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my reasons for considering our fishing liberties within the British jurisdiction, as so acknowledged by Great Britain, that we could never forfeit nor she exclude us from them but by conquest or a new compact.
If you will attentively read the third article of the preliminaries of 30 November, 1782, which is in the same words as the third article of the definitive treaty of 1783, you will see that there is no distinctive mark of places within or without the exclusive jurisdiction of Great Britain. There is nothing said of exclusive jurisdiction. It agrees
That the people of the United States shall continue to enjoy unmolested the right to take fish of every 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 shall have liberty to dry and cure fish in any of the UNSETTLED bays, harbors and creeks of Nova Scotia, Magdalen Islands 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 such settlement without a previous agreement for that purpose with the inhabitants, proprietors or possessors of the ground.
Now observe that the whole of the fishing rights and liberties thus described in this article were at the time of our Declaration of Independence within the exclusive jurisdiction of Great Britain for all the purposes of the fisheries. The
Grand Bank was, for this purpose, just as much British property as the desert rocks of Nova Scotia, Magdalen Islands, and Labrador. It had been so recognized by France in the treaties of Utrecht and of Paris in 1763, and by Spain in the same treaties. Spain in the latter treaty had formally renounced all pretensions of a right to fish there, and no other nation had ever pretended to the right, not even those pre-eminent fishermen the Dutch. Where do you mean to draw the line of your argument? What part of the article do you mean to contend was within and what part without the exclusive British jurisdiction? What part of it was and what part was not according to your view abrogated by the war of 1812?
If you can draw the line, at least the British plenipotentiaries at Ghent, when they notified us that Great Britain did not intend to grant again the right to fish within exclusive British jurisdiction, took special care not to draw it. They said they did not mean to deny us the right of fishing in the open seas as all other nations might; and what, think you, that would have meant if we had agreed that the treaty of 1783 was abrogated by the war? Why, it would have meant the whole fishery in the South Seas. If we had surrendered the liberty of the third article of the treaty, tell me what we should have left ourselves to say in defence of the right recognized by the same article. That we claimed it as an independent nation? What? With the treaties of Utrecht and of Paris before us; with Louis the 14th submitting to an exclusion of thirty leagues from the Isle of Sable; with Spain renouncing all pretension to the right of fishing even upon the Grand Bank? Is it with Great Britain that we could have maintained it as a common right of all nations, after admitting that our peculiar right, as recognized by herself in the treaty of 1783, was abrogated by the war? She
would have told us that that question had been settled centuries ago. That no part of the Newfoundland fisheries was common to all nations. She would have cited in proof of this not only her own statesmen and jurists; not only the treaties of Utrecht and Paris; but the lawyers and historians of France - Valin, who with reference to this very fishery alleges soundings as the limit of exclusive jurisdiction for a fishery (Commentaire sur l'ordonnance de la Marine, Vol. II, pp. 668 and 779) and Raynal, who, while asserting that the fishery on the Grand Bank by natural right ought to have been common to all mankind, admits that it had been appropriated exclusively to France and Great Britain. To all this what could we have replied? That we would fight for it? Then why not fight for the whole? And why surrender the very strongest of our title deeds, ancient possession and explicit acknowledgment?
And what difference was there in the nature of the thing between the exclusive jurisdiction over a waste of waters on the Grand Bank, and over a wilderness of rocks on the desolate coasts of Labrador? Our liberty was to take, dry, and cure fish in unsettled bays, harbors, and creeks. It was to have the transient occasional use of rocks and sand banks for the only purpose to which they could be applied. The huntsman of the ocean pursued his prey into these bays, and harbors, and creeks, and there they could no longer escape him. But he was yet as far from the habitations of men as he had been upon the Grand Bank. It was not a populous vicinage, where laws, and institutions, and magistracies existed, with which the intrusion of foreigners must be forbidden to preserve unsullied their dignity and their authority unimpaired. The jurisdiction was but a word. There was nothing for territorial jurisdiction to operate upon- no inhabitants, no government, nothing but fisher
men and fish. The moment a settlement took place the use of the shores was to cease, unless by agreement with the inhabitants. What mystical sanctity then was there in these bays, creeks, and harbors, or on these barren rocks and desert shores, which could make them liable to the narrow limits and subject to the common interdictions of a populous settlement? Why should they be secluded from the use of American fishermen more than the open seas? Why made more inaccessible to the only useful purposes that they could subserve than the billows of the Grand Bank? They had none of the attributes of exclusive property but for the purposes of fishery, and the Grand Bank had the same. If then the treaty of 1783 was abrogated by the War of 1812 as to the liberties specified in the third article, it was equally abrogated for the rights. If, as Mr. Russell contends, we were after signing the peace of Ghent bereft of all fair claims to the one, we were equally stript of all just pretension to the other. And this seems to be your opinion, since you consider the whole treaty of 1783 as having been abrogated by the war.
Let us admit for the sake of argument that it was. You do not understand that the rights which Great Britain acknowledged by that treaty as belonging to us were abrogated with it. Her acknowledgment of our independence was not abrogated. I speak not of our independence as maintained and declared by ourselves, but of her acknowledgment of it. She could not revoke that. Whatever we may have been to ourselves and to others, she at least had considered us as her subjects, and it was only by virtue of her own acknowledgment in that treaty that she was bound to consider us as an independent nation. She had waged a war of seven years against us as rebels after our Declaration of Independence. If the treaty of 1783 was abrogated by the War of 1812, why
could she not again claim our allegiance and treat us as rebels? If you insist that our independence rested even as to Great Britain exclusively upon our own declaration, what do you make of the boundary line which existed and could exist only by the treaty? Why could not the British plenipotentiaries have told us that their government would not grant us without an equivalent the same boundary as they had in 1782? If then our independence and our boundary, which as to the obligation of Great Britain to recognize them existed only by the treaties of 1782 and 1783, were not impaired by the War of 1812, upon what principles could she revoke either the rights or the liberties in the fisheries which she had in like manner acknowledged as belonging to us by the third article of each of these treaties? They were all acknowledgments of pre-existing possessions, and the liberties were no more revocable at the will of Great Britain nor more forfeitable by mere war than the rights. They were recoverable for her only by conquest, and that could be consummated only by our renunciation expressed in the treaty of peace, or implied by our assent to her insidious assumption that it had been effected by the war alone.
This argument is susceptible of much more development, with which I will not now trouble you; but as I mean upon this question to make a conquest of you I must call in auxiliaries and they shall be British statesmen. You have furnished me with one yourself in Lord Loughborough. If you have access to Hansard's Parliamentary History, look into the debate in the House of Lords upon the peace of Amiens. See what Lord Auckland and the Chancellor say on the ministerial, and Lord Carnarvon on the opposite side of the House-pages 704-5-6, 714-5 and 727.1 If all this is not sufficient to convert you to repentance, I must turn you 1 Duplicate Letters, 195.