“Precisely of the same nature were the rights and liberties in the fisheries to which I now refer. They were in no respect grants from the King of Great Britain to the United States; but the acknowledgment of them, as rights and liberties enjoyed before the separation of the two countries, which it was mutually agreed should continue to be enjoyed under the new relations which were to subsist between them, constituted the essence of the article concerning the fisheries. The very peculiarity of the stipulation is an evidence that it was not, on either side, understood or intended as a grant from one sovereign state to another. Had it been so understood, neither could the United States have claimed, nor would Great Britain have granted gratuitously, any such concession. There was nothing either in the state of things or in the disposition of the parties which could have led to such a stipulation, as on the ground of a grant, without an equivalent by Great Britain.”
Lord Bathurst’s letter of October 30, 1815, to Mr. Adams, contains a full exposition of the doctrine maintained by Great Britain. It is worthy of perusal in full, but, as its great length precludes its insertion on the present occasion, the passages have been selected which bear most closely on the question.
“The Minister of the United States appears, by his letter, to be well aware that Great Britain has always considered the liberty formerly enjoyed by the United States, of fishing within British limits, and using British territories, as derived from the third article of the Treaty of 1783, and from that alone; and that the claim of an independent state to occupy and use, at its discretion, any portion of the territory of another, without compensation or corresponding indulgence, cannot rest on any other foundation than conventional stipulation. It is unnecessary to enquire into the motives which might have originally influenced Great Britain in conceding such liberties to the United States; or whether other articles of the treaty wherein these liberties are specified, did, or did not, in fact afford an equivalent for them; because all stipulations profess to be founded on equivalent advantages and mutual convenience. If the United States derived from that treaty privileges from which other independent nations, not admitted by treaty, were excluded, the duration of the privileges must depend on the duration of the instrument by which they were granted; and, if the war abrogated the treaty, it determined the privileges. It has been urged, indeed, on the part of the United States, that the treaty of 1783 was of a peculiar character; and that, because it contained a recognition of American independence, it could not be abrogated by a subsequent war between the parties. To a position of this novel nature, Great Britain cannot accede. She knows of no exception to the rule, that all treaties are put an end to by a subsequent war between the same parties; she cannot, therefore, consent to give to her diplomatic relations with one state, a different degree of permanency from that on which her connection with all other states depends. Nor can she consider any one state at liberty to assign to a treaty made with her, such a peculiarity of character as shall make it, as to duration, an exception to all other treaties, in order to found, on a peculiarity thus assumed, an irrevocable title to indulgences, which have all the features of temporary concessions.”
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“It is by no means unusual for treaties containing recognitions and acknowledgments of title, in the nature of perpetual obligation, to contain, likewise, grants of privileges liable to revocation. The Treaty of 1783, like many others, contained provisions of different characters, some in their own nature irrevocable, and others of a temporary nature. If it be thence inferred, that, because some advantages specified in a treaty could not be put an end to by the war, therefore all the other advantages were intended to be equally permanent, it must first be shown that the advantages themselves are of the same, or, at least, of a similar character: for the character of one advantage recognised or conceded by treaty, can have no connection with the character of another, though conceded by the same instrument, unless it arises out of a strict and necessary connection between the advantages themselves. But what necessary connection can there be between a right to independence, and a liberty to fish within British jurisdiction, or to use British territory? Liberties within British limits are as capable of being exercised by a dependent, as an independent state, and cannot therefore be the necessary consequences of independence.
“The independence of a state is that which cannot be correctly said to be granted by a treaty but to be acknowledged by one. In the Treaty of 1783, the independence of the United States was certainly acknowledged; but it had been before acknowledged, not merely by the consent to make the treaty, but by the previous consent to enter into the provisional articles executed November, 1782. The independence might have been acknowledged, without either the treaty or the provisional articles; but by whatever mode acknowledged the acknowledgment is, in its own nature, irrevocable. A power of revoking, or even modifying it, would be destructive of the thing itself; and, therefore, all such power is necessarily renounced, when the acknowledgment is made. The war could not put an end to it, for the reason justly assigned by the American Minister, because a nation cannot forfeit its sovereignty by the act of exercising it; and for the further reason that Great Britain, when she declared war on her part against the United States, gave them by that very act a new recognition of their independence.
“The nature of the liberty to fish within British limits, or to use British territory, is essentially different from the right to independence, in all that may reasonably be supposed to regard its intended duration. The grant of this liberty has all the aspect of a policy temporary and experimental, depending upon the use that might be made of it, on the condition of the islands and places where it was to be exercised, and the more general conveniences or inconveniences, in a military, naval, or commercial point of view, resulting from the access of an independent nation to such islands and places. When, therefore, Great Britain, admitting the independence of the United States, denies their rights to the liberties for which they now contend, it is not that she selects from the treaty articles or parts of articles, and says, at her own will, This stipulation is liable to forfeiture by war, and that is irrevocable; but the principle of her reasoning is, that such distinctions arise out of the provisions themselves, and are founded on the very nature of the grants. But the rights acknowledged by the treaty of 1783 are not only distinguishable from the liberties conceded by the same treaty in the foundation upon which they stand, but they are carefully distinguished in the treaty of 1783 itself.
“The undersigned begs to call the attention of the American minister to the wording of the 1st and 2nd articles, to which he has often referred for the foundation of his arguments. In the 1st article, Great Britain acknowledges an independence already expressly recognised by other powers of Europe, and by herself, in her consent to enter into provisional articles, of Nov. 1782. In the 3rd article Great Britain acknowledges the right of the United States to take fish on the banks of Newfoundland, and other places, from which Great Britain had no right to exclude any independent nation. But they are to have the liberty to take fish on the coasts of his Majesty’s dominions in America, and liberty to cure and dry them in certain unsettled places within his Majesty’s territory. If these liberties, thus granted, were to be as perpetual and indefeasible as the rights previously recognized, it is difficult to conceive that the plenipotentiaries of the United States would have admitted a variation of language so adapted to produce a different impression, and above all, that they should have admitted so strange a restriction of a perpetual and indefeasible right, as that with which the article concludes, which leaves a right, so practical and so beneficial as this is admitted to be, dependent on the will of British subjects, in their character of inhabitants, proprietors, or possessors of the soil, to prohibit its exercise altogether.
“It is clearly obvious that the word right is, throughout the treaty, used as applicable to what the United States were to enjoy in virtue of a recognized independence, and the word liberty to what they were to enjoy, as concessions strictly dependent on the treaty itself.”
Mr. Adams, in his reply to Viscount Castlereagh, of Jan. 22, 1816, having explicitly “disavowed every pretence of claiming for the diplomatic relations between the United States and Great Britain a degree of permanency different from that of the same relations between either of the parties and all other powers,” goes on to state, “The undersigned believes that there are many exceptions to the rule by which treaties between nations are mutually considered as terminated by the intervention of war; that these exceptions extend to the engagements contracted, with the understanding that they are to operate equally in war and peace, or exclusively during war: to all engagements by which the parties superadd the sanction of a formal compact to principles dictated by the eternal laws of morality and humanity; and finally to all engagements which, according to the expression of Lord Bathurst’s note, are in the nature of a perpetual obligation. To the first and second of these classes may be referred the 10th article of the treaty of 1794, and all treaties or articles of treaties stipulating the abolition of the slave-trade. The treaty of peace of 1783 belongs to the third.”