PERIOD FROM 1888 TO 1909. 223 



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 Mem- 

 orandum, however, expressly excludes the supposition that the 

 British Govermnent now intends to concede that the present rights 

 of American fiishermen upon the Treaty coast are a continuance of 

 the right ])ossessed by the inhabitants of the American Colonies as 

 British subjects, and declares that this present American right is a 

 new grant by the Treaty of 1818. How then can it be maintained 

 that the limitations 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 limitations, 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 Empire, 

 that the fishing rights formerly enjoyed by the people of the Colonies 

 and described in the instrument of partition continued notwithstand- 

 ing the war of 1812, and were in part declared and in part abandoned 

 by the Treaty of 1818, lead to any different conclusion. It may be 

 that under tliis view the rights thus allotted to the Colonies in 1783 

 were subject to such Regidations as Great Britain had already 

 imposed upon their exercise before the partition, but the partition 

 itself and the recognition of the independence of the Colonies in the 

 Treaty of partition was a plain abandonment by Great Britain of the 

 authority to further regulate the rights of the citizens of the new and 

 independent nation. 



The Memorandum says: "The American fishermen cannot rightly 

 claim to exercise their right of fishery under the Convention of 1818 

 on a footing different than if they had never ceased to be British sub- 

 jects." What then was the meaning of independence? What was 

 it that continued the power of the British Crown over this particular 

 right of Americans formerly exercised by them as British subjects, 

 although the power of the British Cro-^ii over all other rights formerly 

 exercised by them as British subjects was ended? No answer to 

 this question is suggested by the Memorandum. 



In previous correspondence regarding the construction of the Treaty 

 of 1818, the Government of Great Britain has asserted, and the 

 Memorandum under consideration perhaps implies, a claim of right 

 to regulate the action of American fishermen in the Treaty waters, 

 upon the ground that those waters are ^^^thin the territorial juris- 

 diction of the Colony of Newfoundland. This Government is con- 

 strained to repeat emphatically its dissent from any such view. 

 The Treaty of 1818 either declared or granted a perpetual right to 

 the inhabitants of the United States which is beyond the sovereign 

 power of England to destroy or change. It is conceded that this 

 right is, and for ever must be, superior to any inconsistent exercise 



