CORRESPONDENCE 455 



The Government of the United States fails to find in the Treaty any grant of right 

 to the makers of Colonial law to interfere at all, whether reasonably or unreasonably, 

 with the exercise of the American rights of fishery, or any right to determine what would 

 be a reasonable interference with the exercise of that American right if there could be 

 any interference. The argument upon which the Memorandum claims that the 

 Colonial Government is entitled to interfere with and limit the exercise of the Ameri- 

 can right of fishery, in accordance with its own ideas of what is reasonable, is based 

 first upon the fact that, under the terms of the Treaty the right of the inhabitants of 

 the United States to fish upon the Treaty coast is possessed by them "in common 

 with the subjects of His Britannic Majesty"; and, second, upon the proposition that 

 "the inhabitants of the United States would not now be entitled to fish in British 

 North American waters but for the fact that they were entitled to do so when they were 

 British subjects," and that "American fishermen cannot therefore rightfully claim 

 any other right to exercise the right of fishery under the Treaty of 1818 than if they 

 had never ceased to be British subjects." 



Upon neither of these grounds can the inferences of the Memorandum be sustained. 

 The qualification that the liberty assured to American fishermen by the Treaty of 

 1818 they were to have "in common with the subjects of Great Britain" merely nega- 

 tives an exclusive right. Under the Treaties of Utrecht, of 1763 and 1783, between 

 Great Britain and France, the French had constantly maintained that they enjoyed 

 an exclusive right of fishery on that portion of the coast of Newfoundland between 

 Cape St. John and Cape Raye, passing around by the north of the island. The British, 

 on the other hand, had maintained that British subjects had a right to fish along with 

 the French, so long as they did not interrupt them. 



The dissension arising from these conflicting views had been serious and annoying, 

 and the provision that the liberty of the inhabitants of the United States to take 

 fish should be in common with the liberty of the subjects of His Britannic Majesty 

 to take fish was precisely appropriate to exclude the French construction and leave 

 no doubt that the British construction of such a general grant should apply under 

 the new Treaty. The words used have no greater or other effect. The provision 

 is that the liberty to take fish shall be held in common, not that the exercise of that 

 liberty by one people shall be the limit of the exercise of that liberty by the other. 

 It is a matter of no concern to the American fishermen whether the people of New- 

 foundland choose to exercise their right or not, or to what extent they choose to exer- 

 cise it. The statutes of Great Britain and its Colonies limiting the exercise of the 

 British right are mere voluntary and temporary self-denying ordinances. They may 

 be repealed to-morrow. Whether they are repealed, or whether they stand, the 

 British right remains the same, and the American right remains the same. Neither 

 right can be increased nor diminished by the determination of the other nation that 

 it will or will not exercise its right, or that it will exercise its right under any particular 

 limitations of time or manner. 



The proposition that "the inhabitants of the United States would not now be 

 entitled to fish in British North American waters but for the fact that they were 

 entitled to do so when they were British subjects," may be accepted as a correct 

 statement of one of the series of facts which led to the making of the Treaty of 1818. 

 Were it not for that fact there would have been no fisheries Article in the Treaty of 

 1783, no controversy between Great Britain and the United States as to whether 

 that Article was terminated by the war of 1812, and no settlement of that controversy 

 by the Treaty of 1818. The Memorandum, however, expressly excludes the suppo- 



