(DUPLICATE.] 73 



Prescription (60) appears 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, (64) claimed by 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 imme 

 morial usage, in 1783, when the longest duration of their own ex 

 istence 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 memonam 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, origin- 

 ally constituting the United States, even in their colonial condition, 

 acquire against their sovereign any right from long usage, (65) or th 

 mere lapse of time, (66) (nullum tempusregi occurrit.) The British SO- 

 vereign was always competent to regulate (67) or to restrain them in 

 their commerce and intercourse with each other, whenever and 

 however he might think proper. And had he forbid his subjects, 

 in the province of (68) Massachusetts Bay, to fish, (69) and to dry and 

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

 by the way, had (70) not immemorially belonged to him, it is not to be 

 imagined 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 permanent and independ 

 ent right to those subjects themselves, and, (7l; afortiori, no such 

 right to the citizens of the United States, claiming, under a i72)rfy~ 

 ferent 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 (73) the people of the 

 whole original thirteen 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 1 have said enough to show that prescription is 

 (74) inapplicable to the parties. 



It is, also, I conceive, inapplicable to the subject. Had the 

 United States, as an independent nation, enjoyed, from time imme 

 morial, the fishing privilege in question, still, from the nature of 

 this privilege, no prescriptive right (75) would have thence been 

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

 thing, within the exclusive jurisdiction of a foreign state, is a (77) 

 parrcr, a right (?8; of mere ability, jus merse facultatis, depend- 



