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Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 THE FISHERIES DISPUTE A Suggestion for its Adjustment by Abrogating THE Convention of i8i8, and Resting on THE Rights and Liberties Defined in the Treaty of 1783 A LETTER TO THE HONOURABLE WILLIAM M. EVARTS OF THE UNITED STATES SENATE BY JOHN JAY LATE MINISTER TO VIENNA NEW YORK DODD, MEAD & COMPANY PUBLISHERS 1887 3 3 '^>. S 1 'I ■-^■'X '''*'T^''^'^.-^i ;■?,*:•»:.; f^j Wr"*!.-. f,9^V :%M- m :•& '»'■ ;"«' ,4 THE FISHERIES DISPUTE A SUflGESTION FOR ITS ADJUSTMENT 1!V AliROGATING THE Convention oe i8i8, and Resting on THE Rkjhts and LH!EkTn:s Deeexed in THE Treaty of 1783 A LETTER TO THE IIONOIIRAIU.F. WII.LIAM M. EVARTS OK THE UNITED STATES SENATE BY JOHN JAY I.AIE MINISTER TO VIENNA mM-' NEW \ORK DODD, MEAD & COMPANY PUBLISHERS 1887 -RIN-'fNG AND 500KBiNDiNG COMPAN'' NEW ^3RK, THE FISHKRIES DISPUTE Di:Ak Alk. I^vari'S : The necessity of some decisive ac- tion by tile (luvernment to arrest tlie vexations and harass- ing treatment of onr fishermen l^y tlie Canadian antlioritics is recognized Ijy tlie cnnntry, as well for the protection of onr own rights as for the avoidance of a breach of onr harmonious relations with Great Jiritain ; and the passage in the Senate by 46 to I of Senator I'Almunds' bill to au- thorize the President to protect and defend the rights of American fishing vessels, American fishermen, and Ameri- can trading and other vessels in certain cases for other pur- poses, seems to show that the Senate shares the judgment of the country that a continuance of the policy under which such annoyances are possible would be a mistake, and that their further toleration is forbidden by a decent regard to the riglits ot our fishermen, and to the peace, interest, and dignity ol the nation. Upon the question how far the bill is calculated to dis- turb our friendly relations with Great Britain, tlie New York llcralti reports your views as follows : Mr. lu-.irts argued in support of tlie bill, wliicli he said, was not in the iiaUiru of a menace or tcndin;^- at all in that direction. It was the duty of Congress to take the subject away from local disturbance, irritation, and resentments. So far from the Ijill tendini,^ to war or tendin;^ to underage, il was intendetl to have a contrary effect. It was an innnediate announcenient to the people that they had only to trust their protection, not to personal resentment, but to the Government of the United States, and when the opening summer should liring .ibout the recurrence of the fishing season and of the lishing dangers, the i'M?/! "^ THK FISIIKRIKS DISPUTE. one not thnro„ol>lv .u-u-o of . '''" ^'^'"^''^'^>' ^^■^1' ^vl'ich slicld vc.,t„rc 1„ ,„)-„ advice TI,: "''H-'iation, ies, l.ovvcvc,-, i, pcculh, ">'» "- fore ti.o'-co,,,, ,. ' r 't rr':;:""l ""''"'"' '° ■""">■ '^- 'ato a day tliat'a ,„ , t ~'-'-«P°" have sta- pcace and itain. - prt)j)osi- - is await- tli which ,^oliation, le fislicr- , and tlie '■cspoiul- Deccin- c rcph'cs eccmber 'f Sccre- vith the out, tlie 'crctary iilly be- :e to so on and I think XCOM- h'ation cilable Great :xtent 1818. oiible irs, is edy ? effect 5 it would liave upon ourselves, disposing us to firjht ratlier than to ar;_;ue ? or if we are forced to retaliation as a last resort, slioulti not its suspital)lc, or even bai'barons ? IWini:-!! Mi-i(.\siki-i-nn\ (i|. I III: 'I'Ki: A TV oi- i."-' S. ( )n (me point both Mr. ISax'ard and h'arl l\(>sc;bery. Mr. Phelps and Lord Sali-bur\' >eem to be aL;reed, that the Treat)- of iSiS is the law on the interpretation ')f whi'di de- pends the deei-ion of the (piestion in tli-])ute. Piut ilie re- cent correspondence on die riudits of American fi-^heinien, snbmilletl by the President to the Senate on Decendjer 8, iSSf), shows that this apparently simple cpiestion of inter- pretation is, in tiu' \-ie\\ of the U(^])artnient, t'airl\- inllnencctl bv the series of law^ and regulations reterreil to b\- Mr. J)ayaid. afl'^cliii!; the ti'ade between the Ib-ilish I'ro\'Inces of North America and the United States, which ha\'e since been resi)cc:ti\el\- adcvpletl by the two countries, and have led to amicable and beneficial relations betw cen their re- specti\'e inhabitants. buiUlin^^' up a trade between the two countries hninded on mutual interest and ath'antai^e, and cstablishin;4 a reciprocal liberty of commerce. 1 he ([ues- tion is next, as Mr. i'ayard and Mr. Manning have both shown, improperly subjected, as ie_^ards American riL;hts, to acts of colonial lei^i-lation uiuhn- a sui)posed delec,fation of jurisdiction b\- the Imperial (iovernment of Cireat Ibitain, and secMiiiiuj;l_\- intended to include authority to interpret and enforce the pro\-isioiis of the Treaty of l8i.S. The ehect of the Colonial lej^islation and colonial e.xecutive interpreta- tion, if executed accordinc; to the letter, would be, ;is Mr. Bayard contends in his letter to Sir L. li. Sackville West, '(-'I'^^taiuiiiiL,', iicrica have ''"■■•'>• trains mem of (Mir ^ ''inada and t'llcr of the -i-ic.ins iin- ■bcry. Afr. . tiiat the wlii'-h c!c- it die re- ishenneii, :emljcr 8, of intcr- I'liienccd \'iiices of \''-" since 11(1 ])ave heir iq. tlic two .^L', and L' ques- 'e both ■^I'ts, to tion of 'litain, '■etand i'ect of ■pi'eta- s Mv. West, THE FrSMERIKS DISI'UTi:. 7 of AIa\' ro, lSS6, to expand the restrictions and rentmcia- tions of tlic Treaty of i8iS, and to further diminish and practically deslru)- the privileges expressly seemed to American hshinjr vessels to \iy tlic of- ficers of tlic Dominion of Canatla and the riovince of Nova Scotia ; as an inxasion of the laws of commercial and maritime intercourse exist- ing lieiween the two countries, and a violation of lio:-pitalitv ; and for any loss oi- injiirN re:.tiltin- therefrom the Government of Her ISritish Majesty will be held responsible. In reply lu your cnmplainis of oiilra-cs, the llritidi Minister at W.tshiii-inn has ad\ised us that the matter has been referreil to the Domirion Government, and Mr. I'helps at London has been informed that no further steps can be taken about the cases before the Canadian courts have been adjudicated. II 8 THK FISI1KRII-:S DISl'UTK. Ihc question, therefore, of the rights of American fisher- men under tlie Treaty of i8iS. is made by the l^ritisli Gov- ernment to depend not altogetlier on that Treaty alone, but partly, as it would .'.eem, on a statute of (George 111., on colonial acts of the ]5;iiish rrovinccs. the rulinos of Cana- dian courts, and the proclamation ami acts of colonial olh- cers— all assuming to be based on the provisions of that Ircaty. This fact justiiics a careful consideration of the relative advantages and disadvantages which result to us at this moment from the Convention which for so long a time has played a i)rincipal part in this regrctable and\-hronic controversy -a treaty which under the interpretation placed upon it by Canadian and British officials is being used not as a shield to protect our fishermen in the enjoyment of their rights, but as a weapon for the interruption of their business and their helpless subjection to wrong and humiliation. This state of things, which by no means accords with the American idea of national fitness, and which it is proposed temporarily to correct if necessary by retaliation, clearly re- quu-es a thorough and permanent change, based not on re- taliation for wrong, but on clear principles of right ; and we find two propositions from Hritish sources looking to a peaceful remedy which deserve respectful consideratTon. Offkks ok Xkcotiatkix and AkHirKAriDX. The one is a proposition from Lord Rosebery for a frank and friendly consideration of ihe whole question'with a view to the revision of the Treaty oi iSi8, T/ie sceoiK/ is said to be a semi-official proposition from the Montreal Ga.