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. A. E "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 "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 respective 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. ** IIo 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 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. See App., § 303. 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. § 304. 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 |