324 BALCH— THE AMERICAN-BRITISH [April 22, 



to fish within British limits, or to use British territory, is essentially dififerent 

 from the right of independence, in all that may reasonably be supposed to 

 regard its intended duration. ... In the third article (of the treaty of 1783), 

 Great Britain acknowledges the right of the United States to take fish on the 

 banks of Newfoundland and other places, from which Great Britain has no 

 right to exclude an independent nation. But they are to have the liberty to 

 cure and dry them in certain unsettled places within His Majesty's territory. 

 If these liberties, thus granted, were to be as perpetual and independent as the 

 rights previously recognized, it is difficult to conceive that the plenipotentiaries 

 of the United States would have admitted a variation of language so adapted 

 to produce a different impression; and, above all, that they should have 

 admitted so strange a restriction of a perpetual and indefeasible right as that 

 with which the article concludes, which leaves a right so practical and so 

 beneficial as this is admitted to be, dependent on the will of British subjects, 

 in their character of inhabitants, proprietors, or possessors of the soil, to 

 prohibit its exercise altogether. It is surely obvious that the word 7'ight is, 

 throughout the treaty, used as applicable to what the United States were to 

 enjoy, in virtue of a recognized independence; and the word liberty to what 

 they were to enjoy, as concessions strictly dependent on the treaty itself. 



On January 22, 1816, the American Minister addressed a reply 

 to Lord Castlereagh, who had in the meantime succeeded Lord 

 Bathurst as foreign secretary. He said the treaty of 1783 was 

 intended to arrange the whole scope of the diplomatic relations 

 between the two nations. He said the British note admitted that 

 treaties often contained recognitions in the nature of continuing ob- 

 ligations ; and that it admitted that the treaty of 1783 was such a 

 treaty, except a small part of the article relating to the fisheries and 

 the article about the navigation of the Mississippi. 



Li searching for the answer of International Law to this differ- 

 ence of opinion, two principal sources can be looked to — the judg- 

 ments of courts of law and the opinions of leading international 

 jurists. In the first class there are two judgments, one rendered by 

 an American and the other by an English court, that sustain the 

 American contention that the third article of the treaty of 1783 was 

 not terminated by the War of 1812. 



In the case of the " Society for the Propagation of the Gospel in 

 Foreign Parts vs. The Town of Newhaven," the Supreme Court of 

 the United States, in rendering judgment, was called upon to pass on 

 the continuance or extinguishment of treaties, especially upon that of 

 1783, by a subsequent war. On March 12, 1823, Mr. Justice Wash- 



