178 APPENDIX TO BRITISH CASE. 



It is not presumed that your Excellency means to contend that that 

 treaty is itself yet in force. Without referring to antecedent facts or 

 to the subsequent uniform conduct of both Governments, the 2nd 

 article of the convention of 1800, and the modification inserted in its 

 ratification, by which the parties expressly renounced all pretensions 

 which might be derived from former treaties, are sufficient to remove 

 every doubt on that question. The 27th article of that convention 

 affords an additional proof, if any was wanting, that the parties con- 

 sidered the 10. article of the treaty of 1778 as making no exception, 

 and as being no more binding than any other part of that treaty; 

 since it would have been unnecessary, had it been still in force, to 

 insert that provision in the convention. And relating to the same 

 subject, that 27. article has at all events superseded the 10. article of 

 the treaty of 1778 even supposing what it is impossible to establish, 

 that this had survived all the other conditions of that treaty. 



Recurring then to the stipulations of 1800, it will be seen that the 

 United States were no longer willing to renew that by which they had 

 engaged in 1778 to consider as the exclusive right of France to fish on 

 any part of the coast of Newfoundland. The provisions of the 27th 

 article are in the following words: 



Neither party will intermeddle (in the French copy " ne viendra participer") 

 in the fisheries of the other on its coasts, nor disturb the other in the exercise 

 of the rights which it now holds or may acquire on the coast of Newfoundland, 

 in the Gulf of St. Lawrence, or elsewhere on the American coast northward of 

 the United States. But the whale and seal fisheries shall be free to both in 

 every quarter of the world. 



Not only the word " exclusive " is not to be found in the part of the 

 article which relates to Newfoundland, but it is evident from the 

 tenor of the whole, that it was not intended by either party to recog- 

 nise any such exclusive right in that quarter. There is an express 

 distinction made between the coasts of each country, and those of 

 Newfoundland and elsewhere. When speaking of the first, both 

 parties respectively engage not to intermeddle with, not to participate 

 in the fisheries of the other. Instead of this they only agree not to 

 disturb each other in their rights on the coast of Newfoundland, 

 clearly intimating that to participate was not to disturb; since had it 

 been otherwise, the expressions "not to intermeddle," "not to partici- 

 pate," would have been preserved, and made applicable to the fisheries 

 on that coast, as well as to those on the coast of each country. It 

 would indeed be preposterous to suppose that the United States, by 

 agreeing not to disturb France in the exercise of the rights which she 

 might acquire anywhere on the coast of Newfoundland in the Gulf 

 of St. Lawrence or elsewhere on the American coast northward of 

 the United States, engaged not to participate in such fisheries, and to 

 consider as exclusive the rights which might be acquired by France; 

 since this would have been tantamount to a renunciation on their 

 part of nearly the whole of the fisheries they then enjoyed, and to 

 which they had an indisputable right. But the article makes no dis- 

 tinction whatever between the rights then held and those which 

 might be thereafter acquired by France. If these therefore could not 

 be exclusive, neither those she then held were recognised as such by 

 the article. 



I have alluded to those stipulations only as connected with those 

 of 1778 to which they had been substituted. They have as well as 



