to the rank of a sovereign right, and thereby to have assumed the unnecessary and inconvenient obligation of considering such a liberty to be an indispensable condition of our national existence, and thus rendering that existence as precarious as the liberty itself. They could not have considered a privilege which they expressly made to depend, to a very considerable extent, for its continuance, (32) on mere events and private interests, as partaking of the character, and entitled to the duration, of the inherent properties of sovereignty. The settlement of the shores might, at any time, have been effected by the policy of the British government, and would have made the assent of British subjects under the influence of that policy, necessary to the continuance of a very considerable portion of that (33) privilege. They could not have meant thus to place within the control of a foreign (34) power and its subjects, an (35) integral part, as we now affect to consider this pri vilege, of our national rights.

It is from this view of the subject that I have been constrained to believe that there was nothing in the treaty of 1783, which could essentially distinguish it from ordinary treaties, or rescue it, on account of any peculiarity of character, from the jura belli, or from the operation of those events on which the (36) continuance or termination of such treaties depends.

I was, in like manner, compelled to believe, if any such peculiarity belonged to those provisions in that treaty, which had an im mediate connection with our independence, that it did not necessarily affect the nature of the whole treaty, (37) nor attach to a privilege which had no analogy to such provisions, nor any relation to that independence.

I know not, indeed, any treaty, nor any article of a treaty, what ever may have been the subject to which it related, or the terms in which it was expressed, that has survived a war between the parties, without being specially renewed, by reference or recital, in the succeeding treaty of peace. I cannot, indeed, (38) conceive the possibility of such a treaty, or of such an article; for, however clear and strong the stipulations for perpetuity might be, these stipulations themselves would follow the fate of ordinary unexecuted engagements, and require, after a war, the declared assent of the parties for their revival.

'We appear, in fact, not to have an unqualified confidence in our construction of the treaty of 1783, or to have been willing to rest exclusively on its peculiar character our title to any of the rights mentioned in it; and much less our title to the fishing (39) privilege in question.

If hostilities could not affect that treaty, (40) nor abrogate its provisions, why did we permit the boundaries assigned by it, to be brought into discussion, or stipulate for a (41) restoration of all places taken from us during the present war? If such (42) a restitution was. secured by the mere operation of the treaty of 1783, why did we discover any solicitude for the status ante bellum, and not resist the principle of uti possidetis on that ground.

With regard to the fishing privilege, we distinctly stated to you, in our letter of the (43) 21st of December, that, (44) "at the time of the treaty of 1783, it was (45) no new grant, we having always before that time enjoyed it," and thus endeavoured to derive our title to it from (46) prescription. A title, derived from immemorial usage, antecedent to 1783, could not well owe its origin or its validity (47) to a compact concluded at that time, and we (48) could, therefore, in this view of the subject, correctly say that this privilege (49) was no new grant; that is, that our right to the exercise of it was totally independent of such compact. If we were well-founded, however, in the assertion of our prescriptive title, it was quite (50) unnecessary to attempt to give a kind of charmed existence to the treaty of 1783, and to extend its (51) undefinable influence to every article of which it was composed, merely to preserve that title which we declared to be in no way derived from it, and which had existed, and, of course, could exist, without it.

It was rather unfortunate, too, for our argument against a sevèrance of the provisions of that treaty, that we should have discovered, ourselves, (52) a radical difference between them, making the fishing (53) privilege depend on immemorial usage, and, of course, distinct in its nature (54) and origin from the rights resulting from our independence.

We, indeed, throw some obscurity over this subject when we declare to you that this privilege was always enjoyed by us before the treaty of 1783, thence inferring that it was not granted by that treaty, and in the same sentence and from the same fact, appear also to infer, that it was not to be forfeited by war any more than (55) any other of the rights of our independence, making it thus one of (56) these rights, and of course, according to our doctrine, dependant on that treaty.

