contend for the liberty to take fish of every kind on the said coast from Cape Ray to the Quirpon Islands, though not to the exclusion of the French who have also the same right there. The United States therefore only insist that the right thus enjoyed by France, that of taking fish on the portion of the coast above mentioned, is not exclusive.

Your Excellency has appealed in support of the exclusive right claimed by France to treaties and conventions between her and the United States which are no longer in force, and seems to argue as if the engagement contracted by one of those was nevertheless still obligatory on America. It is at the same time asserted that this exclusive right, being derived from prior treaties, existed before those made between the two countries. This appears to me the true and only question which can possibly be a subject of discussion. But how it can be maintained that the United States are still bound either by the 10th article of the treaty of 1778, or by the 27th article of the convention of 1800; that a treaty which is no longer in force is still in part binding on one of the parties, is not easily understood.

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It was agreed by the 10th article of the treaty of 1778, "that the United States, their citizens, and inhabitants should 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 belonged to them on that part of the coast of that island which is designated by the treaty of Utrecht, nor in the rights relative to all and each of the isles belonging to H.M.C. Majesty; the whole conformable to the true sense of the treaties of Utrecht and Paris."

It must in the first place be observed that the part of the coast of Newfoundland which was designated by the treaty of Utrecht, was on the eastern and not on the western side of that island, that it extended from Cape Bonavista to the Quirpon Islands, and that it did not embrace any portion whatever of the western coast from the Quirpon Islands to Cape Ray which is now in question. The article having no reference to any right of fishing which might thereafter be acquired on any other part of Newfoundland by France, either by exchange or otherwise, the obligation then contracted by the United States does not apply to the western coast.

Supposing however, for the sake of argument, that the condition might by implication be considered as having after the treaty of Paris of 1783 become applicable to the coast in question, still the engagement could have had no longer duration than the treaty of 1778, of which it made part. The United States and France had not it in their power by that treaty to alter the true sense and meaning of that of Utrecht contracted between France and Great Britain. All they could do was to agree that the United States should be bound to give it the construction desired by France. Whether considered as making an alteration in her favour, or what from the whole tenor of the article is very doubtful, as declaratory of what, in the opinion of both parties, was the true intention of antecedent treaties, the obligation on the United States to abide by that engagement, or by that opinion, ceased to be binding on them the moment that the treaty of 1778 was abrogated.

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It is not presumed that your Excellency means to contend that that treaty is itself yet in force. Without referring to antecedent facts or to the subsequent uniform conduct of both Governments, the 2nd article of the convention of 1800, and the modification inserted in its ratification, by which the parties expressly renounced all pretensions which might be derived from former treaties, are sufficient to remove every doubt on that question. The 27th article of that convention affords an additional proof, if any was wanting, that the parties considered the 10. article of the treaty of 1778 as making no exception, and as being no more binding than any other part of that treaty; since it would have been unnecessary, had it been still in force, to insert that provision in the convention. And relating to the same subject, that 27. article has at all events superseded the 10. article of the treaty of 1778 even supposing what it is impossible to establish, that this had survived all the other conditions of that treaty.

Recurring then to the stipulations of 1800, it will be seen that the United States were no longer willing to renew that by which they had engaged in 1778 to consider as the exclusive right of France to fish on any part of the coast of Newfoundland. The provisions of the 27th article are in the following words:

Neither party will intermeddle (in the French copy "ne viendra participer ") in the fisheries of the other on its coasts, nor disturb the other in the exercise of the rights which it now holds or may acquire on the coast of Newfoundland, in the Gulf of St. Lawrence, or elsewhere on the American coast northward of the United States. But the whale and seal fisheries shall be free to both in every quarter of the world.