-ctte, the official organ of the Dominion Government of the 35th of January, which said : " If, instead of resorting to cuercive measures, the United States Con- gress could consent to AKiiiTRATios, it would adopt the manlier and more dignified course." Either of these plans, adopted by mutual agreement, upon a basis that would certainly secure the original rights and THE FISIII'RIKS DISPUTE. 9 ^erican fislicr- - l^ritish Gov- ;it\' alone, but '>'-yi^ ill., OM '"S-^ of Cana- culoni.il ciffi- ^u>n^ of" that ratio;) of the -suit to us at ' '"'ig a time ^>ihI chronic '■'tion phiced '\i^" used not iicntofilieii- <-'"■ IJiisincss liatioii. 'tis uitli tjie ■'^ l>''opo.sed . clearly re- "t't on re- t : and we kino- to a -'■ation. 'Ion. =^"'a franlc fli a view ;ion from dominion f^. instead tc>s Con- tlopt tile "t, upon lits and interests of our fishermen as recognized by Great Britain in the Treaty of Peace, would be preferable to any measure that mi_L;ht: bear the character of opposition or retali.iliou. l^ut without an admitted basis of nrinciple ami riL;lit ilis- tinctl)- formulated, as were the three rules laid tlown fur the Geneva .Arbitration, and to wliich Great Britain wisely t;'ave her adhesion, it would seem idle to expect a satisfact(u\- measure of justice either from nej^otiation or arbitration. Our recent nes^'otiations have only served to make more clear the fact that the two _g(nernments limk at the ri<^hts of our t'lshermen from different stand-points ; and without an ai^reement in advance upon the rules by whicii the arbitra- tors are to i)e i;iiided, an award would probably dissatisfy the defeated party, and ser\'e as little to commend arbitra- tion to thouL;htful l^ni;iish or i\mericans as the American claim for indirect dama<;es at (icneva, or the awarti cif the J?el^ian umpire at Halifax. There should be no difficulty in af^reeing on a l)asis for either nes^otiation or arbitration, in the shape of rules declarin<]^ the right of our llshermen in iant^uat^e that even our Canadian tViends can understand, when it is remembered that their violation of the Treaty of iSiS has given us a right to abrogate that treat)' ; and that its abrogation would restore to force Article 111. of the Treat}' of Peace in 17S3, the operation of which was suspended by the Treat}- of 1818, but which UDuld re\ ive in its i)rigin.d force were the Treat}' of iSiSalirdgatetl ; precisel}', the latter treat}', as after being suspended b}' the adoption of the Re-ciprocit}' Treaty of 1854, was re\-i\'ed b}' its termination in 1S66; and after being again suspended b}- the 'I'reat}' of 1S71, was again re- stored b}' its termination in 1SS5. If our British friends should have a doubt upon this point, antl be inclined to tliink that our rcgartl for the sanctil}' of treaties will iiuluce us to pardon their \-iolation, or that the explculed sugges- tion that our ancient t'lsher}' rights recognized and defined at the peace, were lost by the war of i8i3, a glance at the law and the facts, at the testimony of history and the ojjin- ro ''■f'l-: VlSUKiUKS DISPUTE. y: '^"'"^ ^^'^'Trsn I>.MPosiTrnx .,o Rrvr J'le note of the I'--,,-! f i^ P"'""r colonial, to effect ,|" '"'""'"." «t"t.,tes, i„,. -;"H--ncd of. ,, ,, q„e„i ;„';•"- «f ■\".crica„ vesse s ""patch „./.,,„„t addi„;-„„ ,7;"°'. '-"-ever, closest, -'" I'nvy C„„„ci,. i„ „, i^i, .= ° I'--- -port of ,„e An.eti- ^-■]n. of the Con.entio,, of .S,S T"' """ ' "^ "'o pro. ". cKi.er co,u,,,e,i„ .„ ^^''^ 'ave Ix-con.e i„e„„„„f^ f-71-.Hn,, c,„, .,„-„\. t s ,h t t. " """ »"~'"i" » -■">.■•■ Lord RoSe,;:dt ; " '"'"" ''■■'" -^^ -cu.sid I)0CS not thfs Sllcro-esffnn • • l;':y con„ci, .„„, :;; r;::';;;.;"^';"..^ "■■■>'. t-.o o„ac,,-a„ <-|."n.„,.,. ,,f ,,,,,;' ^^.io,>otdKse,u. that,,, e -;' 'a. that Co,n.e„,io„ ,,,;•'.''?''■■■'' P-ci.matio„ y-h .-.bro.atcd, before ,, ^'"f ""--ily ,,vi,sed, . ,: P-™.-",e„, .ettle,„e„t of th „;, i::':" ^' .-'-''-tot,- a„d ;\on a ■'"' f/ir wost Canadian ^ J^n'tain, that the "Acuities '-■'niatioi,, ■\"ised, or ^"'■y and in con- >■ Majes- d to the terms of tlic Convention of i8iS, and rccoq-iii/.ing the frank and friendly assurance of their most earnest desire to arrive at a settlement consonant with the rights and interests of the United States, it will be less easy to defend the British Government from the grave resi)onsibility of having persist- ently instigated, first at Ghent, and again at London, the adojiiion of the Article of l8l8. their persistence in the bold assertiiMi, which British law ofliccrs had shown to be un- sound, that we had lost by the War of i8r2 our original and ancient rights to the fisheries as recognized and defined in tlie Treaty of Peace, ami by their acting in advance on that groundless suggestion as soon as the war had closed, by wannng and seizing our fishing vessels without reason and without law. Nothing, therefori.', C(Mdd uku'c becnt and the oi-it;sh people th,m a fraidc and pr.ictical exhibition of the honorable desire expres-edt by Lord Rosebcry to arri\-e at a just settlement of the ([uestion. If they assent to the abandonment of the Convention of 1818, fraught as it is with errors of law ami wrongful acts, anil which Uu" two generation ^ has crippled om- fishermen in their ancient rights, and subjected the Rcfiub- lic to \-exalions and affronts which ha\-e become so intoler- able that the graxest legidative body in the Republic is read)- for retaliation ; if they assent \.o a return to the fair di\-i-ion of the fisheries made by i-he two empires at the peace of 178:;- -anti when t!ie_\- recid the part b(n-ne by Americans, and especially the New hhiglauders, during two centuries in securing the fi-^heries, tliey ma)^ well ad- mire the moderation of our demands and the generosity of our concessions— there wtuild seem to be no shadow of rea- son \\h_\- the entire question of tlie fisheries should not be arrant;ed with good-will yn\ all sides; ami with a common. di>poMti,,) a preiexi or means of obstrurlin- the business of deep- sea ti--liiii- liy ( iiizensof the Ciiited States, and of the inlerrnptin- and de-trnvii;.^ iIk' ,-,,mnierci,il intercoinse tint since the 'I'reaty of i.SiS, and iii(lei)en.!eiu of aii\- treal\ whatever, has -rown up and now ex- ists uii.ler the c.nicuMent and friendly laws ami iiiL-rcantile regulations ot the respe.-live couniiirs (4.1(1 Con-ress. 2d Session, House of Kepre-entatives, ivx. Doc, p. t.j). 