PERIOD FROM 1871 TO 1905. 855 



exigencies of war. His position was that this recognition should 

 form part of a treaty of partition, by which, as is stated by the court 

 in Sutton v. Sutton (1 Rus. & M., 675), already noticed by me, the 

 two great sections of the British Empire agreed to separate, in their 

 articles of separation recognizing to each other's citizens or subjects 

 certain territorial rights. Thus the continuance of the rights of the 

 United States in the fisheries was recognized and guaranteed; and it 

 was also declared that the navigation of the Mississippi, whose sources 

 were, in the imperfect condition of geographical knowledge of that 

 day, supposed to be in British territory, should be free and open to 

 British subjects and to citizens of the United States. Both powers 

 also agreed that there should be no further prosecutions or confisca- 

 tions based on the war; and in this way were secured the titles to 

 property held in one country by persons remaining loyal to the other. 

 This was afterwards put in definite shape by the following article 

 (Article X) of Jay's treaty : 



" It is agreed that British subjects who now hold lands in the 

 territories of the United States, and American citizens who now hold 

 lands in the dominion of His Majesty, shall continue to hold them 

 according to the nature and tenure of their respective estates and 

 titles therein, and may grant, sell, or devise the same to whom they 

 please in like manner as if they were natives; and that neither they 

 nor their heirs or assigns shall, so far as may respect the said lands 

 and the legal remedies incident thereto, be regarded as aliens." 



It was this article which the court in Sutton v. Sutton, above re- 

 ferred to, held to be one of the incidents of the " separation " of 

 1783, of perpetual obligation, unless rescinded by the parties, and 

 hence not abrogated by the war of 1812. 



It is not, however, on the continuousness of the reciprocities, 

 recognized by the treaty of 1783, that I desire now to dwell. What 

 I am anxious you should now impress upon the British Government 

 is the fact that, as the fishery clause in this treaty, a clause con- 

 tinued in the treaty of 1818, was a part of a system of reciprocal 

 recognitions which are interdependent, the abrogation of this clause, 

 not by consent, but by acts of violence and of insult, such as those 

 of the Canadian cruiser Terror, would be fraught with consequences 

 which I am sure could not be contemplated by the Governments 

 of the United States and Great Britain without immediate action 

 being taken to avert them. To the extent of the system thus assailed 

 I now direct attention. 



When Lord Shelburne and Dr. Franklin negotiated the treaty of 

 peace, the area on which its recognitions were to operate was limited. 

 They covered, on the one hand, the fisheries ; but the map of Canada 

 in those days, as studied by Lord Shelburne, gives but a very im- 

 perfect idea of the territory near which the fisheries lay. Halifax 

 was the only port of entry on the coast; the New England States 

 were there and the other nine were provinces, but no organized gov- 

 ernments to the west of them. It was on this area only, as well as 

 on Great Britain, that the recognitions and guarantees of the treaty 

 were at first to operate. Yet comparatively small as this field may 

 now seem, it was to the preservation over it of certain reciprocal 

 rights that the attention of the negotiators was mainly given. And 

 the chief of these rights were: (1) the fisheries, a common enjoy- 



