ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 315 



Sir Charles Eussell. — That goes without saying; that is not tlie 

 point. 



Mr. Phelps. — Not as a right; but as under the Treaty with Great 

 Britain. 



Sir Charles Eusselt.. — There are certain fishing rights, undoubt- 

 edly, that the United States have under the Treaty with Great Britain. 

 That is true; I am going to show what they are, and that they are in 

 territorial waters; and also that ontside territorial waters the United 

 States has those rights not under Treaty at all, but as a recognized 

 part of the general right of mankind, and I will justify this by refer- 

 ence to the Treaty which is before me. I understand my friend Mr. 

 Phelps did not mean to intimate that he was differing from Mr. Carter 

 and that there was, now, asserted any right inconsistent with the gen- 

 eral right of all mankind to fish in extra-territorial waters. 



Mr. Phelps. — What I meant to say was that the question having 

 •been decided by Treaty between Great Britain and the United States, 

 this right of fishing in the open sea had never come up as an actual 

 question since, that I know of. 



There has been great discussion about territorial rights. The case is 

 cited for the purpose of showing that it was claimed and conceded on 

 both sides that the fishery to a great distance out into the sea belonged 

 to Great Britain as an apjjurtenance to its territory. 



Sir Charles Russell. — That is a little different from the way in 

 which it is put in the case; nor is it the historical fact. I will show 

 what the exact case is in a moment, but my friend will see that in page 

 156 of his Argument he puts it differently. 



He says at the bottom of page 156 : 



Upon tliis view entertained by both nations and by all the eminent diplomatists 

 and statesmen who participated in making or disciissini;' these treaties, the conten- 

 tion turned upon the true construction ol the grant of fishing rights contained in 

 the treaty of 1783. It was claimed by the British Government that this was a pure 

 grant of rights belonging exclusively to Great Britain, and to which the Americans 

 could have no claim, except so far as they were conferred by treaty. 



I shall show that that is not so. Then my learned friend goes on : 



It was contended on the other side, that the Americans, being British subjects 

 1097 up to the time of the Revolutionary War, entitled and accustomed as such to 

 share in these fisheries, the acquisition of which from France had been largely 

 due to their valour and exertions, their right to participate in them was not lost by 

 the Revolution, nor by the change of government which it brought about, when con- 

 summated by tlie treaty of 1783. And that the provisions of that treaty on the sub- 

 ject were to be construed, not as a grant of a new right, but as a recognition of the 

 American title still to participate in a property that before the war was common to 

 both countries. Which side of this contention was right it is quite foreign to the 

 present purpose to consider. It is enough to perceive that it never occurred to the 

 United States Government or its eminent representatives to claim, far less to the 

 British Government to concede, nor to any diplomatist or writer, either in 1783 or 

 1815, to conceive, that these fisheries, extending far beyond and outside of any limit 

 of territorial jurisdiction over the sea that ever was asserted there or elsewhere, 

 were the general property of mankind, or that a participation in them was a part 

 of the liberty of the open sea. If that proposition could have been maintained, the 

 right of the Americans would have been plain and clear. 



Now that is an entire misconception, as I conceive. In the first 

 instance, let me point out that so far as any special rights were con- 

 ceded by France — I liave told the Tribunal theie were such — they were 

 conceded by Treaty. So as regards Spain; but those Treaties only 

 bound Spain and only bound France, and would not have interfered 

 one iota with the right of any other nation over the area affected by 

 them. It bound them and bound them only. But here is the Treaty 

 of 1783 to speak for itself, and you will see that it recognizes the right 



