CHAPTER V.

THE FISHERIES.

HISTORY OF THE QUESTION.

THE TREATY OF INDEPENDENCE was, I repeat, a vir tual partition of the British Empire in America between the Metropolis and the Thirteen United Col onies. It was not a treaty founded on military pos session: for the Colonies had no such possession save along the coast of the Atlantic Ocean, and Great Britain occupied several posts north and west of the Ohio and on the Great Lakes. The theory of the treaty was to recognize the Colonies as sovereign according to their political limits as fixed by charter and by the public law of England.

In conformity with this theory, the treaty stipu lates that the United States shall continue in the enjoyment of the coast fisheries, as follows:

"Article III. It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of ev ery kind on the Grand Bank, and on all the other banks of Newfoundland; also in the Gulf of St. Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish; and also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use [but not to dry or cure the same on that island]; and

also on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America; and that the American fishermen shail have liberty to dry and cure fish in a.y of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Isl ands, and Labrador, so long as the same shall remain unsettled; but so soon as the same or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at the said settlement, without a previous agreement for that purpose with the inhabitants, proprictors, or possessors of the ground."

We

Notwithstanding the absolute terms of this treaty in regard to the question of peace, there survived on both sides so much of irritation, and so many points of mutual relation remained uncertain, that the treaty was in some respects little more than a truce. had special cause to complain of the persistent occu pation of northwestern posts by Great Britain, and its effect on the Indians within our lines. On the other hand, to say nothing of minor matters, when the wars of the French Revolution commenced, and the French Republic undertook to use our ports as the base of naval operations against Great Britain, the latter Power took umbrage of course; and it was only the firm attachment of President Washington to peace, which prevented these difficulties from fatally em broiling the two countries, and which led to the conclusion of the Treaty of December 19, 1794, as the similar spirit of President Grant led to the conclusion of the Treaty of Washington.

During the next ten years, the United States labor ed to maintain their neutrality in the presence of the universal war by land and sea which raged between the great European Powers. Both France and Eu

gland gave to us good cause of rupture; we barely escaped war with France in 1798; we were forced into war with England in 1812; and in the course of all these events the hand of the Government was restrained, if not paralyzed, by the factious force of sympathies in the United States, on the one side for France and on the other for England. IIence, alike in the quasi war with the former, and the declared war with the latter, the results as to the United States were uncertain, imperfect, trivial even, compared with the great objects which might have been accomplish. ed by united counsels.

On the side of France, however, it must be admit ted that our disposition to avoid pushing matters to extremities contributed to gain for us the immense benefit of the acquisition of Louisiana.

Afterward, although the Berlin and Milan Decrees of France and the Orders in Council of Great Britain constituted each alike good cause of war with either, yet the United States held back at vast sacrifice, until continued assertion of the right to impress seamen on board of our merchant ships, and, indeed, to visit our ships-of-war, and other exaggerations of belligerent right, forced us into war with Great Britain.

The treaty by which that war was concluded is one of the most unsatisfactory in the aunals of the United States. It was absolutely silent in regard to all the subjects of controversy which had occasioned the war, Nothing is said of the belligerent encroach. ments of Great Britain on the neutral rights of the United States, nothing of maritime search, nothing of

the impressment of real or pretended British subjects on board ships of the United States. And it left room, by its silence, for Great Britain to raise question of our right to participate in the coast fisheries, which question, although dealt with from time to time in successive treaties, has more than once seriously endangered the peace of the two Governments.

Does war have the effect of annulling all existing treaties? A general answer to this question is given by one of the most authoritative of modern publicists [Calvo] as follows:

"If the treaty of peace modifies anterior treaties, or expressly declares the renewal of them, the dispositions of the treaty of peace are thereafter to constitute the law; but if no particular mention is made in this respect, the anterior treaties must necessarily continue to have full force and effect. In order that they should be deemed definitively abrogated, it would be requisite that they shall not only be suspended by the war but annulled in fact, as in the case of treaties of alliance of which the raison d'être ceases at the end of the war: it would be requisite, indeed, that their contents should be incompatible with the stipulations of the treaty of peace, which occurs, for. example, in what regards ancient treaties relative to the delimitation of frontiers between two States."

The Supreme Court of the United States lays down the law as follows:

"We think that treaties stipulating for permanent rights and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operations at the return of peace."

Such has been the received doctrine in the United

States, to the effect that war does not, as an absolute, universal rule, abrogate existing treaties, regardless of their tenor and particular contents; and it is the only doctrine compatible with reason, justice, common. sense, and the diplomatic history of Europe.

But the British Government, in the celebrated dispatch to Mr. Adams of October 30, 1815, signed by Lord Bathurst, and understood to be the composition of Mr. Canning, declared the position of Great Britain to be: "She knows no exception to the rule that all treaties are put an end to by a subsequent war be tween the same parties." This proposition, in its absoluteness of expression, if it is intended as an asser tion of any established practice of nations, or any rec ognized doctrine of the law of nations, is unfounded and unauthorized. Many treaties are made precisely for the case of war, and only become efficacious in virtue of the existence of war. The assertion of Lord Bathurst is altogether too broad, as Dr. Bluntschli demonstrates.

Nevertheless, acting on such extreme premises, Great Britain pretended that our rights of fishery had been abrogated by the war, and were not revived by peace; and that this effect was the true interpretation of the omission to mention the subject in the Treaty of Ghent.

The Commissioners of the United States who ne gotiated the Treaty of Ghent were men of unquestionable patriotism and of the highest character and intelligence: it would be out of place here to reopen the dispute as to certain special causes of the failure