456 APPENDIX 



sition that the British Government now intends to concede that the present rights 

 of American fishermen upon the Treaty coast are a continuance of the right possessed 

 by the inhabitants of the American Colonies as British subjects, and declares that 

 this present American right is a new grant by the Treaty of 1818. How then can 

 it be maintained that the limitations upon the former right continued although the 

 right did not, and are to be regarded as imposed upon the new grant, although not 

 expressed in the instrument making the grant? On the contrary, the failure to express 

 in the terms of the new Treaty the former limitations, if any there have been, must be 

 deemed to evidence an intent not to attach them to the newly created right. 



Nor would the acceptance by Great Britain of the American view that the Treaty 

 of 1 783 was in the nature of a partition of Empire, that the fishing rights formerly 

 enjoyed by the people of the Colonies and described in the instrument of partition 

 continued notwithstanding the war of 181 2, and were in part declared and in part 

 abandoned by the Treaty of 1818, lead to any different conclusion. It may be that 

 under this view the rights thus allotted to the Colonies in 1783 were subject to such 

 Regulations as Great Britain had already imposed upon their exercise before the parti- 

 tion, but the partition itself and the recognition of the independence of the Colo- 

 nies in the Treaty of partition was a plain abandonment by Great Britain of the 

 authority to further regulate the rights of the citizens of the new and independent 

 nation. 



The Memorandum says: " The American fishermen cannot rightly claim to exercise 

 their right of fishery under the Convention of 1818 on a footing different than if they 

 had never ceased to be British subjects." What then was the meaning of independ- 

 ence ? What was it that continued the power of the British Crown over this particular 

 right of Americans formerly exercised by them as British subjects, although the power 

 of the British Crown over all other rights formerly exercised by them as British subjects 

 was ended ? No answer to this question is suggested by the Memorandum. 



In previous correspondence regarding the construction of the Treaty of 1818, 

 the Government of Great Britain has asserted, and the Memorandum under considera- 

 tion perhaps implies, a claim of right to regulate the action of American fishermen 

 in the Treaty waters, upon the ground that those waters are within the territorial 

 jurisdiction of the Colony of Newfoundland. This Government is constrained to 

 repeat emphatically its dissent from any such view. The Treaty of 1818 either declared 

 or granted a perpetual right to the inhabitants of the United States which is beyond 

 the sovereign power of England to destroy or change. It is conceded that this right 

 is, and forever must be, superior to any inconsistent exercise of sovereignty within 

 that territory. The existence of this right is a qualification of British sovereignty 

 within that territory. The limits of the right are not to be tested by referring to 

 the general jurisdictional powers of Great Britain in that territory, but the limits 

 of those powers are to be tested by reference to the right as defined in the instrument 

 created or declaring it. The Eari of Derby in a letter to the Governor of New- 

 foundland, dated the 12th June, 1884, said: "The peculiar fisheries rights granted by 

 Treaties to the French in Newfoundland invest those waters during the months of 

 the year when fishing is carried on in them, both by English and French fishermen, 

 with a character somewhat analogous to that of a common sea for the purpose of 

 fishery." And the same observation is applicable to the situation created by the 

 existence of American fishing rights under the Treaty of 1818. An appeal to the 

 general jurisdiction of Great Britain over the territory is, therefore, a complete begging 

 of the question, which always must be, not whether the jurisdiction of the Colony 



