It will be well to bear in mind (for the expression is of frequent occurrence) that the "common right to the fisheries" meant, in the intention of Congress (Ante, p. 10)—

the banks of Newfoundland, and the other fishing banks and seas of North America,

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and did not include the coasts or bays of British territory, nor the waters within 3 leagues of British shores. The phrase did not, of course, include any right upon the soil itself.

The instructions of Congress to the Commissioner to be appointed to negotiate a treaty of commerce with Great Britain were in accordance with the policy expressed in the resolutions to which attention has been called. So far as they related to the fisheries, they were as follows (App., p. 23):

2ly. In order that you may be the better able to act with propriety on this occasion, it is necessary for you to know that we have determined 1st That the common right of fishing shall in no case be given up. 2nd That it is essential to the welfare of all these United States, that the Inhabitants thereof at the expiration of the war should continue to enjoy the free and undisturbed exercise of their common right to fish on the Banks of Newfoundland, and the other fishing banks and seas of North America, preserving inviolate the Treaties between France and the said States. 3ly That application shall be made to his Most Christian Majesty to agree to some article or articles for the better securing to these States a share in the said fisheries. 4ly That if after a treaty of peace with Great Britain she shall molest the Citizens or Inhabitants of any of the United States in taking fish on the Banks and places hereinafter described, such molestation, being in our opinion a direct violation and breach of the peace, shall be a common cause of the said States, and the force of the Union be exerted to obtain redress for the parties injured. And 5ly That our faith be pledged to the several States, that without their unanimous consent no treaty of commerce shall be entered into, nor any trade or commerce whatever carried on with Great Britain, without the explicit stipulation herein after mentioned. You are therefore not to consent to any Treaty of Commerce with Great Britain. without an explicit stipulation on her part not to molest or disturb the Inhabitants of the United States of America in taking fish on the Banks of Newfoundland and other fisheries in the American Seas any where, excepting within the distance of three leagues of the Shores of the Territory remaining to Great Britain at the close of the war, if a nearer distance cannot be obtained by negotiation-and in the negotiation you are to exert your most strenuous endeavours to obtain a nearer distance to the Gulf of St. Lawrence, and particularly along the shores of Nova Scotia. As to which latter we are desirous, that even the Shores may be occasionally used for the purpose of carrying on the Fisheries by the Inhabitants of these States.

Similarly, in the instructions to the Minister Plenipotentiary of the United States at the Court of France he was directed to endeavour to obtain agreement to the following (App., p. 24) :—

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That if, after the conclusion of the treaty or treaties which shall terminate the present war, Great Britain shall molest or dis92909°-S. Doc. 870, 61-3, vol 7————2

turb the subjects or Inhabitants of the said United States in taking fish on the Banks, seas and places formerly used and frequented by them, so as not to encroach on the territorial rights which may remain to her after the termination of the present war as aforesaid, and war should thereupon break out between the said United States and Great Britain; or if Great Britain shall molest or disturb the subjects and Inhabitants of France in taking Fish on the Banks, Seas and places formerly used and frequented by them, so as not to encroach on the territorial rights of Great Britain as aforesaid, and war should thereupon break out between France and Great Britain. In either of those cases of war as aforesaid His Most Christian Majesty and the said United States shall make it a common cause, and aid each other mutually with their good offices their counsel and their forces, according to the exigence of conjunctures as becomes good and faithful allies.

Those proceedings of Congress were in 1779. On the 8th January, 1782 (the very year in which the preliminary Articles of Peace were signed) a committee of Congress, in dealing with a petition of the State of Massachusetts, distinctly declared that the American claim (App., p. 29)

does not extend to any parts of the sea lying within three leagues of the shores held by Great Britain or any other nation.

Part of the report was as follows (App., p. 28) :—

Another claim is the common right of the United States to take fish in the North American seas, and particularly on the banks of Newfoundland. With respect to this object, the said Ministers are instructed to consider and contend for it, as described in the instructions relative to a treaty of commerce, given to John Adams on the twenty-ninth of September, 1779, as equally desired and expected by Congress with any of the other claims not made ultimate in the instructions given to the Ministers plenipotentiary for negotiating a peace on the day of last, and are therein referred to as objects of the desires and expectations of Congress. They are also instructed to observe to His Most Christian Majesty with respect to this claim, that it does not extend to any parts of the sea lying within three leagues of the shores held by Great Britain or any other nation. That under this limitation it is conceived by Congress, a common right of taking fish cannot be denied to them without a manifest violation of the freedom of the seas, as established by the law of nations, and the dictates of reason; according to both which the use of the sea, except such parts thereof as lie in the vicinity of the shore, and are deemed appurtenant thereto, is common to all nations, those only excepted who have either by positive convention, or by long and silent acquiescence under exclusion, renounced that common right.

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SUMMARY.

These quotations make the following propositions indisputable:1. No claim at all was made by the United States to any rights upon British soil. In the resolutions declaratory of its demands,

Congress said no word upon that subject. And in its instructions to its commissioners it merely expressed a limited desire as to the Nova Scotia shores only (ante, p. 12):

we are desirous, that even the Shores [of Nova Scotia] may be occasionally used for the purpose of carrying on the Fisheries by the Inhabitants of these States.

2. While in the resolution of the Committee of the Whole a claim was made to "coasts, bays, and banks," Congress, after debate, struck out the word "bays" and the word "coasts," and always, afterwards, the claim was limited to "banks and seas," express renunciation being made of any claim to the fishery within 3 leagues of British shores.

3. The assertion of fishing rights in one set of instructions was confined to (ante, p. 12)—

the Banks of Newfoundland and other fisheries in the American Seas any where, excepting within the distance of three leagues of the Shores of the Territory remaining to Great Britain at the close of the war, if a nearer distance cannot be obtained by negotiationand in the other set was confined to (ante, p. 13)

the Banks, seas and places formerly used and frequented by them, so as not to encroach on the territorial rights which may remain to her after the termination of the present war as aforesaid.