There might have been nothing incomprehensible in this mode of reasoning, had the treaty recognised this privilege to be derived from prescription, and confirmed it on that ground. The treaty has, however, not the slightest allusion to the past, in reference to this privilege, but regards it only with a view to the future. The treaty, (57) therefore, cannot be construed as supporting a pre-existing title, but as containing a grant entirely new. If we claim, therefore, under the treaty, we must renounce prescription, and if we claim from prescription, we can derive no aid from the treaty. If the treaty be imperishable in all its parts, the fishing privilege remains unimpaired without a recurrence to immemorial usage; and if our title to it be well-founded on immemorial usage, the treaty may perish without affecting it. To have endeavoured to support it on both grounds, implies that we had not entire confidence in either, and to have proposed a new article, indicates a distrust of both.

It is not, as I conceive, difficult to show that we (58) cannot, indeed, derive (59) a better title to this fishing privilege, from prescription, than from any indestructible quality of the treaty of 1783.

With regard to the fishing privilege, we distinctly stated to you, in our letter of the (43) 25th of December last, that (44) at the time of the treaty of 1783, it was (45) no new grant, we having always before that time enjoyed it, and thus endeavoured to derive our title to it from (46) prescription; a title derived from immemorial usage, antecedent to 1783, could not well owe its origin, or its validity, (47) to any compact, concluded at that time; and we (48) might, therefore, in this view of the subject, correctly say that this privilege (49) was then no new grant; that is, that our right to the exercise of it was totally independent of such compact. If we were well founded, however, in the assertion of our prescriptive title, it was quite (50) unnecessary for us to attempt to give a kind of charmed existence to the treaty of 1783, and to extend its (51) indefinable influence to every article of which it was composed, merely to preserve that title which we declared to be in no way derived from it, and which had existed, and, of course, could exist without it.

It was rather unfortunate, too, for our argument against the severance of the provisions of that treaty, that we should have discovered, ourselves, (52) such a radical difference between them, making the fishing (53) privilege to depend on the immemorial usage, and, of course, distinct, in its nature (54) and in its origin, from the rights resulting from our independence.

We indeed throw some obscurity over this subject, when we declare to you that this privilege was always enjoyed by us before the treaty of 1783; thence inferring that it was not granted by that treaty, and, in the same sentence, and from the same fact, appear also to infer that it was not to be forfeited by war, any more than (55) any other of the rights of independence; making it thus one of (56) those rights, and, of course, according to our doctrine, dependant on that treaty. There might have been nothing incomprehensible in this mode of reasoning, had the treaty recognised this privilege to be derived from prescription, and confirmed it on that ground. The treaty, however, has not the slightest allusion to the past, in reference to this privilege, but regards it only with a view to the future. The treaty (57) cannot, therefore, be construed as supporting a pre-existing title, but as containing a grant entirely new. we claim, therefore, under the treaty, we must renounce prescrip tion; and if we claim from prescription, we can derive no aid from the treaty. If the treaty be imperishable in all its parts, the fishing privilege remains unimpaired, without a recurrence to immemorial usage; and if our title to it be well founded on immemorial usage, the treaty may perish without affecting it. To have endeavoured to support it on both grounds, implies that we had not entire confidence in either, and to have proposed a new article indicates a distrust of both.

If

It is not, as I conceive, difficult to show that we (58) can, indeed, derive (59) no better title to this fishing privilege from prescription, than from any indestructible quality of the treaty of 1783.

Prescription (60) appears to me to be inapplicable to the (61) parties and to the (62) subject, and to be defective both in (63) fact and effect. As to the parties :-the immemorial enjoyment of a privilege within British jurisdiction, by British subjects, the inhabitants of British colonies, could not well be considered as evidence of a title to that privilege claimed (64) by the citizens of an independent republic, residing within the exclusive jurisdiction of that republic. The people of the United States, as such, could have claimed no special privilege within the dominions of any foreign power from immemorial usage, in 1783, when the longest duration of their own existence in that quality was little more, at the utmost, than the brief period of seven years, which is surely not beyond the memory of man, (ultra memoriam hominis.) The people of the United States had never, in fact, during that period, enjoyed the fishing privilege a moment; being effectually prevented therefrom by the existing state of hostilities. Nor could the inhabitants of the colonies, originally constituting the United States, even in their colonial condition, acquire against their sovereign any right from long usage (65) or mere lapse of time, (66) (nullum tempus regi occurrit.) The British sovereign was always competent to regulate (67) and restrain his colonies in their commerce and intercourse with each other, whenever and however he might think proper, and had he forbid his subjects in the province of (68) Massachusetts, to fish (69) and dry and cure fish in the bays, harbours, and creeks of Labrador, which, by the way, had (70) not immemorially belonged to him, it is not to be imagined that they would have conceived themselves discharged from the obligation of submitting, on account of any pretended right from immemorial usage. The fishing privilege, therefore, enjoyed by British subjects within British jurisdiction, could give no perma nent and independent right to those subjects themselves and, (71) a fortiori, no such right to the citizens of the United States, claiming under a (72) different estate and in a different capacity. Great Britain might, indeed, as well prescribe for the prerogatives of her sovereignty over us, as we for any of the privileges which we enjoyed as her subjects.

