360 APPENDIX TO BRITISH CASE. 



It thus appears that the negotiators of both governments concurred, 

 at the time of making the treaty, in giving to it the intent and mean- 

 ing now contended for by the United States. 



It further appears that such was the intent and effect of the treaty 

 of 1818, from the fact that the construction practically given to it 

 for more than twenty years, and indeed down to the year 1842, con- 

 formed to the views of the negotiators as thus expressed. (See 

 Sabine's Keport, p. 294.) 



There are certain circumstances also appearing in the case, which 

 show the evident reluctance of the British government to assert the 

 exclusive pretensions ultimately put forth by them, and that they 

 have been goaded to it, against their better sense, as to the construction 

 of the treaty, by jealousies and laws of the colonists of a very un- 

 usual character, and which Great Britain was slow to sanction. And 

 when she ultimately concluded to assert this claim, she tendered with 

 it propositions for new negotiations, by which all matters connected 

 with the colonies should be amicably adjusted. 



I shall now consider the construction given to similar words of the 

 treaty of 1783. 



It will not be denied that the words used in the treaty of 1783 and 

 the treaty of 1818, where they are identical, and where express ref- 

 erence is made to the provisions of the former treaty, mean the same 

 thing. When the United States are said, in the treaty of 1818, to 

 renounce the liberty heretofore enjoyed and claimed, it means the 

 liberty heretofore enjoyed under the treaty of 1783, and the liberty 

 then enjoyed was to take fish " on certain bays and creeks," without 

 any limitations as to distance from them. 



Now, what were those bays and creeks on which that is, along the 

 line of which drawn from headland to headland, the citizens of the 

 United States were allowed to take fish under the treaty of 1783? 

 It cannot be pretended that bays and creeks there intended were any 

 other than small indentations from the great arms of the sea. They 

 certainly did not include the Bay of Fundy and other large waters; 

 because if fishing was allowed merely on that bay, as is now con- 

 tended that is, on and along the line of the bay from headland to 

 headland, then all fishing in the Bay of Fundy would be excluded. 

 But it is a well-known fact that the suggestion never was made, or 

 a surmise rai?ed, that the expressions used in the treaty of 1783 per- 

 mitted the fishermen of the United States to go merely to the line 

 of the Bay of Fundy, and restricted them from fishing within it. 



A practice, therefore, for thirty-five years under this treaty of 

 1783, had determined what classes of bays and creeks were meant by 

 the expressions there used. 



' The treatv of 1818 renounced the liberty heretofore enjoyed of 

 fishing on tnese identical bays and creeks that is, immediately on 

 the line of them; and also further renounced the liberty of fishing 

 within a space of three miles of them. But the bays and creeks here 

 referred to were the same as those referred to in the treaty of 1783, 

 and neither of them ever included the Bay of Fundy. 



The express connection between these two treaties is apparent from 

 the face of them. Reference is made to the treaty of 1783 in a manner 

 that cannot be mistaken; the subject-matter is the same, and the 

 terms, as to the point in question, identical. 



