16 COUNTER-CASE OF GREAT BRITAIN. 



of the negotiators in 1782. (Ante, p. 17.) The representatives of 

 the United States refused to agree to the use of the term " liberty " 

 in regard to the sea fishery, which they claimed as a right in common 

 with other nations, but they accepted it in regard to the fisheries in 

 British waters, which they took only as a concession. 



MR. POMEROY. 



The point has been much discussed in America, and it is stated 

 in a convenient form in the following extracts from the opinions of 

 two writers who have examined the matter in some detail. Pro- 

 fessor Pomeroy, in an article in the "American Law Review," (1871, 

 vol. v, p. 389), on the North-Eastern Fisheries, speaks of the parti- 

 tion theory in the following terms : 



The analogy suggested between the treaty of 1783 and a partition 

 among co-owners of their lands and the rights issuing therefrom pre- 

 viously held in common, is more fanciful than sound. That treaty 

 created and conferred a liberty, and did not merely recognize a sub- 

 sisting right, to fish in the Canadian territorial waters. This must 

 be conceded at the outset, and our further discussion will be based 

 upon the concession. 



MR. HENDERSON. 



. Mr. John B. Henderson, in his " American Diplomatic Questions " 

 published in 1901, says: 



The American commissioners went still farther to substantiate 

 their contention that the inshore fisheries of Canada and the right 

 to use Canadian shores for curing and drying fish belonged to the 

 United States as an inviolable right. They maintained that as these 

 liberties of fishing were not created, but merely defined and recorded 

 by the third article of the Paris treaty, that article, like all treaty 

 clauses pertaining to matters of partition or boundaries or territory, 

 Avas of that particular class of treaty articles which is permanent 

 and not affected by subsequent suspension of friendly relations be- 

 tween the parties. Thus they considered their position doubly 



strengthened, and beyond question correct. 



21 The arguments of Mr. Adams and the members of the com- 



mission who supported him were clearly' unsound. While 

 British colonists, the Ajnericans certainly possessed all the rights of 

 other English subjects in British territorial waters, and shared with 

 them the obligations and duties which such possession imposed. 

 These obligations had called for the protection of the fisheries 

 against French aggressions, and the American colonists answered 

 the call as a duty, and performed it well. After the war of inde- 

 pendence, England retained Nova Scotia. Newfoundland, and Labra- 

 dor, and as an inseparable condition the jurisdiction over their mar- 

 ginal belts of ocean ; the Americans ceased to be British subjects, and 

 were at once relieved of all duties and obligations to defend English 

 territory or protect English waters, and in a like manner they were 



