1796 AWARD OF THE FISHERY COMMISSION. 



misled as to the facts by fishermen or fish-dealers, or those interested in 

 in the fisheries on the New England coast. 

 1 will pass on. Mr. Trescot says in his argument: 



With regard to the history of these treaties, there are two subjects in that connection which 

 I do not propose to discuss at all. One is the headland question. I consider that the state- 

 ment made by my distinguished colleague who preceded me has really taken that question 

 out of this discussion. I do not understand that there is any claim made here that any por- 

 tion of ihis award is to be assessed for the privilege of coming within the headlands. As to 

 the exceedingly interesting and very able brief submitted for the other side, I am not dis- 

 posed to quarrel with it. At any rate, I shall not undertake to go into any argument upon 

 it. It refers entirely to the question of territorial right, and the question of extent of juris- 

 diction questions with which the United States has nothing to do. They have never been 

 raised by our government, and probably never will be, because our claim to fish within the 

 three-mile limit is no more an interference with territorial and jurisdictional rights of Great 

 ]5ritaiu, than a right of way through a park would be an interference with the ownership of 

 the property, or a right to cut timber in a forest would be an interference with the fee-simple 

 in the soil. 



Well, I should like to ask your excellency and your honors whether 

 a gentleman who owned a farm would not find that its value materially 

 diminished by some one else having a right of way over it. Could he 

 sell it for the same price? He obviously could not. And why ? Be- 

 cause the enjoyment of the privilege is destroyed to the extent that the 

 easement gives the enjoyment of it to the person holding the right of 

 way. The assertion that it makes no difference to a person possessing 

 land that somebody else has the right to cut trees on it I submit is per- 

 fectly absurd. It is just what the Americans have a right to do under 

 the treaty. They have not the right to come to our lauds and cut trees ; 

 but they have the right to come into our territorial waters and take 

 from them fish, which are just as valuable to the waters as trees are to 

 the laud. They have the right to take the fish, and for that, I appre- 

 hend, they must pay. If a man has the right to enter on my land to 

 cut trees I presume he must pay compensation for it; I presume he can- 

 not get the right unless compensation is agreed upon. That is what we 

 say. Taking fish from our waters is precisely the same as taking trees 

 off our land. 



Further on in his argument, Mr. Trescot puts forward the extraordi- 

 nary doctrine that the Treaty of 1818 was rescinded by the Treaty of 

 1854. 



At page GO he uses these words: 



Then with regard to the character of the Convention of 1818. I wish to put on record 

 here my profound conviction that by every rule of diplomatic interpretation, and by every 

 established precedent, the Convention of 1818 was abrogated by the Treaty of 1854, and 

 that when the treaty was ended in 18(5(5, the United States and Great Britain were relegated 

 to the Treaty of 1783, as the regulator of their rights. 



Well, the proposition that the Convention of 1818 was abrogated by 

 the Treaty of 18.34 is sufficiently novel. I will, however, show your hon- 

 ors that by the Reciprocity Treaty, so far from there being any'inteutiou 

 shown to abrogate the Treaty of 1818, the exact opposite was the case; 

 and that the Convention of 1818 is cited in the Reciprocity Treaty as a 

 treaty then subsisting, and which should continue to subsist. Before I 

 read from the Reciprocity Treaty I desire your excellency and your 

 honors to understand that in refuting these 'arguments I do not do so 

 because they can have had any substantial effect upon this Commission. 

 I hey cannot possibly have any. Your excellency and your honors 

 know too much of international law to believe any such proposition, 

 am afraid that, if such propositions are allowed to run broadcast 

 brongn their speeches, without being controverted, it may be imagined 

 that we are unable to meet them, and therefore allow them to pass sub 