Not only the word "exclusive" is not to be found in the part of the article which relates to Newfoundland, but it is evident from the tenor of the whole, that it was not intended by either party to recognise any such exclusive right in that quarter. There is an express distinction made between the coasts of each country, and those of Newfoundland and elsewhere. When speaking of the first, both parties respectively engage not to intermeddle with, not to participate in the fisheries of the other. Instead of this they only agree not to disturb each other in their rights on the coast of Newfoundland, clearly intimating that to participate was not to disturb; since had it been otherwise, the expressions "not to intermeddle," "not to participate," would have been preserved, and made applicable to the fisheries on that coast, as well as to those on the coast of each country. It would indeed be preposterous to suppose that the United States, by agreeing not to disturb France in the exercise of the rights which she might acquire anywhere on the coast of Newfoundland in the Gulf of St. Lawrence or elsewhere on the American coast northward of the United States, engaged not to participate in such fisheries, and to consider as exclusive the rights which might be acquired by France; since this would have been tantamount to a renunciation on their part of nearly the whole of the fisheries they then enjoyed, and to which they had an indisputable right. But the article makes no distinction whatever between the rights then held and those which might be thereafter acquired by France. If these therefore could not be exclusive, neither those she then held were recognised as such by the article.

I have alluded to those stipulations only as connected with those of 1778 to which they had been substituted. They have as well as

the convention in which they were inserted and all the preceding treaties between France and the United States, ceased to be in force. Nothing remains of the obligations formerly contracted by both countries on the subject of the fisheries; and the question recurs which is stated in part of your Excellency's letter, whether independent of any such former stipulations, and by virtue of any treaty antecedent to the right of the United States to take fish on the western coast of Newfoundland, France had there an exclusive right. That it was not viewed as such by either the United States or 105 Great Britain is sufficiently evident from the article in the

convention of 1818, of which I had the honour to enclose a copy to your Excellency. And after a most attentive perusal of the treaties alluded to, I have been unable to discover on what ground the presumed exclusive right was founded. It would be premature to enter into that discussion at this time, and until the special treaty stipulations and arguments by which the claim is intended to be supported shall have been communicated, whenever it may suit your Excellency's convenience to make that communication, the considerations which may be urged by France will receive all the attention to which they are so justly entitled, and be discussed in the most amicable temper. But the United States cannot in the meanwhile, and until the question shall have been settled, order or advise their citizens to abstain from what they must until then consider as their just right, the liberty to participate in common with the French. and without disturbing them, in the fisheries on the western coast of Newfoundland, which particularly in their connection with those of the coast of Labrador are of primary importance to them. It is therefore, my duty to renew my remonstrances against the proceedings of His Majesty's armed ships in that quarter, and to call again your Excellency's most earnest attention to the subject.

Whatever may be the extent of the rights of France on that coast, whether exclusive or not, they are only those of taking and drying fish. The sovereignty of the Island of Newfoundland, on which she had till then possessions, was expressly ceded by the treaty of Utrecht to Great Britain, subject to no other reservation whatever but that of fishing as above mentioned, on part of the coast. The jurisdiction and all the other rights of sovereignty remained with and belonged to Great Britain and not to France. She has not therefore that of doing herself on that coast, what may be termed summary justice, by seizing or driving away vessels of another nation, even if these should in her opinion infringe her rights. Such acts of authority which may be lawful when performed within the acknowledged jurisdiction, become acts of aggression when committed either on the high seas, or anywhere else without the jurisdiction of the Power that permits them. No Government has more strenuously contended for that principle than that of France: none has been more justly tenacious of the rights of her merchant ships, or has more efficaciously protected them and their flag against any supposed aggression of that nature. I may therefore appeal with confidence to your Excellency, when, reserving entire the right to the indemnities which may be justly claimed for the injuries already sustained on that account, I beg leave to request that positive and immediate orders may be given. to the officers of His Majesty's navy, that the fishermen of the United

States shall not be disturbed hereafter, nor until an amicable arrangement shall have been made on that subject.

I request your Excellency to accept &c &c &c

No. 50.-1823, April 2: Letter from Mr. Gallatin to Viscount de Chateaubriand.

PARIS, April 2, 1823.

SIR, The last despatches received from my Government contain renewed and special instructions reminding me that the fishing season for the present year is rapidly approaching, and that the proceedings of the commanders of French armed vessels, in driving the American fishermen from a coast the sovereignty of which belongs to another Power, and over which France has no jurisdiction, are an aggression which cannot, after having been taken into serious consideration, be again renewed under the sanction of His Majesty's Government. Having already anticipated these instructions, I can only call your Excellency's attention to my letter of the 14th of March, and respect the favour of an answer which I may be enabled to transmit to my Government.

I request your Excellency to accept &c &c

(Signed)

ALBERT GALLATIN.

No. 51.-1883, April 5: Letter from Viscount de Chateaubriand to Mr. Gallatin.

