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fishery rights and liberties were not abrogated by war, was again insisted on, and those portions of the coast fisheries re
their going to the nearest port of that power or state, to which they belong."
These articles are of slight importance in themselves, though the two first contain a deviation from the British practice during the last war-vessels not having heard of a blockade were not liable to capture for the first attempt to enter the invested port, and provisions are exempted from the list of contrabands, though most of the articles necessary for ship building were included.
October, and ratified by the United States, January 28, 1819, and by England, November 2, 1818.
"ART. 1. 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, harbours 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 Ramian 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, harbours and creeks, from Mount Joly on the southern coast of Labrador, to and through the Straits of Bellisle, 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, harbours 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 harbours, 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 harbours, for the purpose of shelter and of repairing damages therein, of purchasing wood,
linquished on this occasion, were renounced by express provision, fully implying, that the whole right was not consid
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.
"ART. 2. It is agreed, that a line drawn from the most north western point of the Lake of the Woods, along the forty-ninth parallel of north latitude, or if the said point shall not be in the forty-ninth parallel of north latitude, then that a line drawn from the said point due north or south, as the case may be, until the said line 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 demarkation between the territories of the United States and those of his Britannic Majesty, and that the said line shall form the northern boundary of the said territories of the United States, and the southern boundary of the territories of his Britannic Majesty, from the Lake of the Woods to the Stony Mountains.
"ART. 3. It is agreed, that any country that may be claimed by either party on the northwest coast of America, westward of the Stony Mountains, shall, together with its harbours, bays and creeks, and the navigation of all rivers within the same, be free and open, for the term of ten years from the date of the signature of the present convention, to the vessels, citizens and subjects, of the two powers: it being well understood, that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country, nor shall it be taken to affect the claims of any other power or state to any part of the said country; the only object of the high contracting parties, in that respect, being to prevent disputes and differences amongst themselves.
"ART. 4. All the provisions of the convention "to regulate the commerce between the territories of the United States, and of his Britannic Majesty," concluded at London, on the third day of July, in the year of our Lord one thousand eight hundred and fifteen, with the exception of the clause which limited its duration to four years, and excepting, also, so far as the same was affected by the declaration of his Majesty respecting the island of St. Helena, are hereby extended and continued in force for the term of ten years from the date of the signature of the present convention, in the same manner as if all the provisions of the said convention were herein specially recited. "ART.
ered a new grant. The American commissioners in 1814, were instructed not to bring that subject into discussion, and the proposition, ultimately submitted, securing the rights and liberties, as in the treaty of '83, arose from a stipulation, offered by the British commission, respecting the Mississippi, a right invested by the American with the same permanent character, as the fisheries themselves. The English, knowing the slight comparative value of the Mississippi, proposed, the two parties should resume their respective rights in consideration, respectively, of a full equivalent, but this proposition was not accepted, for, in the opinion of one party, the right remained entire, and lest it should be impaired by implication, the American commission offered to recognise the right of Great Britain to the navigation, and declined the boundary of the parallel of the 49th degree to the north,
"ART. 5. 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 said forts or places, which shall remain therein upon the exchange of the ratifications of this treaty, or any slaves, or other private property ;" and whereas, under the aforesaid article, the United States claim for their citizens, and as their private property, the restitution of, or full compensation for, all slaves who, at the date of the exchange of the ratifications of the said treaty, were in any territory, places, or possessions, whatsoever, directed by the said treaty to be restored to the United States, but then still occupied by the British forces, whether such slaves were, at the date aforesaid, on shore, or on board any British vessel, lying in waters within the territory or jurisdiction of the United States; and whereas differences have arisen whether, by the true intent and meaning of the aforesaid article of the treaty of Ghent, the United States are entitled to the restoration of, or full compensation for, all or any slaves, as above described, the high contracting parties hereby agree to refer the said differences to some friendly sovereign or state, to be named for that purpose; and the high contracting parties further engage to consider the decision of such friendly sovereign or state to be final and conclusive on all the matters referred."
(since agreed on) not choosing, even, to accept an implied renunciation on the part of Great Britain to that navigation.
The instructions for the Commissioners in 1818 do not agree precisely with the position, assumed at Ghent, respecting the Mississippi, and it may, also, be observed, that the whole third article of the treaty of '83 does not appear to convey, in one respect, either a perfect, or permanent right. In the first place, our fishermen were not allowed to cure or dry their fish on any part of Newfoundland, or any part of Labrador or of Magdalen Islands or of Nova Scotia, in spots, where settlements were or should be made. Without the liberty to cure and dry, the coast fisheries, carried on in these places, lost much of their value, and as the fish taken on those grounds are, for the most part, small, they would not be so valuable as even the deep water bank fisheries. The article, therefore, not only entirely excluded our fishermen from Newfoundland, but in certain contingencies from all British shores. Before the revolution, our privileges and rights were as extensive as those of other British subjects. The right was, therefore, retained, much shorn and mutilated, and depending, for the exercise of a portion of it, on a condition, subject to a gradual decay. The convention of 1818 has still farther narrowed and curtailed the fishing grounds, and, though the whole negotiation proceeded on the basis, that the late hostilities had not abrogated several of the stipulations of the treaty of 1783, yet as to one article, the American commission consented to a considerable abridgment of the rights, or liberties (to use the treaty word) of this country, and as to another, (the Mississippi) they declined to entertain any discussion respecting it. Still, both these articles, according to the doctrines of the Ghent negotiation, were in the nature of a permanent, irrevocable grant. A certain part of the doctrine, as to the effect of war on the treaty of '83, is undoubtedly sound, but it appears to us, the remark is equally just, that certain portions of the fishing rights or liberties have, from the commencement of the first negotiation with England, been made the subject of treaty
regulation. These remarks, of course, do not apply to the bank, or deep water fisheries, about which all formal stipulations are needless.
We shall now proceed to relate the incidents, that led to the introduction of this subject into the negotiation for the convention of 1818. In the summer after the peace of Ghent, our fishing vessels were warned off the British coasts by regular endorsements on their enrolment and license to the distance, even, of sixty miles ;-and those, that had gone into creeks and inlets of Nova Scotia, were detained and sent to Halifax. The first of these acts was disowned by the British government, though, at the same time, it was intimated to be their intention, thereafter, to exclude American fishing vessels one marine league from their shores in British America ;-and in the other instance, the vessels, detained, having been tried in the Admiralty Court in Halifax, were released on the ground, as we understand the matter, not that the rights of the Americans to fish on British coasts were not dissolved by the war of 1812, but that condemnations could not take place without an act of Parliament. These circumstances, coupled with the declaration of the British government, just mentioned, left this country no alternative, but to subject, to a fresh examination, the stipulations on the subject in the first treaty of peace. Having in a former part of this work exhibited an outline of the argument, upon which rested the claim on the part of the United States, we may, without omitting any important considerations, state the general ground, upon which it was again vindicated, as well as the reply of the British government, though this will be presented with more detail, having only as yet adverted to one view of the subject.
"It cannot be necessary to prove that the treaty of '83 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