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claiming under a 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 the whole original 13 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 shew that prescription is 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 could have thence been established. A right to fish, or to trade, or to do any other act or thing within the exclusive jurisdiction of a Foreign State, is a simple power, a right of mere ability, (jus merce facultatis,) depending on the will of such State, and is consequently imprescriptible. An independent title can be derived only from Treaty.
I conceive, therefore, that our claim to the fishing privilege, from immemorial usage, is not only unsupported by the fact, but cannot, in effect, result from such usage.
I have, from this view of the subject, been led to conclude, that the Treaty of 1783, in relation to the fishing liberty, is abrogated by the War; that this liberty is totally destitute of support from prescription; and that we are, consequently, left without any title to it whatsoever. For, I cannot prevail upon myself to seek for such a title in the relative situation of the Parties, at the time of negotiating the Treaty of 1783, and contend, according to the insinuation contained in our Letter to you of the 21st of December, that the jurisdiction of Great Britain over the Colonies, assigned to her in America, was a grant from The United States, and that The United States, in making this grant, reserved to themselves the privilege in question. Such a pretension, however lofty, is so inconsistent with the circumstances of the case, and with any sober construction which can be given to that Treaty, that I shall, I trust, be excused from seriously examining its validity.
Having thus stated some of the reasons which induced me to differ in opinion from a majority of my Colleagues, relative to the character of the Treaty of 1783, as well as with regard to every other foundation on which they were disposed to rest our title to the fishing privilege; I shall now proceed to explain the causes which influenced me to dissent from them in the interpretation of our Instructions. These Instructions forbid us to permit our rights to the trade beyond the Cape of Good Hope, to the Fisheries, and to Louisiana, to be brought into discussion.
I conceived that this prohibition extended to the general rights only, which affected our Sovereignty, and resulted from it, and not to mere special liberties and privileges which had no relation to that Sovereignty, either as to its nature or extent.
The right relating to the trade beyond the Cape of Good Hope, was the right which belonged to us as an Independent Nation, in common with all other Independent Nations, and not the permission of trading to those parts of the East Indies which were within the exclusive jurisdiction of Great Britain. In like manner, the right to the Fisheries, contemplated by our Instructions, was, I conceived, the right, common to all Nations, to use the open sea for fishing as well as for navigation, and not to the liberty to fish and cure fish within the Territorial limits of any Foreign State. The right to Louisiana, which was not to be brought into discussion, was the right to the Empire and Domain of that Region, and not to the right of excluding Great Britain from the navigation of the Mississippi.
How far we conformed to this Instruction, with regard to the general right to Louisiana, it is not necessary for me here to inquire, but certainly the majority believed themselves permitted to offer a very explicit Proposition with regard to the navigation of its principal River. I believed, with them, that we were so permitted, and that we were likewise permitted to offer a Proposition relative to the fishing liberty, and had the occasion required it, to make proposals concerning the trade to the British East Indies. I was persuaded, that treating relative to these privileges, or discussing the obligation or expediency of granting or withholding them, respectively, violated in no way our Instructions, or affected the general rights which we were forbidden to bring into discussion. Considering, therefore, the fishing liberty to be entirely at an end, without a new Stipulation for its revival, and believing that we were entirely free to discuss the terms and conditions of such a Stipulation, I did not object to the Article proposed by us, because any Article on the subject was unnecessary or contrary to our Instructions, but I objected specially to that Article, because, by conceding in it the free Navigation of the Mississippi, we offered, in my estimation, for the fishing privilege, a price much above its value.
In no view of the subject could I discover any analogy between the two objects, and the only reason for connecting them and making them mutual equivalents for each other, appeared to be because they were both found in the Treaty of 1783.
If that Treaty was abrogated by the War, as I consider it to have been, any connection between its parts must have ceased, and the liberty of navigating the Mississippi by British Subjects must, at least, be completely at an end; for it will not, I trust, be attempted to continue it by a prescriptive title, or to consider it as a reservation, made by The United States, from any grant of Sovereignty which, at the
Treaty of Peace, they accorded to Great Britain. If, indeed, it was such a reservation, it must have been intended for our benefit, and, of course, could be no equivalent for the fishing privilege. If it is considered as a reservation made by Great Britain, it will reverse the facts assumed by us in relation to that privilege.
The IIId Article of the Treaty of 1783, respecting the Fisheries, and the VIIIth Article of that Treaty, respecting the Mississippi, had not the slightest reference to each other, and were placed as remote the one from the other, as the limits of that Treaty could well admit. Whatever, therefore, was the cause of inserting the fishing liberty, whether it was a voluntary and gratuitous grant on the part of Great Britain, or extorted from her as a condition on which the Peace depended, it could have had no relation to the free Navigation of the Mississippi. Besides, the Article relative to this river must, from the evident views of the Parties at the time, from their supposed relations to each other, and from their known relations to a third Power, as to this river, have been considered of mutual and equal advantage, and furnished no subject for compensation or adjustment in any other Provision of that Treaty. Both Parties believed that this river touched the Territories of both, and that, of course, both had a right to its navigation. As Spain possessed both banks of this river, to a considerable distance from its mouth, and one of its banks nearly throughout its whole extent, both Parties had an interest in uniting to prevent that Power from obstructing its navigation. Had not the Article been intended to engage the Parties in relation to Spain, they would, probably, have limited it to the navigation of the river as far as their own Territories extended on it, and not have stipulated for this navigation to the Ocean, which necessarily carried it through the exclusive Territories of Spain.
