"That New England, and especially Massachusetts, had done more in defence of them than all the rest of the British Empire. That the various projected expeditions to Canada, in which they were defeated by British negligence, the conquest of Louisburg, in 1745, and the subsequent conquest of Nova Scotia, in which New England had expended more blood and treasure than all the rest of the British Empire, were principally effected with a special view to the security and protection of the fisheries.

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That the inhabitants of the United States had as clear a right to every branch of those fisheries, and to cure fish on land, as the inhabitants of Canada or Nova Scotia; that the citizens of Boston, New York, or Philadelphia, had as clear a right to those fisheries, as the citizens of London, Liverpool, Bristol, Glasgow, or Dublin.

and further:

"We considered that treaty as a division of the empire. Our independence, our rights to territory and to the fisheries, as practised before the Revolution were no more a grant from Britain to us than the treaty was a grant from us of Canada, Nova Scotia, England, Scotland, and Ireland to the Britons. The treaty was nothing more than mutual acknowledgment of antecedent rights."

The suggestion thus put forward is, apparently, that the treaty of 1818, in regard to the fisheries, is a continuance of the treaty of 1783; that the latter treaty was in effect a partition of the British North American fisheries between two joint owners; and that it follows that Great Britain cannot have any right to legislate in respect of the fishery carried on by American citizens on the shores or in the waters to which they have liberty of access under the treaty of 1818.

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His Majesty's Government demurs, in passing, to the reasoning by which this contention is supported. The United States do not claim sovereignty over these territories or over these waters; and have no right of legislation in respect of them. The sovereignty remains in Great Britain, and, therefore, in the absence of any exemption in the treaty, American fishermen are necessarily subject to British legislation. Moreover, if their claim to fish be based on the ground that it is a continuance of the right which they enjoyed as British subjects, and that appears to be the American contention, then it is clear that they take the right subject to British control. They cannot claim to have the right freed from the obligations under which it was previously enjoyed, for that would be a different and a greater right.

TREATY WAS NOT A PARTITION.

But the point does not merit discussion, because the assumption on which the whole argument is based is altogether without warrant. The treaty of 1783 was not and could not have been a partition of the British North American fisheries. The thirteen American Colonies took up arms, and in 1776 declared themselves to be

independent States absolved from all allegiance to the British Crown. From that time onwards they claimed to exercise uncontrolled sovereignty over the territories within their respective jurisdictions as then constituted, but, by the very repudiation of their allegiance, the inhabitants of those States necessarily surrendered any rights they had previously enjoyed as British subjects in other parts of the Empire. From 1776 onward, the thirteen Colonies claimed to be free and independent States, and received recognition as such from other countries. And recognition of their independence by Great Britain was insisted on as a preliminary to the negotiation for the termination of the war.

The remaining British Colonies in North America (and they included the whole of the British territory outside the thirteen States) did not at any time join in the rebellion; they adhered to Great Britain, and never passed from British possession. By the treaty of 1783, the King of England formally acknowledged the relinquishment of sovereignty over the thirteen Colonies; but no question was ever raised, or could ever have been raised, as to the sovereignty over the other Colonies, for that was not affected by the war.

If the treaty of 1783, so far as it related to the fisheries, was a partition of common property between joint owners, the question would at once arise, Who were these joint owners? They could not have been the Crown of Great Britain on the one hand, and the thirteen Colonies on the other, for the Colonies never had any rights of ownership in respect of these territorial fisheries. And it cannot be suggested that the owners were the individual citizens of the thirteen Colonies, and the individual subjects of the British Empire.

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The true view, it is submitted, is that there could have been at the date of the treaty no such joint ownership as is suggested by the United States, and that the sole and entire ownership of the fisheries was vested in the British Crown.

The negotiations which preceded the articles of 1782 will be found fully recorded in the papers printed in the appendix to this CounterCase, and the discussions are set out there in detail, but there is no single suggestion throughout these negotiations of any such claim to British territory or to British territorial waters as is now put forward. On the contrary, the instructions sent by Congress in 1779, and the contentions of the United States Commissioners at that time, are, as will presently be shown, altogether opposed to any such claim.

Moreover, later documents in the appendix go even further than this; they establish beyond doubt that this theory of partition was put forward for the first time at Ghent on the 1st November, 1814, no less than thirty-two years after the date of the preliminary articles of independence.

His Majesty's Government further contend that the whole of the United States Case as to the treaty of 1783 is irrelevant. Whatever were the fishing liberties conceded in 1783, they were terminated by Great Britain on the occasion of the war in 1812, and the concessions of 1818 were a fresh grant and not a renewal of those of 1783.

PROCEEDINGS IN CONGRESS. 1779-1782.

Reviewing the proceedings of the United States Congress prior to the negotiations of 1782, it will be observed that in the first instance a committee reported (23rd February, 1779) that one of the ultimata to be insisted on should be (App., p. 10)—

That a right of fishing and curing fish on the banks and coasts of the Island of Newfoundland, equally with the subjects of France and Great Britain, be reserved, acknowledged, and ratified to the subjects of the United States.

