982 CORRESPONDENCE, ETC. 



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 or 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 this view the rights thus allotted to the Colonies in 1 783 

 were subject to such Regulations 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 savs: " 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 Crown 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 within 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 

 of sovereignty within that territory. The existence of this right is a 

 qualification of British sovereignty within that territory. The 

 limits of the right are not to be tested by referring to the general 

 jurisdictional powers of Great Britain in that territory, but the limits 

 of those powers are to be tested by reference to the right as defined 

 in the instrument created or declaring it. The Earl of Derby in a 

 letter to the Governor of Newfoundland, dated the 12th June, 1884, 

 said: "The peculiar fisheries rights granted by Treaties to the French 

 in Newfoundland invest those waters during the months of the year 

 when fishing is carried on in them, both by English and French fisher- 

 men, with a character somewhat analogous to that of a common sea 

 for the purpose of fishery." And the same observation is applicable 

 to the situation created by the existence of American fishing rights 

 under the Treaty of 1818. An appeal to the general jurisdiction of 



