492 AMERICAN DIPLOMATIC QUESTIONS 



tioned out by the same treaty, a corporeal possession, but, in the 

 technical language of the English law, an incorporeal hereditament, 

 and in that of the civil law a right of mere faculty, consisting in 

 the power and liberty of exercising a trade, the places in which it 

 is exercised being occupied only for the purposes of the trade. 

 Now, the right or liberty to enjoy this possession, or to exercise 

 this trade, could no more be affected or impaired by a declaration 

 of war than the right to the territory of the nation. The inter- 

 ruption to the exercise of it, during the war, could no more affect 

 the right or liberty than the occupation by the enemy could affect 

 the right to that. The right to territory could be lost only by 

 abandonment or renunciation in the treaty of peace, by agree- 

 ment to a new boundary line, or by acquiescence in the occupa- 

 tion of the territory by the enemy. The fishery liberties could 

 be lost only by express renunciation of them in a treaty, or by 

 acquiescence, on the principle that they were forfeited, which 

 would have been a tacit renunciation. 



Again : 



... in consenting by that treaty [1783] that a part of the North 

 American continent should remain subject to the British jurisdic- 

 tion, the people of the United States had reserved to themselves 

 the liberty, which they had ever before enjoyed, of fishing upon 

 that part of the coasts, and of drying and curing fish upon the 

 shores, and this reservation had been agreed to by the other con- 

 tracting party. 



In substance, then, the American position at Ghent, as 

 regards the inshore as well as the open sea fisheries, was : 

 that the people of the United States had done as much as 

 the English to win and protect the fisheries; that as Brit- 

 ish subjects they had always enjoyed them ; that at the 

 close of the Revolutionary War a treaty (1783) had been 

 made recognizing the independence of the United States and 

 making a partition of the territory of North America ; that 

 so far as the fishery rights were concerned, they were simply 

 incorporeal hereditaments owned alike by England and the 

 United States, as tenants in common in North America ; 

 that the third article of the treaty of Paris recognized this 

 to be the case, and by its terms simply defined those rights 

 and recorded them, but did not create nor grant them to the 

 United States ; that all these fishery rights belonging to the 



