QUESTION ONE. 39 



posts there), in possession of Great Britain. By the treaty of 1783, 

 Great Britain ceded the territory to the United States; but evacua- 

 tion of it was delayed pending the execution by the United States 

 of other stipulations of the agreement. The later treaty of 1794 

 (Jay's treaty) provided for delivery up of the territory to the 

 United States, and as to the British people there, section two pro- 

 vided as follows (App., p. 16) : 



All settlers and traders, within the precincts or jurisdiction of the 

 said posts, shall continue to enjoy unmolested, all their property of 

 every kind, and shall be protected therein. They shall be at full 

 liberty to remain there, or to remove with all or any part of their 

 effects; and it shall also be free to them to sell their lands, houses 

 or effects, or to retain the property thereof, at their discretion ; such 

 of them as shall continue to reside within the said boundary lines, 

 shall not be compelled to become citizens of the United States, or 

 to take any oath of allegiance to the Government thereof; but they 

 shall be at full liberty so to do if they think proper, and they shall 

 make and declare their election within one year after the evacuation 

 aforesaid. And all persons who shall continue there after the expi- 

 ration of the said year, without having declared their intention 

 of remaining subjects of His Britannic Majesty, shall be considered 

 as having elected to become citizens of the United States. 



This is a case which presents many analogies to that under dis- 

 cussion. Of the territory it refers to (much more accurately than 

 of the fisheries now under discussion), it might be said that prior 

 to the war it had been the common property of the British Empire ; 

 that, by the treaty, the territory was assigned to the United States, 

 subject to certain rights of certain British subjects; that there is 

 not in the treaty any grant of right to the United States to inter- 

 fere at all, whether reasonably or unreasonably, with the exercise 

 of the British rights in the territory; and that, therefore, the 

 United States could not have had any authority to regulate the 



rights of citizens of Great Britain within the territory. 

 44 To any such argument, the answer of the United States 



would have been that which His Majesty's Government now 

 makes to the United States: Liberty to foreigners to trade, or fish, 

 or carry on any other occupation, in national territory or waters is 

 not an abandonment of authority to regulate the actions of those 

 foreigners there; in order to maintain and continue that power of 

 regulation, no grant of it from the foreign Power is necessary; such 

 foreigners must conform to the laws of the country to which they 

 go, or in which they remain ; and the only obligation imposed by the 

 treaty upon the sovereign Power is that it will not so exercise its 

 authority as to nullify the liberty which it has accorded. 



Another clause in the treaty of 1794 was as follows (App., p. 16) : 



It is agreed that it shall at all times be free to His Majesty's 

 subjects, and to the citizens of the United States, and also to the 