I do not think it necessary to inquire how far the practice of the people of Massachusetts was the practice of (73) the whole original thirteen United States, or of the United States now, including Louisiana; or how far the immemorial usage of the people of Boston can establish a prescriptive right in the people of New-Orleans. I trust I have said enough to show that prescription is (74) inapplicable to the parties. It is also, I conceive, inapplicable to the subject.

Had the United States, as an independent nation, enjoyed, from time immemorial, the fishing privilege in question, still, from the nature of this privilege, no prescriptive right (75) could have thence been established. A right to fish, or to trade, or to do (76) any other act or thing within the exclusive jurisdiction of a foreign state, is a (77) simple power, a right (78) of mere ability, (jus meræ facultatis,) de

Prescription (60) appears to be inapplicable to the (61) parties, and to the (62) subject, and to be defective both in (63) fact and effect.

As to the parties :-the immemorial enjoyment of a privilege, within British jurisdiction, by British subjects, the inhabitants of British colonies, could not well be considered as evidence of a title to that privilege, (64) claimed by citizens of an independent republic, residing within the exclusive jurisdiction of that republic. The people of the United States, as such, could have claimed no special privilege within the dominions of any foreign power, from imme morial usage, in 1783, when the longest duration of their own existence in that quality was little more, at the utmost, than the brief period of seven years, which is surely not beyond the memory of man, (ultra memoriam hominis.) The people of the United States had never, in fact, during that period, enjoyed the fishing privilege a moment, being effectually prevented therefrom by the existing state of hostilities. Nor could the inhabitants of the colonies, originally constituting the United States, even in their colonial condition, acquire against their sovereign any right from long usage, (65) or the mere lapse of time, (66) (nullum tempus regi occurrit.) The British sovereign was always competent to regulate (67) or to restrain them in their commerce and intercourse with each other, whenever and however he might think proper. And had he forbid his subjects, in the province of (68) Massachusetts Bay, to fish, (69) and to dry and cure fish, in the bays, harbours, and creeks, of Labrador, which, by the way, had (70) not immemorially belonged to him, it is not to be imagined that they would have conceived themselves discharged from the obligation of submitting, on account of any pretended right from immemorial usage.

The fishing privilege, therefore, enjoyed by British subjects, within British jurisdiction, could give no permanent and independent right to those subjects themselves, and, (71) a fortiori, no such right to the citizens of the United States, claiming, under a (72) different estate, and in a different capacity. Great Britain might, indeed, as well prescribe for the prerogatives of her sovereignty over us, as we for any of the privileges which we enjoyed as her subjects. I do not think it necessary to inquire how far the practice of the people of Massachusetts was the practice of (73) the people of the whole original thirteen United States, or of the United States now, including Louisiana; or how far the immemorial usage of the people of Boston can establish a prescriptive right in the people of NewOrleans. I trust I have said enough to show that prescription is (74) inapplicable to the parties.

It is, also, I conceive, inapplicable to the subject. Had the United States, as an independent nation, enjoyed, from time immemorial, the fishing privilege in question, still, from the nature of this privilege, no prescriptive right (75) would have thence been established. A right to fish, or to trade, or to do (76) any other thing, within the exclusive jurisdiction of a foreign state, is a (77) simple power, a right (78) of mere ability, jus meræ facultatis, depend