30 CASE OF THE UNITED STATES. ' 



force ; the result of which must have been war — the very state from 

 which the treaty was to redeem the parties. That Great Britain 

 Avould not have acknowledged these rights as belonging to the United 

 States in virtue of their independence, is evident; for, in the cession 

 of Nova Scotia by France to Great Britain, in the twelfth article 

 of the treaty of Utrecht, it was expressly stipulated that, as a con- 

 sequence of that cession, French subjects should be thenceforth 

 " excluded from all kind of fishing in the said seas, bays, and other 

 places on the coasts of Nova Scotia; that is to say, on those which 

 lie towards the east, within thirty leagues, beginning from the island 

 commonly called Sable, inclusively, and thence stretching along 

 towards the southwest." The same exclusion was repeated, with 

 some slight variation, in the treaty of peace of 1763; and, in the 

 eighteenth article of the same treaty, Spain explicitly renounced all 

 pretensions to the right of fishing " in the neighborhood of the island 

 of Newfoundland."" It was not, therefore, as a necessary result of 

 their independence that Great Britain recognised the right of the 

 people of the United States to fish on the Banks of Newfoundland, 

 in the " Gulf of St. Lawrence " and at all other places in the sea 

 where " the inhabitants of both countries used, at any time thereto- 

 fore, to fish." She recognised it, by a special stipulation, as a right 

 which they had theretofore enjoyecl as a part of the British nation, 

 and which, as an independent nation, they were to continue to enjoy 

 unmolested; and it is well known that, so far from considering it 

 as recognised by virtue of her acknowledgment of independence, her 

 objections to admitting it at all formed one of the most prominent 

 difficulties in the negotiation of the peace of 1783. It was not as- 

 serted by the undersigned, as Lord Bathurst's note appears to sup- 

 pose, that either the right or the liberty of the people of the United 

 States in these fisheries was indefeasible. It was maintained that, 

 after the recognition of them by Great Britain, in the treaty of 1783, 

 neither the right nor the libert}^ could be forfeited by the United 

 States, but by their own consent; that no act or declaration of Great 

 Britain alone could divest the United States of them; and that no 

 exclusion of them from the enjoyment of either could be valid, unless 

 expressly stipulated by themselves, as was done by France in the 

 treaty of Utrecht, and by France and Spain in the peace of 1763.<' 

 ******* 



It was precisely because they might have lost their portion of this 

 joint national property, to the acquisition of which they had contrib- 

 uted more than their share, unless a formal article of the treaty should 

 secure it to them, that the article was introduced. By the British 

 municipal laws, which were the laws of both nations, the property of 

 a fishery is not necessarily in the proprietor of the soil where it is 

 situated. The soil may belong to one individual, and the fishery to 

 another. The right to the soil may be exclusive, while the fishery 

 may be free or held in common. And thus, while in the partition of 

 the national possessions in North America, stipulated by the treaty 

 of 1783, the jurisdiction over the shores washed by the waters where 

 this fishery was placed was reserved to Great Britain, the fisheries 

 themselves, and the accommodations essential to their prosecution, 

 were, by mutual compact, agreed to be continued in common.* 



« Appendix, p. 282. ^Appendix, p. 286. 



