18 COUNTER-CASE OF GEEAT BRITAIN. 



MR. WEBSTER. 



These opinions are enforced by the authority of Mr. Daniel Web- 

 ster. In a draft of a paper he was preparing in 1852 he wrote as 

 follows (United States Case, App., p. 531) : 



The undersigned now takes leave to draw Mr. Crampton's atten- 

 tion to a more general consideration. He has already observed that 

 from the first, this Government has regarded a distinction which is 

 thought to be fundamental and of much importance, between rights 

 and liberties, or privileges. This distinction pervades the whole of 

 the third Article of the Treaty of 1783. 



By that article the right, not the liberty or the privilege, but the 

 right to take fish of every kind on the Grand. Bank & on all other 

 Banks of Newfoundland; is expressly recognized by the Crown of 

 England, and then it is further declared '"also in the Gulf of St. 

 Lawrence and at all other places in the sea, where the inhabitants of 

 both countries used at any time heretofore to fish." 



This plainly is the admission of a Common right, founded on a 

 Common origin, and standing in a Common usage. 



But then the Treaty proceeds to declare, that " the inhabitants of 

 the United States shall have liberty to take fish of every kind on such 

 part of the Coast of Newfoundland as British fishermen shall use; 

 (but not to dry or cure the same on that island) and also on the 

 coasts, bays and creeks of all other of his Britannic Majesty's domin- 

 ions in America ; and that the American fishermen shall have liberty 

 to dry and cure fish in any of the unsettled bays, harbops and creeks 

 of Nova Scotia, Magdalen Islands and Labrador, but so long as the 

 same shall remain unsettled ; but so soon as the same or either of them 

 shall be settled, it shall not be lawful for said fishermen to dry or 

 cure fish at such settlement, without a previous agreement for that 

 purpose with the inhabitants, proprietors or possessors of the 



ground." 



23 It is admitted that this is a liberty held by the inhabitants 



of the United States by concession and not exempted from 

 abrogation by war. 



In Mr. Webster's view, therefore, the United States obtained access 

 to the British coast fisheries by concession of a liberty, and not in 

 virtue of joint property. 



EFFECT OF WAR OF 1812. 



But whatever view may be taken by the Tribunal of the contention 

 of the United States on the question of partition, if, indeed, it be 

 thought necessary to come to any decision at all on that point, it is 

 submitted that the position was completely changed in 1812. 



Great Britain from the first declared that the liberties of fishing, 

 and drying and curing fish, within British territories, conceded in 

 1783, were at an end when once the war of that year broke out. Dur- 

 ing the continuance of that war American fishermen could not resort 

 to the British waters: and at the first meeting at Ghent on the 8th 

 August, 1814, the British Commissioners made a formal declaration 



