2 24 FISHERIES ARBITRATION AT THE HAGUE 



or 1783 — which they have been enjoying since the treaty of 1783 — 

 were rights of original possession, rights which they had indepen- 

 dently of the treaty, and for the purpose of controverting that 

 claim. Lord Bathurst states what the right is, declaring that it 

 can rest only in conventional stipulation: 



"The claim of an independent state to occupy and use at its discretion 

 any portion of the territory of another." 



And he says : 



" It is unnecessary to inquire into the motives which might have origi- 

 nally influenced Great Britain in conceding such hberties to the United 

 States." - 



Those are the liberties that were conceded, according to Lord 

 Bathurst, the liberties he has described, the liberty of an indepen- 

 dent state to occupy and use at its discretion a portion of the terri- 

 tory. He says : It is unnecessary to inquire what influenced Great 

 Britain in conceding such liberties, and whether the other articles 

 of the treaty did or did not in fact afford an equivalent for them, 

 describing what was in fact done. This liberty is a liberty which 

 was conceded, and it is unnecessary to inquire whether the treaty 

 contained adequate compensation for them, and the Hberty is that 

 of an independent state to occupy and use at its discretion the 

 territory of another. 



Second, the description by Lord Malmesbury, in 1852, where he, 

 Secretary of State of Great Britain, as Lprd Bathurst was at the 

 time of his letter (p. 519, American Appendix), describes our right 

 in these words : 



"The rights are laid down in the treaty of 1818, as quoted by Mr. Webster; 

 that is, undoubted and unlimited privileges of fishing in certain places were 

 thereby given by Great Britain to the inhabitants of the United States." 



Undoubted and unlimited privileges of fishing. 



The expression of the Legislature of Newfoundland in the request 

 for a supplementary protocol which should make the proviso of the 

 Neiwfoundland Act of 1873 operative, upon the acceptance of the 

 treaty of 187 1, when Sir Edward Thornton, the British Minister, 

 speaking at the instance of the government of Newfoundland, in 

 his letter of the 20th June, 1873 (p. 196 of the American Counter- 

 Case Appendix), declares that that proviso, which in terms reserves 



