DOCUMENTS BEARING ON THE TREATY OF GHENT, 1814. 277 



but at the last treaty of peace, prior to the American revolution, had 

 expressly renounced it. 



^ At the commencement of the American revolution, therefore, this 



fishery belonged exclusively to the British nation, subject to a certain 



limited participation in it reserved by treaty stipulations to France. 



******* 



166 By the third article of the preliminaries of November, 1782, 

 and also by the corresponding article of the definitive treaty of 

 1783, the whole of the fishing rights and liberties were secured, and 

 recognized, as rights and liberties, pre-existing, and not as tempo- 

 rary grants the variation of the terms in the articles, securing the 

 right to fish on the banks of Newfoundland, in the Gulf of St. Law- 

 rence, and at all other places in the sea, and the liberty to fish on the 

 coasts of Newfoundland and the other British provinces arose only 

 from the circumstance, that by the same act which recognized these 

 liberties, (the treaty of peace,) the territorial jurisdiction of those 

 provinces, which had until then been the same with that of the other 

 British colonies, became to the United States a foreign jurisdiction. 

 The continuance of the fishing liberty was the great object of the 

 article; and the language of the article was accommodated to the 

 severance of the jurisdictions, which was consummated by the same 

 instrument. It was co-instantaneous with the severance of the juris- 

 diction itself; and was no more a grant from Great Britain, than the 

 right acknowledged in the other part of the article; or than the In- 

 dependence of the United States, acknowledged in the first article. It 

 was a continuance of possessions enjoyed before; and at the same 

 moment, and by the same act, under which the United States acknowl- 

 edged those coasts and shores as being under a foreign jurisdiction, 

 Great Britain recognized the liberty of the people of the United 

 States to use them for purposes connected with the fisheries. 



This also was the peculiar character of the treaty of 1783, in which 

 our title was recognised to the rights and liberties in the fisheries. 

 They had all the qualities mentioned by the authors on the laws of 

 nations, as appropriate to permanent and irrevocable acknowledg- 

 ments : 



Who can doubt (says Vattel) that the pearl fishery of Bahrem and Ceylon, 

 may not lawfully be enjoyed as property? And though a fishery for food ap- 

 pears more inexhaustible, if a nation has a fishery on its coasts that is par- 

 ticularly advantageous, and of which it may become master, shall it not be per- 

 mitted to appropriate this natural advantage to itself, as a dependence on the 

 country it possesses ; and if there are a sufficient number of fish to furnish the 

 neighbouring nations, of reserving to itself the great advantage it may receive 

 from them by commerce? But if, so far from taking possession of it, it has 

 once acknowledged the common right of other nations to come and fish there, 

 it can no longer exclude them from it; it has left that fishery in its primitive 

 freedom, at least with respect to those who have been in possession of it. The 

 English not having taken the advantage from the beginning, of the herring 

 fishery on their coast, it is become common to them with other nations. (Vat- 

 tel, b. 1, ch. 23, 287.) 



In the third article of the treaty of 1783, the liberties of the people 

 of the United States in the fisheries within the British North Ameri- 

 can colonial jurisdiction were, in the most rigorous sense of the words 

 acknowledged from the beginning for it was by the very same act, 

 which constituted it, as to the United States, a foreign jurisdiction. 

 92909" S. Doc. 870, 61-3, vol 7 29 



