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Washington, 7th May, 1822.
To the House of Representatives :
In compliance with the Resolution of the House of Representatives, of the 7th of May, requesting the President of The United States "to communicate to that House the Letter of Jonathan Russell, Esq. referred to in his Message of the 4th instant, together with such Communications as he may have received relative thereto, from any of the other Ministers of The United States who negotiated the Treaty of Ghent," I herewith transmit a Report from the Secretary of State, with the Documents called for by that Resolution.
Report of the Secretary of State.
Department of State, Washington, 7th May, 1822.
THE Secretary of State has the honour of transmitting to the President of The United States, his Remarks upon the Paper deposited at the Department of State, on the 22d of last month, by Jonathan Russell, late one of the Plenipotentiaries of The United States, at the Negotiation of Ghent, to be communicated to the House of Representatives, as the Letter called for by their Resolution of the 19th of that month; and the Secretary of State respectfully requests that the President would transmit to the House of Representatives these Remarks, together with the above-mentioned Communication of Mr. Russell, on the renewal of the call therefor by the House. The Hon. James Monroe.
JOHN QUINCY ADAMS.
Mr. Russell to the Secretary of State.—(Private.)
Paris, 11th February, 1815. IN conformity with the intimation contained in my Letter of the 25th of December, I now have the honour to state to you the reasons which induced me to differ from a majority of my Colleagues, on the expediency of offering an Article confirming the British right to the Navigation of the Mississippi, and the right of the American People to take and cure Fish in certain Places within the British jurisdiction.
The proposition of such an Article appeared to be inconsistent with our reasoning to prove its absolute inutility. According to this reasoning, no new Stipulation was any more necessary, on the subject of such an Article, than a new Stipulation for the recognition of the Sovereignty and Independence of The United States.
The Article proposed appeared also to be inconsistent with our Instructions, as interpreted by us, which forbid us to suffer our right to the Fisheries to be brought into discussion; for, it could not be believed that we were left free to stipulate on a subject which we were restrained from discussing, and that an argument, and not an agreement, was to be avoided. If our construction was indeed correct, it might
not, perhaps, be difficult to show that we have not, in fact, completely refrained from the interdicted discussion.
At any rate, the proposal of the Article in question was objectionable, inasmuch as it was incompatible with the principles asserted by a majority of the Mission, and with the construction which this majority had adopted on that part of our Instructions which related to the Fisheries. If the majority were correct in these principles, and in this construction, it became us to act accordingly: if they were not correct, still it was unnecessary to add inconsistency to error.
I freely confess, however, that I did not accord with the majority, either in their view of the Treaty of 1783, whence they derived their principles, or of our Instructions; and that my great objection to proposing the Article did not arise from any anxiety to reconcile our conduct with our reasoning and declarations.
I could not believe that the Independence of The United States was derived from the Treaty of 1783; that the recognition of that Independence, by Great Britain, gave to this Treaty any peculiar character, or that such character, supposing it existed, would necessarily render this Treaty absolutely inseparable in its provisions, and make it one entire and indivisible whole, equally imperishable in all its parts, by any change which might occur in the relations between the Contracting Parties.
The Independence of The United States rests upon those fundamental principles set forth and acted on by the American Congress, in the Declaration of July, 1776, and not on any British grant in the Treaty of 1783, and its era is dated accordingly.
The Treaty of 1783 was merely a Treaty of Peace, and therefore subject to the same rules of construction as all other Compacts of this nature. The recognition of the Independence of The United States could not well have given to it a peculiar character, and excepted it from the operation of these rules. Such a Recognition, expressed or implied, is always indispensable on the part of every Nation with whom we form any Treaty whatsoever. France, in the Treaty of Alliance, long before the Year 1783, not only expressly recognized, but engaged effectually to maintain, this Independence; and yet this Treaty, so far from being considered as possessing any mysterious peculiarity, by which its existence was perpetuated, has, even without War, and although part of it contained words of perpetuity, and was unexecuted, long since entirely terminated.
Had the recognition of our Independence by Great Britain given to the Treaty of 1783 any peculiar character, which it did not, still that character could have properly extended to those provisions only which affected that Independence. All those general rights, for instance, of jurisdiction, which appertained to The United States, in their quality as a Nation, might, so far as that Treaty was declaratory
of them, have been embraced by such peculiarity, without necessarily extending its influence to mere special commercial liberties and privileges, or to provisions long since executed, not indispensably connected with national Sovereignty, or necessarily resulting from it.
The liberty to take and cure Fish, within the exclusive jurisdiction of Great Britain, was certainly not necessary to perfect the jurisdiction of The United States; and there is no reason to believe that such a liberty was intended to be raised to an equality with the general right of Fishing within the common jurisdiction of all Nations, which accrued to us as a member of the great national Family. On the contrary, the distinction between the special liberty and the general right appears to have been well understood by the American Ministers who negotiated the Treaty of 1783, and to have been clearly marked by the very import of the terms which they employed. It would evidently have been unwise in them, however ingenious it may be in us, to exalt such a privilege 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, on 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 liberty. They could not have meant thus to place, within the controul of a Foreign Government and its Subjects, an integral part, as we now affect to consider this privilege, 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 continuation 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 immediate connection with our Independence, that it did not necessarily affect the nature of the whole Treaty, or attach to a privilege which had no analogy to such provisions, or any relation to that Independence.
I know not, indeed, any Treaty, or any Article of a Treaty, whatever 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 succeed
ing Treaty of Peace. I cannot, indeed, conceive the possibility of such a Treaty or 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 had 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 liberty in question. If hostilities could not affect that Treaty, or abrogate its provisions, why did we permit the Boundaries assigned by it to be brought into discussion, or stipulate for a restitution of all Places taken from us during the present War? If such 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 21st of December, that, " at the time of the Treaty of 1783, it was no new grant, we having always before that time enjoyed it," and thus endeavoured to derive our title to it from prescription. A title, derived from immemorial usage, antecedent to 1783, could not well owe its origin or its validity to a Compact concluded at that time, and we could, therefore, on this view of the subject, correctly say that this privilege 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 unnecessary to attempt to give a kind of charmed existence to the Treaty of 1783, and to extend its 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 severance of the Provisions of that Treaty, that we should have discovered, ourselves, a radical difference between them, making the fishing privilege depend on immemorial usage, and, of course, distinct in its nature 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 any other of the rights of our Independence, making it thus one of 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 recognized 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, 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 shew that we cannot, indeed, derive a better title to this fishing privilege from prescription than from any indestructible quality of the Treaty of 1783.
Prescription appears to me to be inapplicable to the Parties and to the subject, and to be defective both in 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 by the Citizens of an Independent Republick, residing within the exclusive jurisdiction of that Republick. 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 7 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 or mere lapse of time, (nullum tempus regi occurrit). The British Sovereign was always competent to regulate 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 Massachusetts, to fish, and dry and cure fish in the Bays, Harbours, and Creeks of Labrador, which, by the way, had 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, a fortiori, no such right to the Citizens of The United States,