QUESTION ONE. 9 



be annulled by a subsequent war between the same parties ; it was not 

 simply a treaty of peace; it was a treaty of partition between two 

 parts of one nation, agreeing thenceforth to be separated into two 

 distinct sovereignties. The conditions upon which this was done con- 

 stituted, essentially, the independence of the United States; and the 

 preservation of all the fishing rights, which they had constantly en- 

 joyed over the whole coast of North America, was among the most 

 important of them." (British Case, App., p. 65.) 



" The whole fishery, as well without as within the special territo- 

 rial jurisdiction, had been the common property of the British em- 

 pire : so had been the whole territory to which it had been incidental. 

 By the treaty of separation, the territory was divided, and two sepa- 

 rate sovereign jurisdictions arose. The fishery bordered upon both. 

 The jurisdictions were marked out by the boundary line agreed upon 

 by the second article of the treaty. The fishery was disposed of in 

 the third article. As common property, it was still to be held in 

 common. As a possession, it was to be held by the people of the 

 United States, as it had been held before." (British Counter-Case, 

 App., p. 167.) 



The facts on this point have been set out in the British Counter- 

 Case, pp. 17-19, to which the Tribunal is respectfully referred. It 

 is there stated that Mr. Russell (one of Mr. John Quincy Adams' 

 colleagues at Ghent) 



" expressed his entire dissent from Mr. Adams' view, and stated that 

 in his opinion the point was not tenable. The opinions of other mem- 

 bers of the Commission to the same effect might be referred to." 

 (British Counter-Case, p. 18.) 



These other opinions may now be noted. The Commissioners were 

 Messrs. Adams, Bayard, Clay, Russell, and Gallatin. On the 10th 

 November, 1814, Mr. Adams procured the signatures of all of them 

 to a Memorandum for the British Commissioners based upon his 

 idea; but the other documents show that this Memorandum was as- 

 sented to by them purely for the purpose of negotiation and not as 



stating their view. 



11 On the 28th November Mr. Adams made in his diary a ref- 



erence to a consultation with his colleagues as follows : 



" I said that my reluctance at granting the navigation of the Mis- 

 sissippi arose merely from the extreme interest that Mr. Clay and 

 the Western people attached to it; that as to the ground we had 

 taken upon the fisheries, I believed it firm and solid. I had put my 

 name to it, and considered myself as responsible for it. But when 

 some of my colleagues, who had also put their names to it, told me, 

 in this chamber, among ourselves, that they thought the ground 

 untenable, and that there was nothing in our principle, I found it 

 necessary to mistrust my own judgment, particularly after the enemy 

 had given us notice that they meant to deprive us of the fisheries in 

 part, unless a new stipulation should secure them." (British Coun- 

 ter-Case, App., p. 140.) 



