both parties as one of prior unbroken existence. The United States "renounce" certain incidents of a right of territoriality in the British waters and coast, which right of territoriality by the very acceptance of this "renunciation" Great Britain reaffirms. For this purpose the word "renounce" was introduced by the United States negotiators, and with a knowledge of this purpose it was finally acceded to by the British. It would have been easy to say, "the British Government grants to the United States the right to enter the northeastern British waters for shelter, wood, and water;" and, if so, there would be ground to argue, not merely that the war of 1812 had so far destroyed the prior title as to make a new grant necessary, but that the title to be thus granted was restricted by the limitations which are regarded as attaching to all grants of sovereignty. The article just quoted, however, excludes such a contention. It points to the fisheries as held in common by two sovereignties--the sovereignty of Great Britain and the sovereignty of the United States. It declares, not that Great Britain cedes any part of her sovereignty in the fisheries to the United States (for the sovereignty of the United States it recognizes as existing in the fisheries), but that the United States cedes certain incidents of its sovereignty in these fisheries to Great Britain. The term "renounce," as here used, is, it must be recollected, not merely a term of law, with its distinctive legal meaning, but it is a term invested by history with certain incidents which the British negotiators would have been among the first to remember and the last to dispute. "Renounce" had been the term used in numerous treaties in which Great Britain had been a party, in which one sovereign surrendered a portion of his rights to another sovereign, who, by accepting the renunciation, recognized as valid all other rights to the territory out of which the portions renounced were taken. Such renunciations are common when, after war, one of the contending sovereigns agrees to give up a portion of his title, such renunciation, with its correlative recognition of the remainder of the title, being accepted by the other sovereign as part of the bargain. (See supra, § 133.) We have illustrations of this in the various renunciations in the treaties of Westphalia, of Ryswick, of Utrecht, in which it was never questioned that the "renunciation" made by one sovereign and accepted by the other was a recognition by the latter of the former's sovereignty as to the particular title, claimed by him, except so far as concerns the part carved out by the renunciation; nor is there any doubt that the renunciation is, in such cases, to be strictly construed in favor of the sovereign renouncing. To the renunciation in the treaty of 1818 this rule is peculiarly applicable, for the following reasons:

The British commissioners were aware of the American claim :(1) That the fisheries were conquered from France in a large measure by the colonies.

(2) That they were held by the colonies in common with the parent country, and that this tenancy in common, from the fact that the colonies were endowed at the time with distinct local government, made the fisheries, in such tenancy, the appurtenances of the colonies as distinct political entities.

(3) That this tenancy in common was recognized by the treaty of peace of 1783, and the same rights in the fisheries were assigned to the United States (incorporating as they did the colonies) as were assigned to Great Britain, the United States continuing to enjoy these fisheries in common with Great Britain.

(4) That the tenancy of these fisheries, being an appurtenance of the United States, constituting its marine boundaries (subject to such interest of Great Britain), was no more disturbed by the war of 1812 than were the land boundaries which separated the United States from the British possessions, the rule being that war between two sovereigns does not disturb their boundaries and appurtenances unless there be an express cession in the pacification with which the war concludes (supra, § 135).

(5) That the application in the treaty of peace of the doctrine of par tition to the fisheries was a part of a system the assertion of which was then, in view of British interests in America, far more important to Great Britain than to the United States.

*

This was the basis on which rested the claim of the United States at the negotiations prior to the treaty of 1818. Those negotiations resulted in a compromise which that treaty embodied. The United States gained a recognition of a more extended area than that recognized by the treaty of 1783; they renounced, on behalf of their fishermen, what they till then possessed "any liberty heretofore enjoyed or claimed to take, dry, or cure fish" within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America, not included within the above-mentioned limits; provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter, of repairing damages therein, and of obtaining water, and for no other purpose whatever; with the further proviso "that they shall be under such restrictions as shall be necessary to prevent their taking or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them." Britain, therefore, recognized their rights to the fisheries outside of the three-mile belt, and within that belt recognized their territorial rights as existing prior to the revolution, the United States, however, agreeing to place themselves under such restrictions as would "prevent their taking or drying or curing fish therein," or "abusing the privileges hereby reserved to them." And the right of territoriality in Canada waters and shores thus recognized as existing in our fishermen brings with it the incidents of such territoriality. They may purchase, as may any other visitor to whom territorial rights are given, whatever is needed for their use. They must not "abuse" these "privileges." They must not smuggle, and what they buy must not be bought for the purpose of shore fishing. In other words, the treaty is not a grant of fisheries by Great Britain to the United States, but a grant by the United States to Great Britain of certain restrictions on fisheries which the United States already owned. Great Britain did not say to the United States, "Come here only for shelter, wood, and water"; but the United States said to Great Britain, "We, being here as tenants in common of these fisheries, agree not to take, cure, or dry fish within certain limits, or otherwise abuse the privileges hereby reserved to us."