PARIS le 5. avril 1823.

MONSIEUR, L'objet de la lettre que vous m'avez fait l'honneur de m'adresser le 14. mars, sur les pêcheries de Terre Neuve, a été d'abord d'établir qu'en vertu de l'article 13 du traité d'Utrecht qui assure nos droits de pêche sur les côtes de cette île, aucune partie de ces droits ne pouvait s'appliquer à la côte occidentale. Il serait peutêtre permis, Monsieur, d'attribuer cette observation à l'inexactitude des cartes que vous auriez consultées; et je pense que des renseignements plus précis auront pu changer sur ce point votre opinion.

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Vous ne regardez plus, Monsieur, comme des actes obligatoires les traités conclus en 1778 et en 1800 entre la France et les États Unis; et les stipulations qui s'y trouvent sur le droit de pêche vous paraissent dès lors ne plus avoir de vigueur aujourd'hui. Veuillez observer, Monsieur, que je n'ai point révoqué en doute votre observation générale sur la durée temporaire de l'un et l'autre traité. Je me suis borné à remarquer que les stipulations de celui de 1778 qui étaient relatives au droit de pêche appartenant à la France, n'étaient point une concession faite à la France par les États Unis; mais qu'elles n'étaient de leur part que la déclaration et la reconnaissance d'un droit antérieur; et que ce droit, nécessairement indépendant des traités où on le rappellait, ne pouvait point tomber en désuétude avec eux. J'ai dû conclure de la même observation que ce droit subsistait

encore depuis que les traités n'existaient plus, et j'ai ajouté que le Gouvernement des États Unis qui l'avait reconnu par deux traités successifs, n'avait eu depuis cette époque, aucun motif pour le révoquer en doute. Je vous ai enfin prié d'observer que jusqu'à ce que cet ordre de choses eût été modifié par un arrangement entre les deux Puissances, il devait être considéré comme toujours subsistant, et qu'il était à désirer que le Gouvernement fédéral prît des mesures pour éviter sur l'exercice de ce droit tout conflit de juridiction.

La réponse que vous m'avez fait l'honneur de m'adresser ne me paraît point détruire les observations que je vous avais faites le 22. janvier. J'ai recommandé depuis quelque temps au chargé d'affaires de France près le Gouvernement fédéral d'entrer avec lui en explication sur cet objet je lui en écris encore; et je dois me persuader, Monsieur, que les démarches qu'il est chargé de faire, parviendront, à écarter les malentendus et les inconvénients que vous paraissez craindre dans les lettres que vous m'avez fait l'honneur de m'adresser. Le Gouvernement français désire lui-même qu'ils soient évités; et dans cette vue, il cherchera volontiers toutes les voies de conciliation qui pourront s'accorder avec l'exercice de ses droits.

Agréez Monsieur, les assurances &c &c &c

(Signé)

CHATEAUBRIAND

No. 52.-1823, April 15: Letter from Mr. Gallatin to Viscount de

Chateaubriand.

PARIS, April 15, 1823.

SIR, I had the honour to receive your Excellency's letter of the 5th instant on the subject of the Newfoundland fisheries.

The observation in my letter of the 14th of March last, that the obligation contracted by the United States by the treaty of 1778, did not apply to the western coast of Newfoundland, was expressed in too general terms, and applies only to that part of the coast which extends from Cape Ray to Point Riche. However uncertain the position of this point, which I have not been able to find in any of the maps published before the treaty of Utrecht, it appears to have been understood by both parties to be somewhere on the western coast, and the right to fish between it and the Quirpon Islands, was therefore secured to France by that treaty. This does not however, affect the main arguments used in my letter, as I reasoned on the supposition that the treaty of 1778 was applicable to the whole western coast.

It was not denied that if France had an exclusive right to the fisheries in question prior to and independent of the treaty of 1778, that right is still in full force; but I have contended that the stipulation then entered into was not renewed by the convention of 1800, and that if founded in error, the recognition of such right by the treaty above mentioned was at this time no more binding on the United States than any of its other conditions. I regret that my observations in that respect should have failed in producing any effect, but it is hoped that the chargé d'affaires of France at Washington has been instructed to give some answer to them, and to state the grounds on which independent of the treaty of 1778, the exclusive right claimed by her, is founded.