44 The Fishery Question, 



but to make them effective, In the presence of 

 a hostile population, the shores where they 

 were to be enforced should have been con- 

 quered and retained. Of the treaty itself it 

 was asserted that it was in the nature of a 

 deed of partition. The grant of the Fishery 

 was analogous to the cession of territory or 

 the demarcation of a boundary. It was urged 

 that the sequence of the treaty, as shown in 

 the acknowledgment of independence, the 

 cession of territory and the settlement of 

 boundaries made it an instrument permanent 

 in its provisions. 7° 



Of the later view, that the Third Article was 

 an executed grant, acknowledging a perma- 

 nent servitude, it may be questioned whether 

 the participation of British subjects in the 

 Fishery, on equal terms with the people 

 of the United States, does not exclude such a 

 theory.^' 



The American argument was not convinc- 

 ing, because the third article is susceptible of 

 a different interpretation. ^^ The British Gov- 

 ernment could and did reply, that the perma- 

 nent part was not only distinguishable from 

 the temporary, but that it was thus distin- 

 guished by the treaty itself, which mentioned 