Of similar rights of territoriality we have numerous illustrations: (1) Diplomatic agents, by the law of nations, and sometimes by treaty, possess certain rights of territoriality. This territoriality is restricted; yet it carries with it all incidents to its enjoyment. No one would argue that a diplomatic agent, when entering on or conducting his mission, is obliged to bring with him food and raiment for his entire stay, and is not permitted to buy new supplies when his original supplies are exhausted. No one would argue that while on such mission he is precluded

from visiting old or new friends, or is debarred from any ordinary rights of civilized humanity. No one will pretend that if he traversed the United States in transit to another mission he would be precluded from making in the United States all purchases suitable for such mission. The territoriality granted to him brings with it all proper incidents, except when expressly restricted. (Supra, §§ 92 ƒƒ').

(2) Of consuls the same position may be taken. By the law of nations the limited territoriality granted to consuls has, in most countries, been defined, as is the case with the territoriality recognized in fishermen, by express treaty stipulations (supra, §§ 120 ). Consuls, for instance, in certain treaties (e. g., that with France), are entitled to exercise certain functions without being subject to be disturbed by the local law (supra, §§ 98, 120, 121). As if to emphasize this, and to prevent the commingling of allegiances, it is provided in many treaties, and when not provided it is generally understood, that a consul is not to be a citizen of the state to which he is accredited (supra, § 113). But while, as is the case with the fishermen under the treaty of 1818, this territoriality is limited to the objects for which it is granted, in the one case as in the other, it carries with it all privileges incidental to such objects. No one disputes the right of consuls to purchase their supplies in the country in which this territoriality is granted to them, althongh, as in the case of the fishermen before us, while they can "purchase," they cannot "take." (3) The officers and crews of foreign ships of war have certain territorial rights in our ports. They are privileged to the hospitality of these ports; they may visit the shore, as may our fishermen on the Canada coasts, for specific purposes. Yet no one would pretend that when they thus visit the shore they are not entitled to make such purchases as are suitable, not merely for their immediate supply, but for their use in any future cruise they may desire to undertake. In certain portions of our coast, where fishing may be a pastime, it would be considered a strange thing to suggest that they could not buy bait on shore for such a pastime because they might throw out their lines within the three-mile zone. Be this as it may, there are few cruises on which a British man-of-war may expect to enter in which fishing may not become merely a pastime, but a useful means of obtaining fresh food. No one would imagine, however, that because the United States forbids the intrusion of foreign fishermen within its marine belt it would say to officers of British men-of-war to whom it grants the privilege of territoriality in its ports, "When you are on shore you must not buy bait, because fishing within three miles of the coast is forbidden." Yet buying bait is not a necessary incident to the life of the navy officer in whom the privilege of territoriality is recognized by international law if not by treaty, though it is a necessary incident to the life of the fishermen in whom the privilege of territoriality is recognized by the treaty of 1818. And this brings us again to the general proposition that a grant of territoriality for a specific purpose carries with it all the privileges incidental to the due exercise of such territoriality.

(4) Territorial rights in the United States given by treaty to British subjects have been regarded as carrying with them the necessary inci dents in like manner as those now claimed as belonging to United States fishermen when in Canada.

By Article III of the treaty of Great Britain and the United States of 1794

"It is agreed that it shall at all times be free to His Majesty's subjects and to the citizens of the United States, and also to the Indians dwell

S. Mis. 162-VOL. III- -4

ing on either side of the said boundary line, freely to pass and repass, by land or inland navigation, into the respective territories and countries of the two parties on the continent of America (the country within the limits of the Hudson's Bay Company only excepted), and to navigate all the lakes, rivers, and waters thereof, and freely to carry on trade and commerce with each other."

By Article XXX of the treaty of Great Britain and the United States of 1871

"It is agreed that, for the terms of years mentioned in Article XXXIII of this treaty, subjects of Her Britannic Majesty may carry in British vessels, without payment of duty, goods, wares, or merchandise from one port or place within the territory of the United States, upon the Saint Lawrence, the Great Lakes, and the rivers connecting the same, to another port or place within the territory of the United States as aforesaid: Provided, That a portion of such transportation is made through the Dominion of Canada by land carriage and in bond, under such rules and regulations as may be agreed upon between the Government of Her Britannic Majesty and the Government of the United States."

Such provisions are common to treaties between neighboring powers, rights of territoriality between their subjects being exchanged. Yet under such treaties it was never conceived that the persons exercising such rights of territoriality were precluded from purchasing provisions in their exercise of these rights. If this is the case with rights granted by treaty, a fortiori must it be the case with rights of original possession merely affirmed by treaty.

