{DUPLICATE.} 71 



Wiih 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) nonew 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, ante 

 cedent to 1783, could not well owe its origin, or its validity, (47) to 

 any compact, concluded at that time ; and we (4*8) 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 se 

 verance of the provisions? of that treaty, that we should have dis 

 covered, 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 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 

 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 support 

 ing a pre-existing title, but as containing a grant entirely new. If 

 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 fish 

 ing privilege remains unimpaired, without a recurrence to imme 

 morial usage ; and if our title to it be well founded on immemorial 

 usage, the treaty may perish without affecting it. To have endea 

 voured 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) can, indeed, 

 derive (59) no better title to this fishing privilege from prescription 

 than from any indestructible quality of the treaty of 1783. 