1 he wide and irreconcilable differences between the view of American riviits under the Treaty of 18 1 8 taken by Mr. iiay.ird, .Mr. Phelps, and Mr. Senator Edmunds, represent- '^^"■'t '■" ^vhicl, the '^'^ ^ "'t^'J States "^ '-"'3' ca.se a,-e '^" ^" ^^^'■- Piiclps ; THE IISIIHKIKS DISI'UTK. 15 "-^ '-"itic. and "^"■^ '■■■•■'' '"vn'ins.i. '""^""' •■' P'an cal- "' "Kliistry. '-■ ■""' ^"UUst M-.S- '' '-^ ■'^"s(,n-„ecl bv '"•""'■'ill the re- ''''""' House of COUIlt)-y • ^ * ■"'^■^■t"'ii of the '"^■■'^■^ "'" (Icq,. ■'■'■'■"Ptin:^ a,ul 'V.ilvof ,,s,fj, •'"<' iiou' ex- '^' '■^■.^iil.itioiis '"• House of en by J\jr. '■'^P'eseiit- in^ the Committee on Foreij^n Relations in the Senate, and by Mr. Hchuont, representin;^ the hkc Committee in the House, and tlie view of our rii^iits under tliat treaty tal-;en by tlie Canadian authorities, and adopted or acquiesced in b)' tlie British Government, seem to show the hopelessness of cominy to an aj^reement under that treaty. Thk Decidi:!) View of Secr^jtary Manxixo. The Secretary of the Treasur)-, Mr. Planning, in his very able response to the Committee on Foreign Affairs in the House of Representatives, dated Februar)' 6, iSS/, on the fisheries question, says (p. 4) : It is impossible not to rec(V4nize liv." justly my C()11c;i,l;"uc, Mr. ISay.ird, lias j)ortia\x'(l ilic inhumanity and brutality with which cer- tain Canadian officials treated tlefenceless American fishermen during the last summer, e\en iliorie who had g(jne out of their was to rescue Canadian sailors, ,ind haxiu.i;' entered a Canadian ba\ to safely land those tlu'y had sa\ed, attempted to procure food to sustain their own lu'es. Mr. Manning shows that the "restrictions" enforced by Canadian statutes and oflicials against our (ishermen, uneler pretence of restricting commercial privileges, are, in fact, in violation of our tishiiig rights ami of the Tre- of 1818, and he tells us of .1 itew Canadian Act, approved by the Otieen in Council on Xo\-ember 2>>, iSSG. entitled " An Act ftirther to aineitd the Acts re-;[)ecting" fisheries by for- eign vessels," and Afr. Manning says : TheCanailian Act thus JKuiiv.; the royal appro\al was intended, as has been openb' .uow'd, to toiieii an\- .\merican ii-,liiu:4 \essel whicdi is fuind haxm;.; entered Canadian water.-., or the port of Malifix, to 1ju>- ice, bait, oi- other articles, or toi- any puipo-e other than shelter, repLiii-, wdotl, or water. 'l"li.it we den\". .\]\i\ I'l'ply th.U such le;.;isla- tion is a repeal and anmihuenl by i;nL;l.iiid of the arran;.;emeni made ill 1S50. and to that repeal we are entiiletl to respoml by a similar re- peal of our own law, ami te a refusal hereafter, and while tlebate or negotiation L^oes on, to c-^ statute '' -'^'^' "found land ^■'^■"tofthe con- 'P'uion t/uzU/nS """>■ ^^'h! good ^"'■'i "Kercourse ■'■'-''■•') character '" '''"-ass and I'll'^-o impracti- ''ts, such Je..is- t tJiat Great ^' and with- •-'eration of ■ties h^ xXxQ Newfoundland fisheries, can we consent with a (Xwt regard to national fitness to any further delays ? Is there any good reason why wc should not notify Groat Britain that unless our rights under the treaty, as wc understand them, are at once recognized and permanently protected, we propose to abrogate the first article of the Treaty of 1818, as for a sim- ilar reason — non-perfui luance of contract — we terminated in the last century out treaties with France. Adrogation of Treath'.s for Violation of Con- tract. On July I, 1798, Congress annulled by act the trea- ties with France made in 1778, stating among the reasons for tiic act, that these treaties liad been repeatedly violated on the part of the French Government ; that the just claims of the United States for reparation of the injuries so com- mitted have been refused, and that there was still pursued against the United States a system of prevailing violence infracting the said treaties and hostile to the rights of a free and independent nation (l U. S. Stat., i., 578 ; Whar- ton's International Law Digest, 137 a). The act was sustained by the American envoys, Messrs. Ellsworth, Davie, and Murray, in a letter to the French en- voys, July 23, iSoo, on the ground of prior violation by France. It was remarked that treaties being a mutual compact, a palpa- a1)lc violation of it by one party did, by the law of nature and of na- tions, leave it optional with the otiier to renounce and declare the same to be no longer obligatory ; and that of necessity there being no com- mon tril)unal to which they could appeal, the remaining party must decide whether there had been such violation on the other part as to justify renunciation. To the further suggestion that the laws of nations ad- mitted of a dissolution of treaties only by mutual con- sent or war, it was remarked by the American envoys that Vattel in particular, the best approved of modern I I8 THE FISHERIES DISPUTE. writers, not only held that a treaty violated by one party niit,'ht for that reason be renounced by the other, but tliat when there were two treaties between the same parties, one might be rendered void in that way, and the other re- main in force. Mr. Madison wrote to Mr. Edmund Pendleton, January 2, 1791 (I. Madison's Works, 524) : Tlint tlic contracting power can annul the treaty cannot I pre- sume he questioned, the same auihoiily precisely being exercised in annulHng, as in making a treaty. y/zd/ (I breach on one siife [ei'm of n sin^^/r article, each being con- sidered as a condition of e\ery oilier article) iiisc/targes the other, is as little questionable, Ijut with this reservation that the other side is at liberty to take advantage or not of the breach, as dissolving the treaty. . . . It is, of course, desirable that whatever disposition is made of the Fisheries Convention of 1818, which has so long been a source of trouble, should be made by mutual consent, and that with its departure the international differences should cease. ]kit if Great liritain, under whatever influence, should refuse her assent to this, and if our Government is satisfied not only that we arc entitled to abrogate the treaty, but that the rights of our citizens and the national dignity demand its abrogation, a review of historic facts and of the law of nations applicable to the Treaty of 1783, and of the opinions of learned crown lawyers of Great Britain and of distinguished jurists 'n\ the United States, all seem to unite in showing that the abrogation of the first article of the Treaty of 1818 would revive in full force the third article of the Treaty of Peace in 1783. The article which would be thus restored is as follows : ARTicr.K III. It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the sand bank and all the other banks of Newfoundland, also in the Cudf of St. Law- rence, and at all other places in the sea, where the inhabitants of both countries used at anv time heretofore to fish. cil lal tl| lul b rE. THE FFSIIKRIF.S DISPUTE. •;^^d by one party ■'"-' otlier, but that tJie same parties 'TKl the othe IQ r re- endleton, Ja„t,ary ■cafy cannot I prp. ■ 'J^'i'ig exercised in '!''' '^''<^'' being con- '"K^'-s (he ot/u-r, is "'e other side is at ''s dissolving the •" disposition is '"'ch has so long ^i"tiia] consent, "-'1 differences Jever influence, government is ■ate the treaty, itional dignity cts and of tlie '3, and of the ''■'tain and of em to unite in of tlie Treaty "■^'c'e of the oi'Id be thus " continue to ''e sand bank ""ofSt. J.aw- 'tantsofboth And also that the inhabitants of the I'nited States shall have lib- erty to tak'c lish of e\-ery kind on such part of the coast of New foimd- huul as llritish tiilicrn\en shall use (but not to ilr\' or cure tlie same on that inland), and also kw the coasts, liays, and creeks of all otliei' of his r.ritannic Majesty's Dondnions in America ; ami that tiic American fishermen shall liavc liberty to dry and cure fish in any of the unsettled bays, liarbors, and creeks of Nova Scotia, Magdalen Islands, and Lab- rador, so long as the same shall remain unsettled ; hut so s(;on as the same or either of them shall be seltletl, it shall not be lawful for tlie said tishermen to dry or cure lish at such settlements without a previ- ous agreement for that pui'pose with the iidiabilanis, proprietors, or possessors of the land. The Newfoundlaxi) Fisheries in European and American History. Before passing to the unsuccessful attempt of the llritish Commissioners at Cihent, at the close of the War of 1812, to persuade the American Commissioners that the fisheries article had been abrogated by the war, and to their greater success in London in l8i8,whcn Messrs. Rtish and Callatin \-oluntarily surrendered our olden rights and consented to the conditions under which otir fishermen are now so ill- treated, it may be well to recall some of the principal in- cidents that preceded and attended the Treaty of I'eace, and which explain the regard shown by the old Congress to the; value of the fisheries, and the rights of the fishermen : and the difficulties which had to be overcome by the Ameri- can Commissioners to Paris before they could secure for the young republic the rights and liberties guaranteed by Arti- cle III., and which by the Treaty of 1818 were needlessly surrendered. Senator Edmunds remarked, in the North American Re- ivciv, that " no permanent gain for American interests has been made since the Treaty of 1783." /\s regards our fish- ermen, were the technical reasoning of our Canadian neigh- bors to be accepted as correct, it mii;hl be said that Ameri- can diplomacy had stripped them of their riyht to decent 20 THE FISIIFKIFS DISI'L'TK. and Iiospitabic treatment conferrcil by the law of God, and reco^Miizcd as sacred by the law of nations. The history of the Newfoundland fisheries, of whieh an interestin;:,^ sketch is t;iven in the learned report of the late Lorenzo Sabine, of Massachusetts, submitted by the Hon. Thomas Corwin, Secretary of the Treasury in 1S53, throws light not only upon the estimate of their importance by the American Congress, but by the courts of ICngland, of France, and of Spain. The Newfoundland fisheries were known to the liis- cayans and Normans in 1504, and in I 5 17 fifty :liips of dif- ferent nations were engaged in them. In 1577, the l'"reiich employed one hundred and fifty vessels, and by llenr\- IV., and his great Minister SuII)', the Newl'omidland codfishcry was placed under the care of the government, and to her fisheries France was indebted for her possession'; in Amer- ica. The first difficulties from rival grants of land b\' ['ranee and F:ngland occurred in Arcadia, which embraced the jjres- ent colonies of Nova Scotia, and New ]5runswick and Maine, between the Kennebec and the St. Croix Rivers. These were limited by the Treat\- of St. (Germain in 16S3, by which Charles I., who had married a French princess, resigned certain places, whose cession was afterward held to be fraudulent by Cromwell, who erected Nova Scotia into a colony, and after the restoration of the Stuarts, by the Treaty of Breda in 1G67, it passed a second time to France. A third treaty, that of London in 1686, confirmed the two powers in their respective colonies. On the proc- lamation of war between England and France on the acces- sion of William and Mary, Massachusetts commenced prep- arations for the conquest of Nova Scotia and Canada, under Sir William Phipps ; and at the peace of Ryswick, in 1697, Nova Scotia was again returned to the ]'\ench, who promulgated a claim to the sole ownership of the fisheries, Villabon, Governor of Nova Scotia, notified the Governor of Massachusetts of royal instructions from France to seize TIIIC FISIIF.RIKS niSriTK. 21 every American fisherman who ventured cast of llio Kenne- bec River into Maine, an- the House of Com- mons and committed to the Tcnver, and auKMig tlie charges against him was that Robert l-.arl of Oxford and Ivul Men- timer had in defiance of an act of Parliament advised their Sovereign that "the subjects of France should have the liberty of fishing and drying fish in Newfoundland."' "But such," wrote the historian, " has been the advance of civili- zation, and of the doctrine of human brothcrhootl, that an act which was a fhigrant crime in his own age has become one honorable to his menuuy. The great principle he thus maintained in disgrace, that the seas of British America are not to be held bN" British subjects as a monoply, and to the exclusion of all other people, has never since been wholly disregarded by any Ib-itish Minister, and we may hope will eveiMunv api)car in British diplomacy to mark the progress of liberal principles and of man's humanity to man." ^ The French, undismayed by the loss of Nova Scotia, Il(f' 22 T"E FISHERIHS DISPUTE. ^" J/ 45 I '110 land anri t? '"'• -"111 IVppcxn i„- 1 ■ """"i-indcr ^„,-.- Tlliitv >.e-,„ I f"'' "'"'"■ «'■"' car.,o ' f " "•'''"S' '■•-■"lari-s -\r,. o ', . " '-"nJitioii of Can,- 1! » „,.,"".•- tl.e „,„,( »„ ' ""- co,H,„est of la„.t..,:.^^- ■""'"'"'- Un!ve,- a, ,';,:;"'""" "^ ""-■ ''"•-•-=u.H.,o,,o,.a;;,^tKiS;;:;;'^1'"''^''''->'ce,. at Jiome and in he,- r-i TE. " 1721 their fleet of '^d said to be quite ^in at war, and the ' -'I'Hl Louhbourcr point of attack!' '^'■cs had been re- ' ^'I'lKlred cannon ^^''i-^ its strengtli ^'^•' It had nun- "I^^iat sncJ, a cit)- '^cy of American '" '-S alone found I^^e tieet sailed '■■^ -'"d the ro\-al "^'"<-%niaintained '>iisand cannon- '^ ^y the assail- -tl and exj^osed <-t on the forty- nander snrren- -'' ^'-'s- n^-ing, ^' S:i-cat value. ^ '■" the House ^eal, courao-e d." ton in view '' ^ "'^' Jiold in ^ of the real, conquest of '"cnt of the ^ ^ ' "^ i;/A^r. ' ^'"tl trans- !an equiva- lent.' " -Ji lias been md in her THE I'lSlIERIES DISPUTE. 