The rule thus stated is expressly declared in the last sentence of Article I of the convention of 1818, which, by an ordinary rule of treaty construction, qualifies and explains all that precedes (see supra, § 133). Territoriality is recognized as belonging to the fishermen of the United States when visiting the designated coasts, and then the exceptions to this territoriality are precisely stated. Fish are not to be "taken" or "dried" or "cured" in British territory by these fishermen, or the privileges hereby reserved abused. The latter exception is but an expression of the principle of the law of nations which forbids an abuse of territoriality assigned by such law. The former exception is to be also noted for the significance of its terms. Had the word "obtain" fish been used, it might be argued (though even in this case with little plausibility, since the object of these privileges was to further fishermen in their calling) that this precludes purchase of fish either for bait or for food. But this construction is excluded by the terms "take" and "cure." Both relate to the catching and preparation of fish as a part of a fisherman's trade, and this part of a fisherman's trade is not to be exercised in British territory. But since fishermen are admitted as fishermen, entitled to fish on the deep seas, their right of buying bait, as well as all other provisions for their support in their present and coming ventures, is affirmed by the very terms here used. And another word in this connection is here important. This right is not here "granted." It is, on the contrary, "reserved." It is part of an old right, theretofore existing, recognized as such. And this old right is to be taken as it had previously been taken. In Article I of the provisional articles of 1782, His Britannic Majesty, after acknowledging "the said United States, viz, New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut" (proceeding to enumerate the other nine States) "to be free, sovereign, and independent States," "relinquishes (to them) all claim to the Government, propriety (sic), and territorial rights of the

same and every part thereof." The same provision is part of article first of the definitive treaty of 1783. "These territorial rights" which the treaties of 1782 and 1783 recognize as belonging to the United States are again "reserved" to the United States by the treaty of 1818.

"It will also be perceived that we insisted on the clause by which the United States renounce their right to the fisheries relinquished by the convention, that clause having been omitted in the first British counter-project. We insisted on it with the view, 1st, of preventing any implication that the fisheries secured to us were a new grant and of placing the permanence of the rights secured and of those renounced precisely on the same footing; 2d, of its being expressly stated that our renunciation extended only to the distance of three miles from the coasts. This last point was the more important, as, with the exception of the fishery in open boats within certain harbors, it appeared from the communications above mentioned that the fishing ground on the whole coast of Nova Scotia is more than three miles from the shores, whilst, on the contrary, it is almost universally close to the shore on the coasts of Labrador. It is in that point of view that the privilege of entering the ports for shelter is useful, and it is hoped that with that provision a considerable portion of the actual fisheries on that coast (Nova Scotia) will, notwithstanding the renunciation, be preserved.”

Messrs. Gallatin and Rush to Mr. Adams, Sec. of State, Oct. 20, 1818. MSS.
Dispatches, Gr. Brit.; 4 Am. St. Pap. (For. Rel.), 380.

"Mr. Robinson said (at the conference of the negotiators of October 9, 1818) that there would be no insuperable objection, he believed, to granting us, or rather secur ing to us (as we never admitted the propriety of the term grant), as much extent of fishing ground as we asked, with the privileges appurtenant; but he feared that the principle of permanence which we were desirous of incorporating with the stipulation could not be assented to."

Mr. Rush's notes of negotiation, Monroe papers, Dept. of State.

That the right of free purchase on shore was meant by the negotiators to be affirmed by the treaty is shown (1) by the discussions of the nego tiators, as detailed in the prior notes and (2) by the action of the British Government from the period of the ratification of the treaty to the present day. In the legislation adopted by the British Parliament for the purpose of carrying into effect the treaty, there is a conspicu ous abstention from the imposition of penalties on the obtaining of bait and supplies by United States fishermen on the fishery coasts. Such an abstention is not merely a parliamentary declaration that such privileges are in accordance with the treaty, but it is a parliamentary contemporaneous construction of the treaty to the same effect. No parliamentary draftsmen are more accurate than those who frame British statutes; by no government counsel are the rights of sovereign and subject more closely guarded than by those who advise the British Crown. That by these high authorities the acts of Parliament, drawn to execute the treaty of 1818, impose no penalty on purchase of supplies and bait by United States fishermen on Canadian shores, shows that the construction given by the Crown authorities to the treaty was that these privileges the treaty confirmed. And the same may be said of the judi cial construction given to the treaty.

The right to enter Canadian "bays or harbors for the purpose of shelter and of repairing damages therein" includes in itself the right to procure whatever supplies are necessary for the successful continuance