without either the treaty or the provisional articles; but, by whatever mode acknowledged, the acknowledgment is, in its own nature, irrevocable. A power of revoking, or even of modifying it, would be destructive of the thing itself; and, therefore, all such power is necessarily renounced when the

Relations with Great Britain.

acknowledgment is made. The war could not put an end to it, for the reason justly assigned by the American Minister, because a nation could not forfeit its sovereignty by the act of exercising it; and for the further reason, that Great Britain, when she declared war on her part against the United States, gave them, by that very act, a new recognition of their independence.

The nature of the liberty to fish within British limits, or to use British territory, is essentially different from the right to independence, in all that may reasonably be supposed to regard its intended duration. The grant of this liberty has all the aspect of a policy temporary and experimental, depending on the use that might be 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 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 right of the United States has been asserted upon other arguments, which appear to the undersigned not altogether consistent with those that had been previously advanced. It has been argued by the Minister of the United States that the treaty of 1783 did not confer upon the United States the liberty of fishing within British jurisdiction, and using British territory, but merely recognised a right which they previously had; and it has been thence inferred that the recognition of this right renders it as perpetual as that of their independence.

If the treaty of 1783 did not confer the liberties in question, the undersigned cannot understand why, in their support, the point should have been so much pressed, that the treaty is in force notwithstanding the subsequent war. If, as When, therefore, Great Britain, admitting the stated by the American Minister, the time of the independence of the United States, denies their settlement of North America was the origin of right to the liberties for which they now contend, the liberties of the United States in respect to it is not that she selects from the treaty, articles, the fisheries, and their independence, as recogor parts of articles, and says, at her own will, nised in 1783, was, as further argued by him, the this stipulation is liable to forfeiture by war, and mere recognition of rights and liberties previously that it is irrevocable; but the principle of her existing, (which must have been in virtue of their reasoning is, that such distinctions arise out of independence,) it would seem to follow that their the provisions themselves, and are founded on independence was recognised from the time of the very nature of the grants. But the rights ac- the settlement of North America-for no other knowledged by the treaty of 1783 are not only period can be assigned. The undersigned is todistinguishable from the liberties conceded by tally unable to collect when the American Minthe same treaty, in the foundation upon which ister considers the independence of his country they stand, but they are carefully distinguished to have commenced; yet this is a point of no in the treaty of 1783 itself. The undersigned small importance, if other rights are to be reprebegs to call the attention of the American Minis-sented as coeval with it, or dependent on it. ter to the wording of the first and third articles, to which he has often referred, for the foundation of his arguments. In the first article, Great Britain acknowledges an independence already expressly recognised by the Powers of Europe and by herself, in her consent to enter into provisional articles, of November, 1782. In the third article, Great Britain acknowledges the right of the United States to take fish on the banks of Newfoundland and other places, from which Great Britain has no right to exclude an independent nation. But they are to have the liberty to cure and dry them in certain unsettled places within His Majesty's territory. If these liberties, thus granted, were to be as perpetual and indefeasible as the rights previously recognised, it is difficult to conceive that the Plenipotentiaries of the United States would have admitted a variation of language so adapted to produce a different impression; and, above all, that they should have admitted so strange a restriction of a perpetual and indefeasible right as that with which the article concludes, which leaves a right so practical and so beneficial as this is admitted to be, dependent on the will of British subjects, in their character of inhabitants, proprietors, or possessors of the soil, to prohibit its exercise altogether.

It is surely obvious that the word right is, throughout the treaty, used as applicable to what

As to the origin of these privileges, in point of fact, the undersigned is ready to admit that, so long as the United States constituted a part of the dominions of His Majesty, the inhabitants had the enjoyment of them, as they had of other political and commercial advantages, in common with his Majesty's subjects. But they had, at the same time, in common with His Majesty's other subjects, duties to perform; and when the United States, by their separation from Great Britain, became released from the duties, they became excluded also from the advantages of British subjects. They cannot, therefore, now claim, otherwise than by treaty, the exercise of privileges belonging to them as British subjects, unless they are prepared to admit, on the part of Great Britain, the exercise of the rights which she enjoyed previous to the separation.

If it be contended, on the part of the United States, that, in consequence of having been once a part of the British dominions, they are now entitled, as of right, to all the privileges which they enjoyed as British subjects, in addition to those which they have as an independent people, the undersigned cannot too strongly protest against such a doctrine; and it must become doubly necessary for Great Britain to hesitate in conceding the privileges which are now the subject of discussion, lest, by such a concession, she should be

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