23 colonics, Cape Breton was restored to France, and among the results of that peace was counted the alienation of the affection of the people of New lCnc;land, who felt that the House of IIano\'er, like the Stuarts, were ready to sacrifice their victories and their interests as " eciuivalents " for de- feats and disasters in I'-urope. In 1756 came another war between Great liritain and I'"rance, and two }-ears later the second siege ofLouisbourg b}' twenty ships of the line, eighteen frigates, a fleet of smaller vessels, and an army of fouitecn thousand men. The suc- cess of this expedition, in wh.ich Wolfe commandcil a corps, caused great rejoicings in iMigland, and the l'"rencli colony were deposited at St. Paul's. In this last w.ir Americans bore a distingui-^hed part, and it was said in the llouse of Commons that of the seamen employed in the British navy ten thousanil were natix'cs of America. Among the promi- nent actors were many who became prominent in our revo- lution. With Pepperell at Louisbourg were Thornton, a signer of the Declaration of Independence ; Bradford, Gridley, who laid out the works on Bunker 1 lill ; and on the frontiers of Virginia and in the West was Washingtt)n. l"-n- gaged in one or other of the I'^rcncli Wars were Scars, Wol- cott, W'illiams, and I.i\ii:gston, all among the signers ; I'rcs- cott, Montgomery, Gates, Mercer, Morgan, Thoina-^, James Clinton (i\\c father of DcWitt Clinton), Stark, Spencer, the Putnams, Nixon, St. Claii-, tiibson. Bull, Durke, Butler, Campbell, and Chief Justice l)}'er of (.'onnecticut. It was, says S 'bine, in Nova Scotia and Canada and Ohio, at Port Royal, Causeam, Louisbourg, Ouebec, and in the wilds of Virginia, that our fathers acquired the skill and experience necessary for the successful assertion of our rights. By the Treaty of Paris in lyf)^, w'aen Canada and its dependencies wrre (ormally ceiled 10 (ireat Ihitain, Prance received the right of fishing ami drx'ing on the coast o{ Newfoimdl I'ld, as pro\ided b)- the Treaty of Utrecht, but at a distance of fifteen leagues from Cijie J}reton — a con- cession which w>is \ie\\ ed with great displeasure in Pngland, M 24 THE FISHERIES DISPUTli. where it was said that " the fislierics were worth more than all Canada." When in 1778 a treaty of commerce was made between the United States and France, it was provided by articles IX. and X. that neither par^y sliould interfere witli the fishing riyhts enjoyed by the other, a provision which seems to have been forgotten by France wlien, in April, 1779, she secretly agreed with Spain that if she could drive the British from Newfoundland the fisheries should be shared only with Spain. The Old Congress o\ the Fisheries. The historic and memorable part born by the American colonists in securing for Great Ihitain the Newfoundland fisheries, added to their importance to the colonies them- selves, naturally led to a ju^t appreciation of their value On October 22, 1778, Congress adopted a plan which is referred to in the instructions given to iM-anklin "for re- ducing the Province of Canada," and the first reason niven for declaring the reduction of Halifax and Ouebec objects of the lughest importance, was that "the fishery of New- foundland is justly con^-idered as the ba^is of a ^ood M-^ rine " (11. Secret Journal of Congress, 1 14^ OirMay v 1779. It was recorded, on motion of Air. B„,ke, sec<-,nded by Mr. Douglas, " that in no case by anv Treatv of Peace the common right of fishing be given up ; " and on June 24 ,770 they voted, "that it is essential to the welfare of all the United States tliat the inhabitants thereof, at the expiration of the war, should continue to enjny the free and undis- turbed exerc.se of their common right to fish on the b inks of Newfoundland and the other fishing banks ;,nd seas of North America" (Do., p. 184). The earnestness of Congress in this view appears from a further resolution, July ,st, for an explnnatorv note .0 the Minister at the Court of Versailles, whereby such common right shall be more explicitly guaranteed. On }ulv 17th touching the treaty with England, and on July 2(3, 1V79 in THE FISHERIES DISPUTE. 25 a resolution of which the spirit will be approved by our harried fishermen of to-day, on motion of Mr. INIcKean, sec- onded by Mr. Huntington, it was resolved, that if after a treaty of peace with Great Britain she shall molest the citi- zens or inhabitants of any of the United .States in taking- fish on the banks and places described in the resolutions passed on the 22d day of July incident, such molesta- tion (being in the opinion of Congress a direct violation and breach of the peace) ehall be a common cause of the said States, and the force of the Union be exerted to obti.in re- dress for the parties injured. Elaborate reports on the common right of the States to the fisheries, on January 8, and August 16, 1782 till. Secret Journal of Congress, pp. 151, 161 1, show how thor- oughly the subject had been studied. As regards its instructions Congress, under the influence of M. Gerard and M. dc la Luzerne, the jMench ?»Iini-,ter at Philadelphia, took a lower tone when, on June 15. 1781, it gave to its peace commissioners the humilialiiig and in- credible instruction, which Madison denounced as '• a sac- rifice of the national dignity," to undertake nothing in the ncotiations for peace or truce without the knowledge and concurrence of the Ministers of the fving oflMance, " and ultimatelv to govern )'ourscl\'e^, by their ad\-ice and opin- ion " (X. Diplomatic Correspondence, 75, 76). While no satisfactory exi)lanation has been given for the adoption by Congress i)f this instruction, the reasons for its being urged by the Court of France have been re- cently made quite clear b\- the valuable confidential cor- respondence of the Count dc Vergcnnes with his agents at Madrid, Philadelphia, and London, published in part by the Count de Circourt, ami more largely comprised in the invaluable collection of papers relating to the peace negoti- ations made by Mr. B. F. Stevens, and now awaiting in the State Department at Washington the action of the Government. M. de CircGurt's third volume and the recent" Life of m it"' 26 THE FISHERIES DISPUTE. Lord Shelburne," by his grandson Lord Edniond Fitzmaurice a brother of Lord Lansdowne, the Governor-General of Canada, both pubHshed in 1876, the first at Paris and the second ,n London, shou- precisely the position occupied by each of these three powers, Great Britain, France, and bpa.n, in opposition to the American claims to the fisheries. The Opposition ok England. France, and Spain. England's hostile position on the fisheries was defined by he announcement of the Shelburne Ministry to Mr. Oswald. that the hm,t of Canada would, under no circumstances, be made narrower than under the Parliament of 1763, and that he nght of drying fish on the shores of XewfoundlLnd co Jld When Fiance, by the Treaty of Madrid, April 12, 1770 .nduced Spa.n tojoin in the war against Great Britain, ll.; reluctance of Spain to assist in the independence of revolted colonies, whose power and influence she hated and feared was overcome by an agreement on the part of France' with small regard to the interests of the United States or to BHti^rT °;^'^^'7! -'^J> the Republic, first, that if the iM.t.sh should be driven from Newfoundland its fisher- ies were to be shared only with Spain ;. nd second; that Spam should be left free to exact, as the price of her alliance m the war, a renunciation of every part of the basin of the St. Lawrence and the lakes, and the navigation of the Mis- sissippi, .^d of all the land between that nver and the A 1 - ghan.es (X. Bancroft, 190, quoting authorities) In pursuance of that agreement, and with a view to achtate the designs of Spain against America to which elabo.ate instructions to his diplomatic agents in America H^ht'^'n!"^';"" "•^"""' "' '" I-cellency against on; trast to the view held by our own Commissioners, and which L THE FISHERIES DISPUTE. 