4. In 1782, a Committee of Congress expressly said with respect to the claim of (ante, p. 13)

the common right of the United States to take fish in the North American seas, ... that it does not extend to any parts of the sea lying within three leagues of the shores held by Great Britain or any

other nation.

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5. Nowhere is there any suggestion of, or proposal for, a division of the coast-fisheries as being assets held by joint-owners. In the resolution of the 24th March the right of fishing was demanded for the United States (ante, p. 9)

as fully as they enjoyed the same when subject to the King of Great Britain,

On the 3rd of June, however, Congress voted to strike out of a proposed resolution the equivalent words, namely (App., p. 16) :— "as fully and freely as they did or might have done during their political connection."

And no such words ever again re-appeared.

6. The expression "the common right of fishing" was applied to the ocean-fisheries. It did not apply to the coast-fisheries.

7. The suggestion on p. 12 of the United States Case, that there would have been no treaty of peace at all had not the British Commissioners agreed to the fishery demands of the American Commissioners, is contradicted by the specific instructions of Congress that

the guarantee of the fisheries was not to be made " an ultimatum on the present occasion."

These conclusions make it abundantly clear that no claim as of right to the coast fisheries was put forward by Congress, and that no demand was at any time made for a division of those fisheries on the ground that they were the joint assets of the two nations.

NEGOTIATIONS IN 1782.

The same observation holds good of the negotiations in 1782. The material papers have been printed in the appendix to this CounterCase, and they show that from first to last no suggestion was made of any claim based on the theory of joint ownership.

The question as to the right of fishing on the banks and in the high seas did not provoke serious discussion, for Great Britain acquiesced in that part of the demand of the United States.

On the 19th November, 1782, Mr. Townshend sent to Mr. Strachey a draft of a proposed treaty. The clause relating to fisheries in that draft was as follows (App., p. 96):

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Art. 3d. The citizens of the United States shall have the liberty of taking fish of every kind on all the banks of Newfoundland, and also in the Gulf of St. Lawrence, and also to dry and cure their fish on the shores of the Isle of Sables and on the shores of any of the unsettled bays, harbours, and creeks of the Magdalen Islands in the Gulf of St. Lawrence, so long as such bays, harbours and creeks shall continue and remain unsettled. On condition that the citizens of the said United States do not exercise the said fishery but at the distance of Three leagues from all the coasts belonging to Great Britain, as well those of the continent, as those of the islands situated in the Gulf of St. Lawrence. And as to what relates to the fishery on the coasts of the island of Cape Breton out of the said gulf, the citizens of the said United States shall not be permitted to exercise the said fishery, but at the distance of fifteen leagues from the coasts of the island of Cape Breton.

On the 25th November, this draft was discussed with the American negotiators, and Mr. Adams has recorded in detail, in his journal (App., p. 101), the reasons by which he supported his plea for some modification of the limitations proposed in it. It is significant that he did not advance any claim to the coast fisheries on the ground that they were in part the property of the United States. That would have been a reason of force had he been able to sustain it, but there is no reference to it of any kind whatever. The grounds on which he urged the concession were quite different. Inter alia, they were that Great Britain profited by the purchase of her manufactures by American fishermen, and that American fishermen could not be effectually prevented from fishing in all the waters prohibited in the draft, and that there would be constant disputes if any attempt were

made to do so. The same arguments (App., p. 102) were repeated the next day, and again no suggestion was made of any claim as of right. It is impossible to suppose that Mr. Adams would not have put forward a claim on behalf of the United States as joint owners on these occasions if he had regarded any such claim as sustainable.

From an entry in Mr. Adams' journal (28th November) (App., p. 103) it appears that he drafted an article by which he distinguished between the "right" to take fish (both on the high seas and on the shores) and the "liberty " to dry and cure fish on the land. But on the following day, he presented to the British negotiators a draft in which he distinguished between the "right" to take fish on the high seas and the "liberty" to take fish on the coasts, and to dry and cure fish on the land.

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The British Commissioners called attention to the distinction thus suggested by Mr. Adams, and proposed that the word "liberty" should be applied to the privileges both on the water and on the land. Mr. Adams thereupon rose up and made a vehement protest, as is recorded in his diary, against the suggestion that the United States enjoyed the fishing on the banks of Newfoundland by any other title than that of right, and the word "right" was retained in the case of the high-seas fishery. The application of the word "liberty" to the coast fisheries was left as Mr. Adams proposed. His draft clause, without amendment, became a part of the treaty.

The incident is of importance, since it shows that the difference between the two phrases was intentional. It shows further, that the American negotiators recognized that fishing on the high seas was in a different position from that in the coast waters, and that they did not claim the coast fishery as of right. It is absolutely inconsistent with the suggestion that the American negotiators regarded the United States as co-owners of the coast fisheries.

ORIGIN OF THE DOCTRINE OF PARTITION.

The papers printed in the appendix show that the idea, that the treaty of 1783 was in the nature of a partition of joint property between two co-owners, was first conceived by John Quincy Adams (App., p. 138) at a meeting of the American Commissioners at Ghent on the 1st day of November, 1814, and that it had not occurred to his colleagues as a possible line of argument before that date.

The Commissioners, at their meeting on that day, were unable to agree on a form of draft in respect of the navigation of the Mississippi and the fisheries. One party was in favour of sacrificing the fisheries if the British representatives could be induced by that surrender to give up their claim to the navigation of the Mississippi. The other party desired the retention of the fisheries at all costs. Mr. Gallatin proposed a draft providing for the renewal of both rights, but his