832 APPENDIX TO BRITISH CASE. 



possessed by the inhabitants of the American Colonies as British sub- 

 jects, and declares that this present American right is a new grant by 

 the Treaty of 1818. How then can it be maintained that the limita- 

 tions upon the former right continued although the right did not, 

 and are to be regarded as imposed upon the new grant, although not 

 expressed in the instrument making the grant? On the contrary, 

 the failure to express in the terms of the new Treaty the former 

 limitations, if any there had been, must be deemed to evidence an 

 intent not to attach them to the newly created right. 



Nor would the acceptance by Great Britain of the American view 

 that the Treaty of 1783 was in the nature of a partition of Empire, 

 that the fishing rights formerly enjoyed by the people of the Colonies 

 and described in the instrument of partition continued notwithstand- 

 ing the war of 1812, and were in part declared and in part abandoned 

 by the Treaty of 1818, lead to any different conclusion. It may be 

 that under this view the rights thus allotted to the Colonies in 1783 

 were subject to such Regulations as Great Britain had already im- 

 posed upon their exercise before the partition, but the partition itself 

 and the recognition of the independence of the Colonies in the 

 500 Treaty of partition was a plain abandonment by Great Britain 

 of the authority to further regulate the rights of the citizens 

 of the new and independent nation. 



The Memorandum says : " The American fishermen cannot rightly 

 claim to exercise their right of fishery under the Convention of 1818 

 on a footing different than if they had never ceased to be British 

 subjects." What then was the meaning of independence? What 

 was it that continued the power of the British Crown over this par- 

 ticular right of Americans formerly exercised by them as British 

 subjects, although the power of the British Crown over all other 

 rights formerly exercised by them as British subjects was ended? 

 No answer to this question is suggested by the Memorandum. 



In previous correspondence regarding the construction of the 

 Treaty of 1818, the Government of Great Britain has asserted, and 

 the Memorandum under consideration perhaps implies, a claim of 

 right to regulate the action of American fishermen in the Treaty 

 waters, upon the ground that those waters are within the territorial 

 jurisdiction of the Colony of Newfoundland. This Government 

 is constrained to repeat emphatically its dissent from any such view. 

 The Treaty of 1818 either declared or granted a perpetual right to 

 the inhabitants of the United States which is beyond the sovereign 

 power of England to destroy or change. It is conceded that this 

 right is, and for ever must be, superior to any inconsistent exercise 

 of sovereignty within that territory. The existence of this right is 

 a qualification of British sovereignty within that territory. The 

 limits of the right are not to be tested by referring to the general 

 jurisdictional powers of Great Britain in that territory, but the lim- 

 its of those powers are to be tested by reference to the right as de- 

 fined in the instrument created [sic~\ or declaring it. The Earl of 

 Derby in a letter to the Governor of Newfoundland, dated the 12th 

 June, 1884, said : " The peculiar fisheries rights granted by Treaties 

 to the French in Newfoundland invest those waters during the 

 months of the year when fishing is carried on in them, both by Eng- 

 lish and French fishermen, with a character somewhat analogous to 

 that of a common sea for the purpose of fishery." And the same 



