596 APPENDIX TO BRITISH CASE. 



the Treaty of 1783, were negotiated at Paris by Dr. Franklin, repre- 

 senting the United States, and Mr. Richard Oswald, representing 

 Lord Shelborne, then Colonial Secretary, and afterwards, when the 

 treaty was finally agreed on, Prime Minister. It must be remem- 

 bered, also that Lord Shelborne, while maintaining the rights of 

 the colonies when assailed by Great Britain, was nevertheless un- 

 willing that their independence should be recognized prior to the 

 treaty of peace, as if it were a concession wrung from Great Britain 

 by the exigencies of war. His position was that this recognition 

 should form part of a treaty of partition, by which, as is stated by 

 the court in Sutton v. Sutton (1 Rus. & M., 675). already noticed by 

 me. the two great sections of the British empire agreed to separate, 

 in their articles of separation recognising to each other's citizens or 

 subjects certain territorial rights. Thus the continuance of the 

 rights of the United States in the fisheries was recognized and 

 guaranteed ; and it was also declared that the navigation of the Mis- 

 sissippi, whose sources were, in the imperfect condition of geograph- 

 ical knowledge of that day, supposed to be in British territory, should 

 be free and open to British subjects and to citizens of the United 

 States. Both powers also agreed that there should be no further 

 prosecutions or confiscations based on the war; and in this way were 

 secured the titles to property held in one country by persons remain- 

 ing loyal to the other. This was afterwards put in definite shape by 

 the following article (Article X) of Jay's treaty. 



356 It is agreed that British subjects who now hold lands in the terri- 

 tories of the United States, and American citizens who now hold lands 

 in the dominion of His Majesty, shall continue to hold them according to the 

 nature and tenure of their respective estates and titles therein, and may grant, 

 sell, or devise the same to whom they please in like manner as if they were 

 natives; and that neither they nor their heirs or assigns shall, so far as may 

 respect the said lauds and the legal remedies incident thereto, be regarded as 

 aliens. 



It was this article which the court in Sutton v. Sutton, above 

 referred to, held to be one of the incidents of the " separation " of 

 1783, of perpetual obligation, unless rescinded by the parties, and 

 hence not abrogated by the war of 1812. 



It is not, however, on the continuousness of the reciprocities, recog- 

 nised by the treaty of 1783, and I desire now to dwell. What I am 

 anxious you should now impress upon the British government is the 

 fact that, as the fishery clause in this treaty, a clause continued in the 

 treaty of 1818, was a part of a system of reciprocal recognitions 

 which are interdependent, the abrogation of this clause, not oy con- 

 sent, but by acts of violence and of insult, such as those of the 

 Canadian cruiser Terror, would be fraught with consequences which 

 I am sure could not be contemplated by the Governments of the 

 United States and Great Britain without immediate action being 

 taken to avert them. To the extent of the system thus assailed I 

 now direct attention. 



When Lord Shelburne and Dr. Franklin negotiated the treaty of 

 peace, the area on which its recognitions were to operate was limited. 

 They covered, on the one hand, the fisheries; but the map of Canada 

 in those days, as studied by Lord Shelburne, gives but a very imper- 

 fect idea of the territory near which the fisheries lay. Halifax was 

 the only port of entry on the coast; the New England States were 

 there and the other nine were provinces, but no organized govern- 



