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Explanatory Memorandum.

The American plenipotentiaries presented for consideration an article on the subject of certain fisheries. They stated, at the same time, that as the United States considered the liberty of taking, drying, and curing fish, secured to them by the treaty of peace of 1783, as being unimpaired, and still in full force for the whole extent of the fisheries in question, whilst Great Britain considered that liberty as having been abrogated by war; and as, by the article now proposed, the United States offered to desist from their claim to 89 a certain portion of the said fisheries, that offer was made

with the understanding that the article now proposed, or any other on the same subject which might be agreed on, should be considered as permanent, and, like one for fixing boundaries between the territories of the two parties, not to be abrogated by the mere fact of a war between them; or that, if vacated by any event whatever, the rights of both parties should revive and be in full force, as if such an article had not been agreed to.

No. 35.-1818, October 6: Protocol of the Fifth Conference held between the American and British Plenipotentiaries at Whitehall.

Present: Mr. Gallatin, Mr. Rush, Mr. Robinson, Mr. Goulburn. The protocol of the preceding conference was agreed upon and signed.

The British plenipotentiaries gave in the five annexed articles, on the fisheries, the boundary, the Mississippi, the intercourse between Nova Scotia and the United States, and the captured slaves. (A, B, C, D, E.)

It was agreed to meet again on the 9th instant.

ALBERT GALLATIN,

RICHARD RUSH,

FREDERICK JOHN ROBINSON,
HENRY GOULBURN.

ARTICLE A.

It is agreed that the inhabitants of the United States shall have liberty to take fish, of every kind, on that part of the western coast of Newfoundland which extends from Cape Ray to the Quirpon Islands, and on that part of the southern and eastern coasts of Labrador which extends from Mount Joli to Huntingdon Island; and it is further agreed that the fishermen of the United States shall have liberty to dry and cure fish in any of the unsettled bays, harbours, and creeks of the said south and east coasts of Labrador, so long as the same shall remain unsettled; but as soon as the same, or any part of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground.

And it is further agreed that nothing contained in this article shall be construed to give to the inhabitants of the United States any liberty to take fish within the rivers of His Britannic Majesty's territories, as above described; and it is agreed, on the part of the United States, that the fishermen of the United States resorting to the mouths of such rivers shall not obstruct the navigation thereof, nor wilfully injure nor destroy the fish within the same, either by setting nets across the mouths of such rivers, or by any other means what

ever.

His Britannic Majesty further agrees that the vessels of the United States, bona fide engaged in such fishery, shall have liberty to enter the bays and harbours of any of His Britannic Majesty's dominions in North America, for the purpose of shelter, or of repairing damages therein, and of purchasing wood and obtaining water, and for no other purpose; and all vessels so resorting to the said bays and harbours shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein.

It is further well understood that the liberty of taking, drying, and curing fish, granted in the preceding part of this article, shall not be construed to extend to any privilege of carrying on trade with any of His Britannic Majesty's subjects residing within the limits hereinbefore assigned for the use of the fishermen of the United States, for any of the purposes aforesaid.

And in order the more effectually to guard against smuggling, it shall not be lawful for the vessels of the United States, engaged in the said fishery, to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of the fishery, or the support of the fishermen whilst engaged therein, or in the prosecution of their voyages to and from the said fishing grounds. And any vessel of the United States which shall contravene this regulation may be seized, condemned, and confiscated, together with her cargo.

ARTICLE B.