27 as the treaty shows, was, in that solemn instrument, recog- nized and adopted by the British Government. lie saitl in a letter to M. de la Luzerne, the French Minister at Phila- delphia, dated Versailles, September 25, 1777 : It is essential to remark that the lishcrios belong, and have always belonged, to the Crown of (ireat liritain, and that it was as siilijeets of the Crown the Americans enjnvcd them — consctiuenth-. finm tlie mo- ment when they shook off the English yoke and declared themselves indcpendiMit, the\- broke tlie comnumity which existed between them and the metropolis ; and \olinil:irily relintjrished all the atlvantages which they derived from that connnnnity, Just as tlu-y despoiled Eng- land of all the advantages she deri^■ed from llieir union with her. This is virtually the same argument held by Lord Bathurst in his correspondence with Air. John Ouincy Adams, and by the hjiglish Commissioners at Ghent, that " when the Americans by their separation from Great Britain became released from the duties, they became ex- cluded also from the privileges of Jhiiish subjects." It should therefore, argued the (..'ou.nt de X'ergenncs, be well estab- lished that from the moment when the colonies published their Dec- laration of Independence they have ce;.sed to ;itain. Wo hold thoni in tiulh nut as kin;j,s and i>iiosts claim thoir rii^ln.s and powor. by hvponisy and ( rail, but liom Cnd and our own swords. . . . Wo li.uo .dl tho iiv;hts .md liboilio> ol I'ai-lishnion in tho tishoiios in as full and amplo a niannor .is wo h.ul boloro tho Rovolution ; wo lnvi novrr foiloilotl. sunvndoiotl. alionato(4 or lost anv ono pni.'nilio of thoso ri;^hts anil libortios ; on tho oonti'.irv. we conipoUod tho r.ritish nation to arknowlodgc thorn in the most st)l- cnin maimor in tho Tio.ity ot I'oaoo ol '.y^_]- Mr. Adams then insisted with his sturdy common- sense that we had a stronger, clearer, and more perfect right than the Kritons or an>- other nation of luirojie or on the globe, for they were all indebted to us and our ancestors for all these fisheries. We discovered them, we explored them, we diseovereil and setUed the countries round about them at our own exitense, labor, risk, ar.d in- dustry, without assistance from Britain. We have pos- .sessed, occupied, exercised and practised them hom the beginning. ... If conquest can confer any right, our riglit is at least equal and common with Englishmen in any part of the world. liideed, it is inctunparably superior, for wc con- quered all the countries about the fisheries ; we conquered Cape l?reton, Nova Scotia, and dispossessed the l-'rench, both hostile and neutral. In conclusion, Mr. .Adams declared that the article in the Treaty of 1783 was still in force, and added, " I say it is an acknowledgment not only of an antecedent right, it is of eternal obligation.'" (,X. Adani<" Works, i,-,i 133. According to Mr. Rush the difference of t^pinion in re- gard to the fisheries had in 1818 risen to a considerable 38 THE FISHERIES DISPUTE. height, and the United States wholly dissented from the doctrine advanced by the l^ritish Commissioners, that the Treaty of 1783, not being- re-cnactcd or confirmed by the Treaty of Ghent, was annulled by the War of l8i2. They insisted that the treaty, after a seven years' contest, made two empires out of one ; that tiie entire instrument implied permanence — the use of the word ;7>/;/ in one place and liberty in another could make no difterence ; that a right of unlimited duration secured by so solenui a deed was as much a right as if stipulated by any other term. Liberty might have seemed a more appropriate term where an en- joyment was guaranteed to one party of a tlihig adjoining territory allotted to the other, but it took nothing from tlie permanency of the allotment. In point of principle the United States was pre-eminently entitled to all the fisheries, and the restriction at the close of the article s; niped per- manence upon it. The Treaty of 17S3 was altogether unlike common treaties. It contemplated a permanent di- vision of co-equal rights, not a transient grant of mere priv- ileges ; the acknowledgment of independence, the estab- lishment of boundaries, and the guarantee of the fisheries each rested upon the same illimitable basis. According to Mr. Rush neither side yielded its conviction to the rea- soning of the other, and this being exhausted, there was no resource left with nations disposed to peace but a compro- mise, and the result was the first article of the Treaty of 1818, under whicli have arisen the troubles which we have made such fruitless efforts to escape. The Fisheries Convkntio.\ of 1818. Whereas, DiffortMices liavc arisen rospeoling the liberty ■^laimcd by the United States for tlie inlia]jitants tliereof to take, dry, and cure fisii on certain coasts, bays, harbors, and creeks of His Hritannic M.aj- csty's dominions in Anierica, it is agreed between the high contracting parties that " Aktkt.F. I.— The inlialMtants of the United States sliall have lurever. in common with llie suhjects of His Britannic Majesty, the ^ THE FISHERIES DISPUTE. 39 1 liberty to take fish of every kind on tliat part of tlic southern coast of Newfoundland whicli extends from Cape Kay to the Kanieau Islands, on the western and southern coasts of Newfoundl.ind from the said Cape Ray to the (hiissnn Islands, on the shores of the Ma-dalen Isl- ands, and also on the coasts, bays, harbors, and creeks from Mount Joly on the soutlurn coast of Labrador, to and throui;h the straits of Belle Isle, and thence nijrihuardly indefinitely ;.lon;4 the coast, without prejudice, however, to any of the exclusive riyl is of the Hudson P-ay Company ; and that the American lishermcn shall have liljerty forever to dry and cure fish in any of the unsettled bay.. harl)ors, and creeks of the southern part of the coast of Newfoundland, almve described, and ot the coast of Labratlor ; but so soon as the same, or ar portion thereof, shall be settled, it shall not be lawful for the said fishermen to tiry or cure fish at such ]Kirtion so settled without previous a;^ree- ment for such purpose with the inhabitards, proprietors, or possessors of the ground. And the United Stales hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure lish on or within thre>. marine miles of aiiv nf tlie coasts, bays, creeks, or harljors of His Britannic Majesty's dominions in America not infhuletl within the abo\e mentioned limits: ruo- ViUKi). II(i\\kvi:k. that the American tlshermen shall be admitted to enter such ba\s or harbors for the purpose of shelter and of rejiairint^ damagi.'s tlun-eiu, of piirchasin;^ wood, and of obtainin;^ water, and for no other purpose whate\-e". But they sliall be under such reslrirtions as may be necessary to pie\eiU their takin;.y, drvin;^. oi' cuiiii;^ tish therein, or in any other manner whatever abiising the privile-e^ herebv reserved to them." The complications and mistiiulerslandings that arose under tliis convention threatened the peace of the two na- tions, and by the Treatj' of 1854, tnade by Mr. Marcy and Lord Elgin, the first article of which recited that the liberty it granted W:v:, "in addition to the liberty secured to the United !