If the circumstances had been, in fact, such as the Parties at the time believed them to be, and with a view to which they acted; or had these circumstances subsequently experienced no radical change; Great Britain would have gained now no more than she would have granted by the revival of the Article in relation to the Mississippi, and would not, any more than in 1783, have acknowledged any equivalent to be conferred by it for our liberty relative to the Fisheries. The circumstances, however, assumed by the Parties at the time, in relation to Great Britain, and from which her rights were deduced, have not only, in part, been discovered not to have existed, but those which did exist have been entirely changed by subsequent events. It has been ascertained that the Territories assigned to Great Britain no where, in fact, reached the Mississippi; and the acquisition of Louisiana by The United States has for ever removed the Spanish jurisdiction from that river. The whole consideration, therefore, on the part of Great Britain, whether derived from her territorial rights, or from her part of the recipro
cal obligations relative to Spain, having entirely failed, our engagements, entered into on account of that consideration, may be fairly construed to have terminated with it.
In this view of the subject, Great Britain could have had no title to the navigation of the Mississippi, even if a War had not taken place between the Parties. To renew, therefore, the claims of Great Britain, under that Article, subject to this construction, would be granting her nothing; and to renew that Article, independent of this construction, and without any reference to the circumstances that attended its origin, in 1783, or to the events which have since occurred in relation to it, would be granting her advantages not only entirely unilateral, as it relates to the Article itself, but, as I believe, of much greater importance than any which we could derive from the liberty relative to the Fisheries.
If the Article which we offered merely intended to rescue the IIId and VIIIth Articles of the Treaty of 1783 from the operation of the present War, and to continue them precisely as they were immediately prior to this War, the IIId Article being then in full force, and the VIIIth Article being no longer obligatory, we should have attempted to exchange, like General Drummond, the dead for the living.
It is not surprising, therefore, that the British Government, should, in suspecting such an intention, have rejected our Proposition. I was opposed, however, to making the Proposition, not only because I was convinced that it was offered with no such intention, but because I believed it would give to Great Britain the free navigation of the Mississippi, under circumstances, and evidently for an object, which would place it on very distinct grounds from those on which it was placed by the Treaty of 1783.
The whole of the Mississippi being now exclusively within the acknowledged jurisdiction of The United States, a simple renewal of the British right to navigate it, would place that right beyond the reach of the War, and of every other previous circumstance which might have impaired or terminated it; and the power to grant on our part, being now complete, the right to enjoy, on hers, under our grant, must be complete also.
It would be absurd to suppose that any thing impossible was intended, and that Great Britain was to be allowed to navigate the Mississippi precisely as she could have navigated it immediately after the Treaty of 1783; as if her Territories extended to it, and as if Spain was in entire possession of one of its banks and of a considerable portion of the other. The revival of the British right to navigate the Mississippi would be, under existing circumstances, a new and complete grant to her; measured by these circumstances, and thence embracing not only the entire freedom of the whole extent of that River, but the unrestrained access to it across our Territories. If we did not intend
this, we intended nothing which Great Britain could accept; and, whatever else might have been intended, if not at once rejected by her, would hereafter have been the subject of new and endless controversy. When, however, we connected the revival of the navigation of the Mississippi with the revival of the liberty of taking and curing fish within the British jurisdiction, two things, which never before had any relation to each other, we evidently meant, if we acted in good faith, not only to concede, as well as to obtain something, but also to be understood as conceding an equivalent for what we obtained. In thus offering the navigation of the Mississippi, and the access to it through our Territories, as an equivalent for the fishing liberty, we not only placed both on ground entirely different from that in which they respectively stood in the Treaty of 1783, and acted somewhat inconsistently with our own reasoning, relative to the origin and immortality of the latter, but we offered to concede much more than we could hope to gain by the arrangement, with whatever view its comparative effects might be estimated.
From the year 1783 to the commencement of the present War, the actual advantages derived from the fishing privilege by the People of The United States, were, according to the best information that I can obtain on the subject, very inconsiderable, and annually experiencing a voluntary diminution.
It was discovered that the obscurity and humidity of the atmosphere, owing to almost incessant fogs, in the high northern Latitudes, where this privilege was chiefly located, prevented the effectual curing of Fish in those regions, and, consequently, lessened very much the value of the liberty of taking them there. By far the greatest part of the Fish taken by our Fishermen before the present War, was caught in the open Sea or upon our own Coasts, and cured on our own Shores. This branch of the Fisheries has been found to be inexhaustible, and has been pursued with so much more certainty and dispatch than the privileged portion within the British jurisdiction, that it has not only been generally preferred by our Fishermen, but would probably, on longer experience, have been almost universally used by them. It was to be believed, therefore, that a discontinuance of the privilege of taking and curing Fish, within the British jurisdiction, would not, at all, diminish the aggregate quantity taken by the People of The United States, or very materially vary the details of the business. That part of the Fisheries which would still have belonged to us as a Nation, being exhaustless, would afford an ample field for all the capital and industry hitherto employed in the general business of Fishing, or merchandize of Fish, and on that field might the few Fishermen, who had hitherto used the liberty of taking and curing Fish within the jurisdiction of Great Britain, exert their skill and labour without any serious inconvenience. This liberty, liable in a very considerable degree, by the