PERIOD FROM 1905 TO 1909. 981 



possessed by them "in common with the subjects of His Britannic 

 Majesty;" and, second, upon 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 subjects/' and that "American fishermen 

 cannot therefore rightfully claim any other right to exercise the right 

 of fishery under the Treaty of 1818 than if they had never ceased to 

 be British subjects." 



Upon neither of these grounds can the inferences of the Memoran- 

 dum be sustained. The qualification that the liberty assured to 

 American fishermen by the Treaty of 1818 they were to have "in 

 common with the subjects of Great Britain" merely negatives an 

 exclusive right. Under the Treaties of Utrecht, of 1763 and 1783, 

 between Great Britain and France, the French had constantly main- 

 tained that they enjoyed an exclusive right of fishery on that portion 

 of the coast of Newfoundland between Cape St. John and Cape Raye, 



Eassing around by the north of the island. The British, on the other 

 and, had maintained that British subjects had a right to fish along 

 with the French, so long as they did not interrupt them. 



The dissension arising from these conflicting views had been serious 

 and annoying, and the provision that the liberty of the inhabitants of 

 the United States to take fish should be in common with the liberty 

 of the subjects of His Britannic Majesty to take fish was precisely 

 appropriate to exclude the French construction and leave no doubt 

 that the British construction of such a general grant should apply 

 under the new Treaty. The words used have no greater or other 

 effect. The provision is that the liberty to take fish shall he held in 

 common, not that the exercise of that liberty by one people shall be 

 the limit of the exercise of that liberty by the other. It is a matter 

 of no concern to the American fishermen whether the people of New- 

 foundland choose to exercise their right or not, or to what extent 

 they choose to exercise it. The statutes of Great Britain and its 

 Colonies limiting the exercise of the British right are mere voluntary 

 and temporary self-denying ordinances. They may be repealed to- 

 morrow. Whether they are repealed, or whether they stand, the 

 British right remains the same, and the American right remains the 

 same. Neither right can be increased nor diminished by the deter- 

 mination of the other nation that it will or will not exercise its right, 

 or that it will exercise its right under any particular limitations of 

 time or manner. 



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 Government now intends to concede that the present rights 

 of American fishermen upon the Treaty coast are a continuance of 

 the right possessed by the inhabitants of the American Colonies as 

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



