QUESTION ONE. 19 



EFFECT OF WAR OF 1812. 



III. His Majesty's Government contend that the privileges granted 

 in 1783 were finally determined in 1812. In that year war broke out 

 between the parties, and Great Britain declared that she would no 

 longer recognise these treaty rights. During the war, American 

 fishermen were excluded from the fisheries. And Great Britain was 

 in exclusive possession of them at the time of the negotiations. She 

 declared, at the first meeting, that the American fishing rights were 

 at an end, and that declaration was repeated immediately before the 

 signature of the treaty of peace. On the restoration of peace, she 

 continued to enforce her exclusive possession. She made some modi- 

 fication in the original order of exclusion pending further negotia- 

 tions, at the request of the United States, but the facts which have* 

 been set out in the British Counter-Case at pp. 23 to 26 show clearly 

 that she exercised a control which was consistent only with the posi- 

 tion that the treaty liberties were at a end. Great Britain contends 

 that the treaty liberties given in 1783 were terminated by the war of 

 1812, and by the declaration and action of Great Britain to which 

 reference has been made. 



The United States, in their Case, have formulated the question 

 with regard to the effect of the war of 1812 thus : 



" A considerable portion of his " (Lord Bathurst's) " argu- 

 22 ment is devoted to showing that the right of the United States 

 to exercise these liberties was dependent upon the treaty, and 

 that, therefore, they would not survive the treaty, all of which might 

 well be admitted without affecting the question at issue, which was, 

 not whether such rights would continue independently of the treaty, 

 but whether or not the treaty obligations were revocable without the 

 consent of the United States." (United States, Case, p. 26.) 



The position here assumed by the United States would appear to 

 be that, even in case of war, the treaty obligations subsisted unless 

 revoked with the consent of the United States. It is submitted that 

 this proposition is quite unsustainable. His Majesty's Government 

 do not desire to enter into the general argument as to the rules of 

 international law with regard to the effect of war upon treaties. 

 But at the very lowest it must be admitted that war between two 

 Powers, parties to a treaty, gives occasion to either of these Powers 

 to revoke the contract created by that treaty, whether the other 

 Power consents or not. This necessarily results from the very fact 

 of war and the hostile relations which it involves. 



The concession to the inhabitants of the United States to fish 

 cannot be compared to a cession of territory followed by possession. 

 The liberty in the present case is one which rests on contract. It is 

 not, and cannot be, disputed that Great Britain, after the war of 

 1812 had broken out, treated the rights conferred on American fisher- 