This very limited demand was, when Congress resolved itself into Committee of the Whole, expanded to the following (App., p. 12):

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That a common right in these States to fish on the coasts, bays and banks of Nova Scotia, banks of Newfoundland, and gulf of St. Lawrence, coast of Labrador and straits of Belleisle, be acknowledged, and in case of refusal, that the war be continued, unless the circumstances of our Allies shall be such as to render them utterly unable to assist in the prosecution of the war; in which case, as ample privileges in the fishery be insisted on as can possibly be obtained:

That in case Great Britain should not be prevailed upon either to cede or declare Nova Scotia independent, the privilege of curing fish on the shores and in the harbours of Nova Scotia be required.

In Congress itself the demand was (22nd March) stated as follows (App., p. 14):—

That an acknowledgment be made by Great Britain of a common right in these states to fish on the coasts, bays and banks of Nova Scotia, the banks of Newfoundland, and gulf of St. Lawrence, the coasts of Labrador and straits of Belleisle. Provided always, that the allies of these states shall be in circumstances to support them in carrying on the war for such acknowledgment; but that in no case, by any treaty of peace, the common right of fishing as above described be given up.

For this resolution, Congress, two days afterwards (24th March), substituted the following (App., p. 14):

That the right of fishing on the coasts and banks of North America be reserved to the United States as fully as they enjoyed the same when subject to the King of Great Britain, excepting always what shall have been excepted by the treaty of Paris between France and the United States the whole to be explained by the treaties of Utrecht and Paris with Great Britain, and of Paris with the United States of North America.

The treaty last referred to, was as follows (App., p. 3) :—

Article X. The United States, their citizens and inhabitants, shall never disturb the subjects of the most Christian King in the enjoyment and exercise of the right of fishing on the banks of Newfoundland, nor in the indefinite and exclusive right which belongs to them on that part of the coast of that island which is designed by the treaty of Utrecht; nor in the rights relative to all and each of the isles which belong to His Most Christian Majesty; the whole conformable to the true sense of the treaties of Utrecht and Paris.

Instead, therefore, of claiming, as originally suggested, a share in such fisheries as France was interested in, Congress now demanded a common right with Great Britain-" as fully as they enjoyed the same when subject to the King of Great Britain "—in everything, except what had already been assigned to France.

It is specially noteworthy that while the resolution of the 22nd March referred to "coasts, bays, and banks," the resolution of the 24th dropped the word "bays," and that from all subsequent resolutions the word "coasts" also was omitted the expression afterwards used being "banks and seas." From the 24th March on, nothing is heard of any claim to fish in British bays, or upon British coasts. Upon the contrary, it will be seen that Congress expressly declared that the United States made no such claim.

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Previous resolutions having been rescinded, renewed consideration of the subject was initiated by Mr. Gerry's resolutions of the 19th June, 1779, which were as follows (App., p. 16) :—

1. That it is essential to the welfare of 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.

2. That an explanatory article be prepared and sent to our minister plenipotentiary at the court of Versailles, to be by him presented to his most Christian Majesty, whereby the said common right to the fisheries shall be more explicitly guaranteed to the inhabitants of these states than it already is by the treaties aforesaid.

3. That in the treaty of peace with Great Britain a stipulation be made, on their part, not to disturb the inhabitants of these states in the free exercise of their common right to the fisheries aforesaid; and that a reciprocal engagement be made on the part of the United States.

4. That the faith of Congress be pledged to the several states, that, without their unanimous consent, no treaty of commerce shall be formed with Great Britain previous to such stipulation.

5. That if the explanatory article should not be ratified by his most Christian Majesty, nor the stipulation aforesaid be adopted by Great. Britain, the Minister conducting this business shall give notice thereof to Congress, and not sign any treaty of peace until their pleasure be known.

On the 24th June, the first of these resolutions was adopted by Congress. Various amendments were proposed, but no one suggested the expansion of the words "fishing banks and seas" so as to include either coasts or bays. (App., p. 17.)

On the 1st July, the second of Mr. Gerry's resolutions was adopted. (App., p. 18.)

Instead of Mr. Gerry's fourth resolution, Congress, com11 mencing a series of disclaimers of any right to British coastfisheries, adopted (22nd July) the following resolution (App.,

p. 18):

That the faith of Congress be pledged to the several states, that without their unanimous consent, no treaty of commerce shall be entered into, or any trade or commerce whatever carried on 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 anywhere, excepting within the distance of three leagues of the shores of the territories remaining to Great Britain at the close of the war, if a nearer distance cannot be obtained by negotiation.

As an addition to Mr. Gerry's resolutions, Congress adopted (29th July) the following (App., p. 19):

Resolved, 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 described in the resolution passed the 22d day of July, instant, such molestation (being in the opinion of Congress 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.

Mr. Gerry's third and fifth resolutions were not agreed to.

It will be observed that the final demand of Congress is limited. to fishing on the banks and seas and that the coast fisheries are excluded. Indeed, the proposal to claim a right of fishing on British coasts and British bays was expressly rejected after full discussion.

Having adopted the foregoing resolutions, Congress proceeded to the consideration of "instructions to the Minister to be appointed for negotiating a peace." Among those instructions was the following (App., p. 23) :—

Although it is of the utmost importance to the peace and Commerce of the United States that Canada and Nova Scotia should be ceded, and more particularly that their equal common right to the Fisheries should be guaranteed to them, yet a desire of terminating the war hath induced us not to make the acquisition of these objects an ultimatum on the present occasion.