DESPATCHES, REPORTS, COREESPONDENCE, ETC. 831 



in accordance with its own ideas of what is reasonable, is based first 

 upon the fact that, under the terms of the Treaty the right of the in- 

 habitants of the United States to fish upon the Treaty coast is pos- 

 sessed by them " in common with the subjects of His Britannic Maj- 

 esty " : and, second, upon the proposition that " the inhabitants of the 

 United States would not now be entitled to fish in British North 

 American waters but for the fact that they were entitled to do so 

 when they were British subjects," and that "American fishermen can- 

 not therefore rightfully claim any other right to exercise the right 

 of fishery under the Treaty of 1818 than if they had never ceased to 

 be British subjects." 



Upon neither of these grounds can the inferences of the Memoran- 

 dum be sustained. The qualification that the liberty assured to 

 American fishermen by the Treaty of 1818 they were to have " in 

 common with the subjects of Great Britain " merely negatives an 

 exclusive right. Under the Treaties of Utrecht, of 1763 and 1783, 

 between Great Britain and France, the French had constantly main- 

 tained that they enjoyed an exclusive right of fishery on that portion 

 of the coast of Newfoundland between Cape St. John and Cape 

 Raye, passing around by the north of the island. The British, on 

 the other hand, had maintained that British subjects had a right to 

 fish along with the French, so long as they did not interrupt them. 



The dissension arising from these conflicting views had been serious 

 and annoying, and the provision that the liberty of the inhabitants of 

 the United States to take fish should be in common with the liberty 

 of His Britannic Majesty to take fish was precisely appropriate to 

 exclude the French construction and leave no doubt that the British 

 construction of such a general grant should apply under the new 

 Treaty. The words used have no greater or other effect. The pro- 

 vision is that the liberty to take fish shall be held in common, not that 

 the exercise of that liberty by one people shall be the limit of the 

 exercise of that liberty by the other. It is a matter of no concern 

 to the American fishermen whether the people of Newfoundland 

 choose to exercise their right or not, or to what extent they choose to 

 exercise it. The statutes of Great Britain and its Colonies limiting 

 the exercise of the British right are mere voluntary and temporary 

 self-denying ordinances. They may be repealed to-morrow. Whether 

 they are repealed, or whether they stand, the British right remains 

 the same, and the American right remains the same. Neither right 

 can be increased nor diminished by the determination of the other 

 nation that it will or will not exercise its right, or that it will exercise 

 its right under any particular limitations of time or manner. 



The proposition that " the inhabitants of the United States would 

 not now be entitled to fish in British North American waters but for 

 the fact that they were entitled to do so when they were British sub- 

 jects," may be accepted as a correct statement of one of the series 

 of facts which led to the making of the Treaty of 1818. Were it not 

 for that fact there would have been no fisheries Article in the Treatv 

 of 1783, no controversy between Great Britain and the United States 

 as to whether that Article was terminated by the war of 1812, and 

 no settlement of that controversy by the Treaty of 1818. The Memo- 

 randum, however, expressly excludes the supposition that the British 

 Government now intends to concede that the present rights of Ameri- 

 can fishermen upon the Treaty coast are a continuance of the right 



