ARGUMENT OF JOHN S. EWART. 1437 



Grey's memorandum is set out, commencing one-third down the 

 page : 



" The American fishery, under Article I of the Convention of 1818, 

 is one carried on within the British jurisdiction and ' in common 

 with ' British subjects. The two Governments hold different views 

 as to the nature of this Article. The British Government consider 

 that the war of 1812 abrogated that part of Article III of the Treaty 

 of Peace of 1783 which continued to inhabitants of the United States 

 ' the liberty ' (in the words used by Mr. Adams to Earl Bathurst in 

 his note of the 25th September, 1815) ' of fishing and drying, and 

 curing their fish within the exclusive jurisdiction on the North 

 American coasts to which they had been accustomed while themselves 

 forming a part of the British nation,' and that consequently Article I 

 of the Convention of 1818 was a new grant to inhabitants of the 

 United States of fishing privileges within the British jurisdiction. 

 The United States' Government, on the other hand, contend that the 

 war of 1812 had not the effect attributed to it by the British Govern- 

 ment, and that Article I of the Convention of 1818 was not a new 

 grant, but merely a recognition (though limited in extent) of privi- 

 leges enjoyed by inhabitants of the United States prior, not only to 

 the war. but to the Treaty of 1783. Whichever of these views be 

 adopted, it is certain that 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. 

 American fishermen cannot therefore rightly claim to exercise their 

 right of fishery under the Convention of 1818 on a footing of greater 

 freedom than if they had never ceased to be British subjects." 



To that Mr. Root makes the reply, which will be found upon p. 

 499, the second paragraph from the bottom : 



" 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 Treaty 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 

 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 limita- 

 tions, 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 