It is agreed that a line drawn from the most northwestern point of the Lake of the Woods along the forty-ninth parallel of latitude, or, if the said point shall not be in the forty-ninth parallel of north latitude, then that a line drawn due north or south, as the case may be, until it shall intersect the said parallel of north latitude, and from the point of such intersection, due west, along and with the said parallel, shall be the line of demarcation between the territories of His Britannic Majesty and those of the United States; and that the said line shall form the southern boundary of the said territories of His Britannic Majesty, and the northern boundary of the territories of the United States, from the said Lake of the Woods to the Stony Mountains; and, in order to prevent any disputes as to the territorial rights of either of the contracting parties on the Northwest Coast of America, or anywhere to the westward of the Stony Mountains, it is agreed that so much of the said country as lies between the fortyfifth and forty-ninth parallels of latitude, together with its harbours, bays, and creeks, and the navigation of all rivers within the same, shall be free and open to the subjects and citizens of the two States, respectively, for the purpose of trade and commerce; it being well understood that, although, by virtue of this arrangement, the two

high contracting parties agree not to exercise as against each any other sovereign or territorial authority within the above-mentioned country lying between the forty-fifth and forty-ninth parallels of latitude, this agreement is not to be construed to the prejudice of any claim to which either of the two high contracting parties may have to any territorial authority in any part of the country lying within the said limits: nor shall it be taken to affect the claim of any other Power or State to any part of the said country; the only object of the two high contracting parties being to prevent disputes and differences between themselves.

ARTICLE C.

It is further agreed that the subjects of His Britannic Majesty shall have and enjoy the free navigation of the River Mississippi from its source to the ocean, and shall at all times have free access from such place as may be selected for that purpose, in His Britannic Majesty's territories, to the River Mississippi, with their goods, wares, and merchandise, the importation of which into the United States shall not be entirely prohibited, on the payment of the same duties as would be payable on the importation of the same article into the Atlantic ports of the United States.

ARTICLE D.

British vessels shall have liberty to export, from any of the ports of the United States to which any foreign vessels are permitted to come, to the ports of Halifax, in His Britannic Majesty's province of Nova Scotia; to the port of St. John's, in His Britannic Majesty's province of New Brunswick, and to any other port within the said provinces of Nova Scotia or New Brunswick, to which vessels of any other foreign nation shall be admitted, the following articles, being of the growth, produce, or manufacture of the United States, viz: scantling, planks, staves, heading-boards, shingles, hoops, horses, neat cattle, sheep, hogs, poultry, or live stock of any sort, bread, biscuit, flour, pease, beans, potatoes, wheat, rice oats, barley, or grain of any sort, pitch, tar, turpentine, fruits, seeds, and tobacco.

And vessels of the United States shall in like manner, have liberty to import from any of the aforesaid ports of the United States into any of the aforesaid ports within the said provinces of Nova Scotia and New Brunswick, the above-mentioned articles, being of the growth, produce, or manufacture of the United States.

British vessels shall also have liberty to import from any of the aforesaid ports within the provinces of Nova Scotia and New Brunswick, into any of the aforesaid ports of the United States, gypsum and grindstones, or any other articles, being of the growth, produce, or manufacture of the said provinces, and, also, any produce or manufacture of any part of His Britannic Majesty's dominions, the importation of which into the United States shall not be entirely prohibited.

And vessels of the United States shall have liberty to import from the said provinces to the said United States, slates, gypsum, and grindstones, or any other article, being of the growth, produce, or manufacture of any part of His Britannic Majesty's dominions, the importation of which into the United States from any other place shall not be entirely prohibited.

The vessels of either of the two parties employed in the trade provided for by this article shall be admitted in the ports of the other party, as above mentioned, without paying any other or higher duties or charges than those payable in the same ports by the vessels of such other party. The same duties shall also be paid, respectively, in the dominions of both parties, on the importation and on the exportation of the articles which may be imported or exported, by virtue of this article; and the same bounties shall also be allowed on the exportation thereof, whether such importation or exportation shall be in vessels of the United States or in British vessels.

ARTICLE E.

