ORAL ARGUMENT OF SIR CHARLES RUSBELL, Q. C. M. P. 317 



House of Repieseutatives, of January 18th 1887; and referring to this 

 Treaty, they say: 



It will be observed that this Article, in coatinuing, confirming, and establishing 

 the thirteen States and their inhabitants in the taking of fish on the banks, in the 

 gulf, and in the sea, nses the word "rights"; but uses the word "liberty" in con- 

 firming to American fishermen the taking of fish on the coasts, bays, and creeks of 

 every part of the British dominions in Aiiu rica. The word " rights " is thus applied 

 to fishing in the open sea, which by public law is common to all nations, and was 

 intended to affirm that Great Britain did not claim to hold by Treaty engagements, 

 or in any other manner, any exclusive right of fivshing therein. The word " lib- 

 erty" is thus applied to taking fish, to drying and curing fish, on what was, anterior 

 to the Treaty, within the jurisdiction, or territorial waters, of Great Britain, but an 

 exclusive right of taking fish therein w as not hers. "Liberty", as thus used, implies 

 a freedom from restraint or interference in fishing along the British coasts. 



The distinction you see, therefore, is plainly and clearly drawn 

 1099 by the American representatives themselves. Again, at a later 

 page, page 38 of the same Keport they say : 



England contended that the word "right'' in the Treaty of 1783 was used as appli- 

 cable to what the United States were to enjoy in virtue of a recognized independ- 

 ence, and the word "liberty" to what they were to enjoy as concessions strictly 

 dependent on the existence of the Treaty ia full force, which concessions fell, as 

 England asserted, on the declaration of war by the United States, and would not be 

 revived excepting for an equivalent. 



Therefore, so far away as 1812 the contest between the United States 

 and Great Britain took this form. Great Britain said: so far as the fishing 

 in non-territorial waters is concerned, you have the same rights at Brit- 

 ish subjects have, and as all the world has; but as regards these special 

 liberties which were given to you under the Treaty of 1783, which 

 enabled you to come into territorial waters, and into the creeks and 

 l)laces where you w^ould not otherwise have a right — as regards those 

 wliich are given to you by the Treaty, your title to which is by the 

 Treaty; those rights are annulled by the fact of war, which has, by 

 international law, put an end to the Treaty. 



I might almost leave the matter there, but it is perhaps better that I 

 should go through it. I have read what the Kepresentative Committee 

 of the United States said in 1787. In 1788 the Senate Committee on 

 Foreign Kelations, referring to the Treaty of 1783, reported in these 

 words. My learned friends probably have the reference to the docu- 

 ment. It is N° 109 of the fiftli Congress, first session, page 2, Miscel- 

 laneous Documents. They there report as to the open sea fishing. It 

 was merely a recognition of a right common to all nations, and as to 

 the fishiug on the coasts, bays and creeks within the municipal dominion 

 of His Majesty. It was an averment that these i ights, theretofore exist- 

 ing in all British subjects, should have belonged as of right to those 

 British subjects who by the rebellion had become the citizens of an inde- 

 pendent nation. You observe therefore the recognition of the view 

 which I am now putting before you. I am reading these out of order 

 of date, because they refer back to the Treaty of 1783. Tliere was the 

 war of 1812, the Treaty of Peace of 1815, and the Fishery Treaty of 

 1818. The document is to be found in the 3rd volume of Wharton's 

 Digest of International Law, at page 301. In 1814 Commissioners from 

 Great Britain and the United States met at Ghent for the purpose of 

 opening negotiations for peace. What I am about to read is an extract 

 from the instructions given to the British Commissioners on the subject 

 of the fisheries that will present tlie view on both sides of the question. 

 These are of the 28th July, 1814, State Papers, volume 1, page 1543: 



But the point upon which you must be quite explicit from the outset of the nego- 

 tiations is the construction of the Treaty of 1783 with relation to the Fisheries. You 