■■ rates .".shenncn by the convention of October 20, 1818," \\ J t'.niporarily recovered the enjo}'mcnt of some of our ancient nghts ."ocognized and continued b\' the Treaty of 1783 ; the coiisideraiion given on oin- part being a reci- procity of fishing liberty, u:m1 of trade in certain articles supposed to be greatly to the benefit of Canada. This treaty was terminated on our notice in 1S66, throwing tis back as Great l!ritain contended, and as we have admitted, "ivl 40 THE FISHERIES DISPUTE. on the Treaty of i8iS. Then came the Treaty of 1871 -iv- ing us the riylit to fish in-sho.e under certain limitations and this, after the rejection by tiie Senate on February -> 1^75, of another reciprocity treaty, was terminated by our act on July I. ,885, brino-ing again into ooeration the fish- eries article of 1 818. Last came the Treaty of Washinoton, with its mutual grants la regard to the fisheries and trade, and the memora- ble Article XXII., commencing, " Inasmuch as it is asserted by the government of Ilcr IJritannic Majesty that the privileges accorded to the citizens of the United States un- der Article XVIII. of this treaty, are of greater value Ihan those accorded by Articles XIX. and XXI. of this treaty to the subjects of Her Bntannic M.jesty, and this assertion is not admitted by the Governn^ v of the United States it .s further agreed," etc, and thci. t cd the provision for commissioners, not to ascertain whci _r there was in fact an inequality of advantage, and if so which side had re- ceived the largest advantage, and to what amount, and which should pay the other for the difference, but to dc- termuie the amount of any compensation which in their opinion ought to be paid by the Government of the United States to the government of Her liritannic Majesty in re- turn for the privileges accorded to the citizens of the United States under Article XVIiI. The advantage gained by Great Britain in this form of submission to the commissioners was emphasized by the joint instruction to the Count Ikust, by whom, as the Aus- trian Ambassador at London, the umpire was to be selected that the appointment of the Minister of Belgium at Wash- ington would be acceptable, not simply to the government of Great Britain, but to that of the United States Why it had become acceptable to President Grant and his Cabinet has never been explained, but to one suggestion of Mr Blaine, by way of explanation and apology, made in his in- teresting Sketch of the fisheries dispute from 181 8 to 1878 I may properly allude in passing. Mr. Blaine intimates that THE FISHERIES DISPUTE. 41 it was realized at Washington " that Count Von Beust, the Austrian Ambassador, might select some one even more objectionable than M. Delfosse, if that were possible."* From my official and personal relations at Vienna with the late Chancellor Von Beust I feel bound to say that this extraordinary and dishonoring suggestion does the greatest injustice to the character and fame of that illustrious states- man, whose eminent success, aided by the Count Andrassy at Pesth, in restoring the harmony of Austria and Hungary, and in introducing into the government of the dual empire changes in the direction of freedom, education, and national progress, was not a little influenced by his careful study of American principles and American institutions, and entitles his memory to the sincere regard of the American people. The suggestion that Count Beust, as the Austro-Iiunga- rian Ambassador in London, charged with the appoint- ment of a proper person as umpire in the Halifax award, would of his own motion have selected a diplomatic agent, to whom the United States had formally objectec', and whom Earl de Grey had declined to name as one supposed to be incap'-'.citated by the treaty arrangements between Belgium and Great Britain, is one entirely inconsistent, not only with the Count's character and with his friendship to Amer- ica, as shown in the Naturalization Treaty, but especially with his regard for diplomatic propriety and his own fame. So great a breach of faith toward a trustful government would have been condemned by every court in ICurope, and by honorable diplomatists throughout the world. The award by the Belgium minister of $5,500,000, in addition to the duties remitted by us estimated at $4,200,- 000, in the face of the unimpeachable evidence cited by Mr. Secretary ICvarts in his despatch of September 27, 1878, seems to have been regarded in England as a signal tri- umph for British and Canadian diplomacy. The prompt payment of that award was approved by the American people notwithstanding the rule laid down by Vattel ♦Twenty Years of Congress, II., 630. 42 THE FISHERIES DISPUTE. that " if the arbitrators by pronouncing a sentence evidently unjust and unreasonable should forfeit the character with which they are invested, their judgment would deserve no attention ; " but that singular award and the steps which led to it may help to explain American reluctance, should any be exhibited, to further arbitration on the fisheries question. The Effect of War on Treaties. Having referred to the facts which show the intention of the high contracting parties in 1783, that the article on the fisheries in the Treaty of Separation reciting their division between the two empires should not be temporary and that transient, but fundamental, permanent, and endurin-r, and the acceptance of that article by the British cabinet was a condition of the peace-facts long since established on the American side by the testimony of our own a-chives and now confirmed by the letters of the English negotiators gathered after a hundred years from the State Paper Office of London-it may be proper m ref.r to the simple rule of law, which should determine the question whether that ar- ticle could be abrogated, as the British commissioners con- tended, by the War of 18 12. That rule is thus stated in Field's International Code : Tki:atif.s Uxakkf-cted p.v War. ^yar docs not affect the compacts of a nation except when so pro- vided in such contracts ; and except also tliat executory stipulations ■t. a special compact between beUigerents, wliich bv their nature are upphcable only in time of peace, arc suspended during the war. Wharton says : Treaties stipulating for a permanent arrangement of territorial and otfwr national rights ■c.x^-.MWx^ most suspended during the wir and revived at peace, unless they are revived by the parties, or new repug- nant st.pt.lations are made (II. Wharton's International Lr ,v irL^t Chapter VI., Sec. 135). ^^'^^st, A large and looser doctrine was contended for in Society "/v. New Haven in the Supreme Court of the United States THE FISHERIES DISPUTE. 