Whereas it was agreed by the first article of the treaty of Ghent, that "all territory, places, and possessions whatsoever, taken by either party from the other during the war, or which may be taken after the signing of this treaty, excepting only the islands hereinafter mentioned, shall be restored without delay, and without causing any destruction, or carrying away any of the artillery, or other public property, originally captured in the said forts or places, and which shall remain therein upon the exchange of the ratifications of this treaty, or any slaves or other private property;" and whereas doubts have arisen whether certain slaves, originally captured in certain forts and places belonging to the United States, and removed therefrom, but remaining within the territories of the United States, or on board the ships of His Britannic Majesty, lying within the harbours of the United States at the time of the exchange of the ratifications of the said treaty, are to extend under the above-recited provisions of the said treaty, the high contracting parties do hereby agree to refer the said doubts to some friendly Sovereign or State, to be named for that purpose; and the high contracting parties engage to consider the decision of such friendly Sovereign or State to be final and conclusive on all the matters so referred.

91

No. 36.-1818, October 7: Extract from Remarks on Articles from Messrs. Gallatin and Rush to Messrs. Robinson and Goulburn. LONDON, October 7, 1818. Mr. Gallatin and Mr. Rush present their compliments to Mr. Robinson and Mr. Goulburn, and beg leave to send them the enclosed paper, containing some remarks on the articles handed to them at the conference yesterday. They are to be considered as unofficial, according to the intimation given yesterday, when they were promised, and have been drawn up merely under the hope that, by possessing the British plenipotentiaries of some of the views of the American plenipotentiaries before the next meeting on the 9th, the progress of the negotiation may be accelerated.

Fisheries.

The American plenipotentiaries are not authorised by their instructions to assent to any article on that subject which shall not

secure to the inhabitants of the United States the liberty of taking fish of every kind on the southern coast of Newfoundland, from Cape Ray to the Ramea Islands, and on the coasts, bays, harbours, and creeks from Mount Joli, on the southern coast of Labrador, to and through the Straits of Belleisle, and thence northwardly, indefinitely, along the coast; and also, the liberty of drying and curing fish in any of the unsettled bays, harbours, and creeks of Labrador and of the southern coast of Newfoundland, as above described; with the proviso respecting such of the said bays, harbours, and creeks as may be settled.

The liberty of taking fish within rivers is not asked. A positive clause to except them is unnecessary, unless it be intended to comprehend under that name waters which might otherwise be considered as bays or creeks. Whatever extent of fishing-ground may be secured to American fishermen, the American plenipotentiaries are not prepared to accept it on tenure or on conditions different from those on which the whole has heretofore been held. Their instructions did not anticipate that any new terms or restrictions would be annexed, as none were suggested in the proposals made by Mr. Bagot to the American Government. The clauses forbidding the spreading of nets, and making vessels iiable to confiscation in case any articles not wanted for carrying on the fishery should be found on board, are of that description, and would expose the fishermen to endless

vexations.

Mississippi.

The American plenipotentiaries are not authorised to agree to any condition that would bring the British in contact with the Mississippi. The right to the navigation of that river could only be derived from the treaty of 1783; and, if viewed as a matter of compromise, that right is much less valuable and important than the portion of the fisheries which the United States would lose by the agreement, even on the terms proposed by them.

Boundary.

That portion of the article which relates to the country west of the Stony Mountains cannot be agreed to in its present shape. The American plenipotentiaries cannot consent to throw in a common stock that part only of the country to which the United States deny the claim of Great Britain, and which lies within the same latitudes as their own territories east of the Stony Mountains; thus, also, implying the exclusion of their citizens from the trade on the northwest coast of America (north of 49°), which they have enjoyed without interruption for a number of years, and as early as the British.

Nor are they authorised to agree to expressions implying a renun ciation of territorial sovereignty, although perfectly disposed not to insist on an extension of the line of demarcation to that country. They will propose either that the whole of the article relating to that subject, and immediately following the words "to the Stony Mountains," should be omitted, inserting, in lieu thereof, a proviso similar to what had on former occasions been agreed to, viz: "But nothing in the present article shall be construed to extend to the northwest coast of America, or to territories belonging to or claimed

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