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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
terms in which it was granted, to be curtailed by the Government and Subjects of a Foreign State; already growing into voluntary disuse by our own Citizens, on account of the difficulties inseparable from it, and absolutely incapable of extension; was totally unnecessary to us for subsistence or occupation, and afforded, in no way, any commercial facility or political advantage. This privilege, too, while it was thus of little or no utility to us, cost Great Britain literally nothing.
The free navigation of the Mississippi, with the necessary access to it, is a grant of a very different character. If it was not heretofore used by Great Britain, it was, perhaps, because she did not consider herself entitled to it, or because the circumstances of the moment suspended its practical utility. The Treaty of 1783 stipulated for her the navigation of this River, under the presumption that her Territories extended to it, and, of course, could not intend to give her an access to it through our Territories. The British Possessions to the Westward of Lake Erie, being almost entirely unsettled, rendered, perhaps, the free navigation of the Mississippi, for the moment, of little advantage to her, particularly as her right to reach it was at least equivocal; and as, by another Treaty, she could carry on trade with our Indians.
This navigation might, indeed, for a long time to come, be of little use to her for all the legitimate purposes of transit and intercourse; but every change that could take place in this respect must increase its importance to her; while every change in the fishing liberty would be to the disadvantage of The United States.
The freedom of the Mississippi, however, is not to be estimated by the mere legitimate uses that would be made of it. The unrestrained and undefined access which would have been inferred from the Article which we proposed, would have placed in the hands of Great Britain and her Subjects all the facilities of communication with our own Citizens, and with the Indians inhabiting the immense regions of our Western Territory. It is not in the nature of things that these facilities should not have been abused for unrighteous purposes. A vast field for contraband and intrigue would have been laid open, and our Western Territories would have swarmed with British Smugglers and British Emissaries. The Revenue would have been defrauded by the illicit introduction of English merchandise; and the lives of our Citizens, and the security of a valuable portion of our Country, exposed to Indian hostilities, excited by an uncontrouled British influence. If our Instructions to guard against such an influence forbid us to renew the British liberty to trade with our Indians, we certainly violated the spirit of those Instructions in offering the means of exercising that influence, with still greater facility and effect than could result from that liberty.
What was there in the fishing liberty, either of gain to us, or loss to Great Britain, to warrant, in consideration of it, a grant to her of such means of fraud and annoyance? What justice or equality was there, in exposing to all the horrors of savage warfare the unoffending Citizens of an immense tract of Territory, not at all benefited by the fishing privilege, merely to provide for the doubtful accommodation of a few Fishermen, in a remote quarter, entirely exempt from the danger? Such have been the reasons which induced me to differ from a majority of my Colleagues with regard to the Article in question, and which I trust will be thought sufficient, at least, to vindicate my motives.
The unfeigned respect which I feel for the integrity, talents, and judgment of those Gentlemen, would restrain me from opposing them on slight grounds, and a.deference for their opinions makes me almost fear that I have erred in dissenting from them on the present occasion. I can but rejoice, however, that the Article, as proposed by us, was rejected by Great Britain, whatever were her reasons for rejecting it, whether, as above suggested, she suspected some tacit reservation, or want of faith on our part, or supposed, from the price we at once bid for the fishing privilege, that we overrated its value, and might concede for it even more than the navigation of the Mississippi, with all its accessary advantages.
We are still at liberty to negotiate for that privilege in a Treaty of Commerce, should it be found expedient, and to offer for it an equivalent, fair in its comparative value, and just in its relative effects. In any other way, I trust, we shall not consent to purchase its renewal. I have the honour to be, &c.
The Hon. J. Q. Adams,
P.S. My argument to demonstrate the abrogation of the Treaty of 1783 by the present War, and the consequent discontinuance of the fishing privilege, will, I trust, not be ascribed to any hostility to those who were interested in that privilege. I have been always ready, and am still ready, to make every sacrifice for the preservation of that privilege which its nature and utility can justify; but I have conscientiously believed, that the free navigation of the Mississippi was pregnant with too much mischief to be offered, indirectly, under our construction of the Treaty, or directly, as a new equivalent for the liberty of taking and curing fish within the British jurisdiction.
We had three other ways of proceeding:
1st. To contend for the indestructibility of the Treaty of 1783, thence inferring the continuance of the fishing privilege, without saying anything about the navigation of the Mississippi, which would have reserved our right of contesting this navigation, on the grounds I have mentioned, specially applicable to it.
2dly. To have considered the Treaty at an end, and offered a reasonable equivalent, wherever it might be found, for the fishing privilege.
3dly. To have made this liberty a sine quâ non of Peace, as embraced by the principle of status ante bellum.
To either of these propositions I would have assented, but I could not consent to grant or revive the British Right to the navigation of the Mississippi, in order to procure or preserve the fishing liberty.
Mr. Russell to the Secretary of State.-(Duplicate.)
SIR, Paris, 11th February, 1815. IN conformity with the intimation contained in my Letter of the 25th December, I have now 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 proposal 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 that 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 incorrect, still it was unnecessary to add inconsistency to error.
I freely confess, however, that I did not accord with the majority, either in their views of the Treaty of 1783, whence they derived their principles, nor of our Instructions; and that my great objection to proposing the Article did not arise from an 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 æra 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 have well 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 whatever. France, in the Treaty of Alliance, long before the year 1783, not only expressly recognized, but engaged effeetually 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 a part of it contained words of perpetuity and was unexecuted, long since terminated.
Had the recognition of our Independence by Great Britain given to the Treaty of 1783 any peculiar character, which it did not, yet 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 that peculiarity without necessarily extending its influence to mere special liberties and privileges, or to provisions long since executed, not indispensably connected with National Sovereignty, nor 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