284 CORRESPONDENCE, ETC., PRIOR TO TREATY OF 1818 



the enjoyment of the same liberty conformably to the change of cir- 

 cumstances, corroborates the conclusion that the whole purport of 

 the compact was permanent and not temporary — not experimental, 

 but definitive. 



That the term right was used as applicable to what the United 

 States were to enjoy in virtue of a recognised independence, and the 

 word liberty to what they were to enjoy as concessions strictly de- 

 pendant on the treaty itself, the undersigned not only cannot admit, 

 but considers as a construction altogether unfounded. If the United 

 States would have been entitled, in virtue of a recdgnised independ- 

 ence, to enjoy the fisheries to which the word rights is applied, no 

 article upon the subject would have been required in the treaty. 

 AYhatever their right might have been, Great Britain would not have 

 felt herself bound, without a specific article to that effect, to 

 acknowledge it as included among the appendages to their inde- 

 pendence. Had she not acknowledged it, the United States must 

 have been reduced to the alternative of resigning it, or of maintain- 

 ing it by force; the result of which must have been war — the very 

 state from which the treaty was to redeem the parties. That Great 

 Britain would not have acknowledged these rights as belonging to 

 the United States in virtue of their independence, is evident; for, 

 in the cession of Nova Scotia by France to Great Britain, in the 

 twelfth article of the treaty of Utrecht, it was expressly stipulated that, 

 as a consequence of that cession, French subjects should be thence- 

 forth " excluded from all kind of fishing in the said seas, bays, and 

 other places on the coasts of Nova Scotia; that is to say, on those 

 which lie towards the east, within thirty leagues, beginning from the 

 island commonly called Sable, inclusively, and thence stretching along 

 towards the southwest." The same exclusion was repeated, with some 

 slight variation, in the treaty of peace of 17G3 ; and, in the eighteenth 

 article of the same treaty : Spain explicitly renounced all pretensions 

 to the right of fishing " in the neighborhood of the island of New- 

 foundland." It was not, therefore, as a necessary result of their 

 independence that Great Britain recognised the right of the people 

 of the United States to fish on the Banks of Newfoundland, in the 

 " Gulf of St. Lawrence " and at all other places in the sea where " the 

 inhabitants of both countries used, at any time theretofore, to fish." 

 She recognised it, by a special stipulation, as a right which they had 

 theretofore enjoyed as a part of the British nation, and which, as an 

 independent nation, they were to continue to enjoy unmolested; and 

 it is well known that, so far from considering it as recognised by vir- 

 tue of her acknowledgment of independence, her objections to ad- 

 mitting it at all formed one of the most prominent difficulties in the 

 negotiation of the peace of 1783. It was not asserted by the under- 

 signed, as Lord Bathurst's note appears to suppose, that either the 

 right or the liberty of the people or the United States in these fish- 

 eries was indefeasible. It was maintained that, after the recognition 

 of them by Great Britain, in the treaty of 1783, neither the right nor 

 the liberty could be forfeited by the United States, but by their own 

 consent; that no act or declaration of Great Britain alone could divest 

 the United States of them ; and that no exclusion of them from the 

 enjoyment of either could be valid., unless expressly stipulated by 

 themselves, as was done by France in the treaty of Utrecht, and by 

 France and Spain in the peace of 17G3. 