43 in 1823, and the Court was asked to recognize the doctrine urged at the bar, that treaties become extinguished ipso facto by a war between two governments. But the Court said, by Justice Washington : Whatever may be the Lititude of doctrine laid down by element- ary writers on liie law of nations, dealin;^' in general terms in relation to the subject, we are satisfied the doctrine contended for is not uni- versally true (VIII. Wharton, 494). In an English case arising under tlie Treaty of 1794, the principle was distinctly recognized that they were to deter- mine, by reasonable construction, tlic intention of the treaty (Sutton vs. Sutton, i R. and M., 663). The question was, whether American subjects who hold land in England were to be c. in iib nauirc. bul ;i siis/>t)isr of tin.' other ri|^lits not in contisl, whuli existed between tlie hellij;crent powers reciprocally, be- fore the war ; when \vc reason, therefore, that a war being ended, the public reciprocal rights and oblij^Mtions, not specially abrogated, but suspended, i-iiur!^<.\ and acquire their former vigor and activity, the reasoning of it is just ; is so, because it is consistent with the relations, and arises out of the nature of tilings. We need not urge the neces- sity of particular stipulations, to revive such obligations ; it is the very essence and necessary idea of ri.-conciliatio)i, implied of course, if not declared, in every definitive treaty of pacification, that the conimer- ci.il and friendly intercourse of the cmitracting powers is replaced in its former state. . . . Such is the force of those exalted principles of pub- lic law which, in these happier iu^es of human society, restore their proper empire over the minds of men to good sense and good faith, with a force superior to the passions or prejudices of nations long accustomed to be rivals ; and such I conceive to be the law of liurope in its present state, which, whenever these doctrines, founded in rea- son and humanity, shall cease to prev;ul, will fall back into all the glocjm of a barbarous condition of ignorance and despotism. The war between iMigland and 1'" ranee, which fv)llowed the revolu- tion, suspended tin-' commercial treaty of i6iS6, called the Treaty t)f Neutrality. The Treaty of I'cace, concluded alRyswick, 1697, takes no notice of it nominally, but revives it, by the general t[uality of a treaty, l)utting an end to the war by the strongest terms of a general coinpie- hension, restcnang the commerce of the two nations, reciiirocally, to the stale in which it existetl before the war. 1 have the honor to submit that the Treaty of 1686 may he insisted upon as a subsisting treaty, not only because it is revived, by a str(mg implication of words and facts, but for that it may be understood to subsist because it never was abrogated.* The exalted principles of ptiblic law declared in that masterly opinion of the Advocate-General in 1765, confirm- atory of the opinion of Attorney-General Ryder and So- licitor-General Murray in 1753, that the fisheries article in the French and l^nglish treaty of 1686, v.liile suspended by war, had been restored by tite peace, apply in still greater force to the fisheries article in the Anolo-Ainerican Treaty • Vol. II., pp. 344-355, of Opinions of Kmiuent Lawyers on Vari- ous PcMiUs of English Jurisprudence, chietly Concerning the Colonics, Fisheiies, and Commerce of (ueat Britain. i5y George Chalmers. London ■ Reed & Hunter, 1814. 46 THE FISHERIES DISPUTE. o ..S3, Which was not only a treaty of peace but of sepa- ration MUendcd to settle defumdy and permanently t^ie m uhat had before been held by them in common. The War of Ibi2 suspended the exercise of the rights and liber- ^n^^'^^'f H ';:'" '^'^'-"^ ^'^^^'^^^ ^^''^ -^-" ^'- -r was o no ce of the hsher.es clause of 1783 nominally, " revivcS J^y he general quality of a treaty putting an end to the va. a„ 1 ,,stor,ng the commerce of the two nations recip- oeal y to the state in which it existed before the war." U 1 e her or not the weighty opinion of Sir James Marriott vas known to the JJritish Connnissioners at Ghent or at London, ,t w.ll not be overlooked by Americans or by L .ghshmen .n considering the question of the fisheries inulci the mtereslmg circumstances of to-day. Thk Govkrxor-Genkral of Caxada. Jt may be regarded as a fortunate circumstance at this juncture that the Governor-General of Canada is a grand son oUhe great Jinglish Minister by whom our Revolution- a.> \V ar was happdy ended, on terms so fair and reasonable as fo, ever to entitle the me.nory of Shelburne to the highest honor .n both countries. His i.:..cellency is fandliar with he Instonc sketch by his brother. Lord Edmond Fit.uau- c .the conduct of the peace negotiations by that states^ n the story of whose connection therewith has been of .nal scrvce ,n correcting the errors into which American o 1 anccandSpam to deprive us of the boundaries a.rd lie fisheries ; to the secret mission of Rayneval to l^vdand o secure .Shelburne's adhesion to their scheme ; and to th .eat sery.ce rendered to the Republic by ]3enjamin Vaughan u. hastemng to Rowo„d almost simultaneously to coun eract the designs <,f Rayneval. and to a.sist in en gagmg or the American Con.nissioners the confidence of Lord bhelburne and a fair share of American ri^dits THE MSIIl'RIES DISPUTE. 47 I * Lord LansdiAvnc knows that at that time no peace was possible willidut tlie luU recognition of our rii^ht to the fi-hcrics. 1 lis Excellency without doubt values arii;ht the inestimable service rendered by Shelburne to r-nider the expediency of einbod}-ing their views on this point in tlie Retaliation Act, or in a separate act, so that the future negotiations for an amicable adjustment of the pending difficulties may not be hampered or thwarted by the pretence, Iieretofore made, that the rights claimed by our Ciovernment for i\mcrican fishermen are denied to them by the third article of the Treaty of 1818, which the British have tliemselves violated. Should this conclusion be approved by Congress, it would almost follow the preamble and enacting clause of the Act abrogating the treaties with l'"rance (July 7, 1798) siiould it declare that, inasmuch as the third arti^-Zie has been repeatedly violated on the part of the British Government, am 48 Tiir: KisiiKKiF.s nisi'UTi;. aiul llie ju^l cl.iiins of tlic I'liitcd States for reparation of the injuries so coimnitted have been refused, and their at- tempts tf) nc;4otiate an amicable settlement <>f the s.-me have failed, and under the anthorit}' of the British (iovernment a course of tn atinent is still pursued a;j;aiiist tin- t"l-^hl■rmen of the United States, infractintf the said article and hostile to the ri;4hts of a free and indepcntlent nation, it is enacted by Con.L;ress thai the Lhiited States arc of rii;ht frcetl and exonerated from tlie stipulations of the said article, and that the same shall not henceforth be regarded as legally ob- ligatory on the ( iovcriiment or citizens of the I'liitcd States. While Congress may approve the propriety and neces- sity of such an act. it may at the same time deem it pro[icr to postpone the taking effect of such an enactment, so long as a re.isonable hope may be entertained that (ireat l^ritain will \oluntaril\- do full and ami)le justice to our lisjicrmen ; and C'dUgicss may deem it wise to leave it to the Tresidcnt. as in the Rut. illation liill, to give it effect in his discretion. It is de^irable that nendencies on this con- tinent. ]\ecalling the prominent part so ably borne by you at (iene\a in the tribunal which, to tlie admiration of luirope, clo