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



will observe that the 3rd Article of that Treaty consists of two distinct branchea. 

 The first which relates to the open sea fisheries we consider of perniancut obli- 



1100 gation, being a recognition of the general right which all nations have to 

 freqnent and take fish on the high seas. The latter branch is, on the contrary, 



considered as a mere conventional arrangement between the two States, and as snch 

 to have been annulled by the war. Yon will see it is an entirely erroneous view to 

 suggest that at any time and in any part of this discussion, Great Britain was assert- 

 ing that the open sea was not open to all mankind as between the United States and 

 herself, or that she was conferring upon the United .States a privilege which she did 

 not have as a general right. 



The matter is important, but I am afraid I am wearying the Tribunal 

 by reading too much. 



The President. — Well, it is a weighty comi)arisou and of great 

 interest. 



Sir Charles Kussell. — I read now from the communication from 

 Lord Batlmrst, the then Foreign Secretary of Great Britain, 30th Octo- 

 ber, 1815. I am reading from the volume of the American State Papers, 

 Class 1, Foreign Eelations, vol. 4, page 355. Mr. John Quincy Adams 

 was -then Secretary of State for the United States, and Lord Bathurst 

 is addressing him on the position of affairs. The date of the title page 

 is 1834. 



Mr. Phelps. — We have the book, I understand. 



Sir Charles Russell. — No doubt. 



But the rights acknowledged by the Treaty of 1783 are not only distinguishable 

 from the liberties comeded by the same Treaty, in the foundation upon which they 

 stand, but they are carefully distinguished in the Treaty of 1783 itself. The under- 

 signed begs to call the attention of the American Minister to the wording of the first 

 and third Articles, to which he has often referred for the foundation of his argu- 

 ments. In the first Article Great Britain acknowledges an independence already 

 expressly recognized by the Powers of Europe and by herself in her consent to eulcr 

 uto provisional Articles of November 1782. In the third Article — 



the one I read — 



Great Britain acknowledges the rights 



it is printed in italics — 



of the United States to take fish on the banks of Newfoundland and other places 

 from which Great Britain has no right to exclude an independent nation. 



These banks are I think something like 100 miles from the coast of 

 Newfoundland, but they were to have liberty to cure and dry fish in 

 certain unsettled places; and he then goes on to another branch of the 

 subject. 



I find also that the Counsel for the United States in the case of the 

 Halifax Commission 1877 refers to these Treaties, and says : 



The Treaties of 1818, 1854 and 1871 related solely to fishing within the three 

 miles. The Treaty of 1783 recognizes the right of American fishermen to take on the 

 banks on the high' seas, a right which had always belonged to American fishermen, 

 never ceded to them by any Treaty, hut which they held by the right of common 

 humanity. 



1101 Now, on the same occasion, Mr. Dwight Foster, who was then 

 the Agent of the United States, treats the matter thus. I am 



reading here from volume II, page 591, of the report of that Fishery 

 Commission. 

 He says: 



Early in the diplomatic history of this case, we find that the Treaty of Paris in 

 1763 excluded French fishermen three leagues from the coast belonging to Great 

 Britain in the Gulf of St. Lawrence, and fifteen leagues from the island of Cape 

 Breton. We find that the treaty with Spain in the same year contained a relinquish- 

 ment of all Spanish fishing rights in the neighbourhood of Newfoundland. The 

 Crown of Spain expressly desisted from all pretensions to the right of fishing in the 



