MISCELLANEOUS. 1105 



exclusive pretensions ultimately put forth by them, and that they had 

 been goaded to it against their better sense, as to the construction of 

 the treaty, by jealousies and laws of the colonists of a very unusual 

 character, and which Great Britain was slow to sanction. And 

 when she ultimately concluded to assert this claim, she tendered with 

 it propositions for new negotiations, by which all matters connected 

 with the colonies should be amicably adjusted. 



I shall now consider the construction given to similar words of 

 the treaty of 1783. 



It will not be denied that the words used in the treaty of 1783 

 and the treaty of 1818, where they are identical and where express 

 reference is made to the provisions of the former treaty, mean the 

 same thing. When the United States are said, in the treaty of 1818, 

 to renounce the liberty heretofore enjoyed and claimed, it means the 

 liberty heretofore enjoyed under the treaty of 1783; and the liberty 

 then enjoyed was to take fish " on certain bays and creeks" without 

 any limitations as to distance from them. 



Now, what were those bays and creeks on which that is, along the 

 line of which, drawn from headland to headland, the citizens of the 

 United States were allowed to take fish under the treaty of 1783 ? It 

 cannot be pretended that the bays and creeks there intended were 

 any other than small indentations from the great arms of the sea. 

 They certainly did not include the Bay of Fundy and other large 

 waters. Because, if fishing was allowed merely on that bay, as is 

 now contended that is, on and along the line of the bay from head- 

 land to headland then all fishing within the Bay of Fundy would 

 be excluded. But it is a well-known fact that the suggestion never 

 was made, or a surmise raised, that the expressions used in the treaty 

 of 1783 permitted the fishermen of the United States to go merely 

 to the line of the Bay of Fundy, and restricted them from fishing 

 within it. 



A practice, therefore, for thirty-five years under this treaty of 1783 

 had determined what classes of bays and creeks were meant by the 

 expressions there used. 



The treaty of 1818 renounced the liberty heretofore enjoyed of 

 fishing on these identical bays and creeks that is, immediately on 

 the line of them and also further renounced the liberty of fishing 

 within a space of three miles of them; but the bays and creeks here 

 referred to were the same as those referred to in the treaty of 1783, 

 and neither of them ever included the Bay of Fundy. 



The express connection between these two treaties is apparent from 

 the face of them. Reference is made to the treaty of 1783 in a man- 

 ner that cannot be mistaken ; the subject-matter is the same, and the 

 language as to the point in question identical. 



I contend, therefore, that the governments in adopting the lan- 

 guage of the treaty of 1783, in the treaty of 1818, received the words 

 with the construction and application given to them up to that time, 

 and that neither party can now deny such construction and applica- 

 tion, but is irrevocably bound by it. 



There are other portions of the article in question that aid in giving 

 a construction to the clause under consideration, and that irresistibly 

 sustain the view I have adopted. 



Thus it is provided, in another portion of the same article in refer- 

 ence to these same creeks and bays, that the fishermen of the United 



92909 S. Doc. 870, 61-3, vol 3 31 



