72 [PRIVATE. J 



Prescription (60) appears to me to be inapplicable to the (61) parties 

 and to the (62) subject, and to be defective both in (63) 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 (64) by the citizens of an independent repub 

 lic, residing within the exclusive jurisdiction of that republic. The 

 people of the United States, as such, could have claimed no special 

 privilege within the dominions of any foreign power from immemo 

 rial 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 seven 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, ori 

 ginally constituting the United States, even in their colonial condi 

 tion, acquire against their sovereign any right from long usage 

 (65) or mere lapse of time, (66) (nullum tempus regi occuvrit.) The Bri 

 tish sovereign was always competent to regulate (67) and restrain his 

 colonies in their commerce and intercourse with each other, when 

 ever and however he might think proner, and had he forbid his 

 Subjects in the province of (68) Massachusetts, to fish (C9) and dry and 

 cure fish in the bays, harbours, and creeks of Labrador, which, by 

 the way, had (70) not immcmorially belonged to him, it is not to be ima 

 gined 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 perma 

 nent and independent right to those subjects themselves and, 

 (71) a fortiori, no such right to the citizens of the United States, 

 claiming under a (72) 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 iAlassachusetts was the practice of (73) the whole original 

 thirteen United States, or of the United States now, including Lou 

 isiana ; or how far the immemorial usage of the people of Boston 

 can establish a prescriptive right in the people of New-Orleans. 

 1 trust 1 have said enough to show that prescription is (74) inapplica 

 ble 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 (75) could have thence 

 been established. A right to fish, or to trade, or to do (76) any other 

 actor thing within the exclusive jurisdiction of a foreign state, is a 

 (77) simple power, a right (78) of mere ability, (jus merce facultatis,) de- 



