796 APPENDIX TO BRITISH CASE. 



bays more than 6 miles wide at the entrance. Nevertheless that as- 

 sertion is much weakened by the official opinions of eminent Amer- 

 ican publicists, communicated to the British Government. 



If the territorial claims of both Governments were sincerely as- 

 serted, as we believe they were, in reference to the fishing waters, the 

 modification of them by mutual consent has always been held in the 

 conduct of nations as a good equivalent, moving from each to the 

 other, for the concessions mutually made. This doctrine is also 

 applied by the courts as between individuals to support agreements 

 based on the consideration of yielding or settling disputed claims. 



In contrast w T ith the assertion of the utter want of reason in the 

 claims of Great Britain, based on the headland theory, we find many 

 strong declarations of our Government. Mr. Monroe, Secretary of 

 State, on December 30, 1816, admitted that a discussion of rights 

 should be avoided when mutual concessions were necessary to bring 

 the treaty powers to a mutual agreement. He said to Mr. Bagot : 



In providing for the accommodation of the citizens of the United States 

 engaged in the fisheries on the coasts of His Britannic Majesty's colonies 

 on conditions advantageous to both parties, I concur in the sentiment that it 

 is desirable to avoid a discussion of their respective rights, and to proceed, 

 in a spirit of conciliation, to examine what arrangement will be adequate 

 to the object. The discussion which has already taken place between our 

 Government has, it is presumed, placed the claim of each party in a just light. 



Our claim then was that we had a common right of fisherj', on all 

 the coasts, with the people of the British North American Pos- 

 sessions. 



The British Government then claimed that the war of 1812-'15 

 had destroyed all our claims in such fisheries. On the 28th July, 

 1818, Mr. Adams, Secretary of State, instructed Mr. Gallatin and 

 Mr. Rush as follows : 



The President authorises you to agree to an article whereby the United States 

 will desist from the liberty of fishing, and curing, and drying fish within 

 the British jurisdiction generally, upon condition that it shall be secured as 

 a permanent right, not liable to be impaired by any future war, from Cape 

 Ray to Ramea Islands, and from Mount Joli, on the Salvador coast, through 

 the straits of Belle Isle, indefinitely north, along the coast; the right to 

 extend as well to curing and drying the fish as to fishing. 



This instruction was certainly much more liberal to the subjects of 

 Great Britain than the first article of the treaty that was made under 

 it. But the instruction stated the demand of the United States, and 

 the British have a right to argue, at least, that the treaty was in- 

 tended to conform to it as to the principles involved in it. 



Claiming absolutely the right to enjoy these fisheries in common, 

 with the Canadians, and basing our claim upon the highest consid- 

 erations of justice, we were met with the counter-claim of Great 

 Britain, that all our fishing rights in Canadian waters were granted 

 to us by the treaty of 1783, and that that treaty had been abrogated 

 by war. In this dispute, which was vital, we found so much reason 

 for an adjustment, that our plenipotentiaries offered to Great Britain 

 the surrender of our rights to the extent they were renounced in the 

 treaty of 1818. 



Our plenipotentiaries, in explaining the treaty to our Govern- 

 ment, say: 



It will also be perceived that we insisted on the clause by which the United 

 States renounce their right to the fisheries relinquished by the convention, that 

 clause being omitted in the first British counter-project. 



