70 [PRIVATE.&quot;]&quot; 



With regard to the fishing privilege, we distinctly stated to you, 

 in our letter of the (43) 2 1st of December, that, (44) &quot;at the time of 

 the treaty of 1783, it was (45) no new grant, we having always before 

 that time enjoyed it,&quot; 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) W as 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) unneces-^ 

 sary to attempt to give a kind of charmed existence to the treaty oi 

 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 seve 

 rance of the provisions of that treaty, that we should have disco 

 vered, ourselves, (52) a radical difference between them, making the 

 fishing (5s) privilege depend on immemorial usage, and, of course, dis 

 tinct in its nature (54) and origin from the rights resulting from our 

 independence. 



We, indeed, throw some obscurity over this subject when we de 

 clare to you that this privilege was always enjoyed by us before the 

 treaty of 1783, thence inferring that it was not granted by that trea 

 ty, 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-exist 

 ing title, but as containing a grant entirely new. If we claim, there 

 fore, under the treaty, we must renounce prescription, and if we 

 claim from prescription, we can derive no aid from the treaty. If 

 tlie treaty be imperishable in all its parts, the fishing privilege re 

 mains 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 oi* 

 both. 



It is not, as I conceive, difficult to show that we (58) cannot, in 

 deed, derive (59) a better title to this fishing privilege, from pre 

 scription, than from any indestructible quality of the treaty of 1783 



