74 [PRIVATE^ 



pending on the will Of such State, (?9) and is consequently imprescripti- 

 pie. Aa independent (80*) title can be derived only from treaty. 



I conceive, therefore, that (80) our claim to the fishing privilege, 

 .from immemorial usage, is not only unsupported by the (81) fact, 

 but cannot, in (82) effect, result from such usage. 



I have, (83) from this view of the subject, been led to conclude, 

 that the treaty of 1783, in relation to the fishing liberty, is abrogat 

 ed by the war ; that this liberty is totally destitute of support from 

 prescription ; (84) and that we are, consequently, left without any title 

 to it whatsoever. For, I cannot prevail upon myself to seek for 

 such a title in the relative situation of the parties, at the time of ne 

 gotiating the treaty of 1783, and contend, according to the insinua 

 tion contained! in our letter to you of the (85) 21st of December, that 

 the jurisdiction of Great Britain over the colonies, assigned to her 

 in America, was a grant (86) from the United States, and that the 

 United States, in making this grant, (87) reserved to themselves the 

 privilege in question. Such a pretension, however lofty, is so in 

 consistent with (88) the circumstances of the case, and with any sober 

 construction which can be given to that treaty, that I shall, I trust, 

 be excused from seriously examining its validity. 



Having thus gtated some of the reasons which induced me to differ 

 in opinion from a majority of my colleagues, relative to the cha 

 racter of the treaty of 1783, as well as with regard to every other 

 foundation on which they were (89) disposed to rest our title to the 

 fishing privilege, I shall now proceed to explain the (90) causes 

 which influenced me to dissent from them in the interpretation of 

 UT (91) instructions. 



These instructions forbid us to permit our (92) rights to the trade 

 beyond the (93) Cape of Good Hope, to the fisheries, and to Louisiana} to 

 be brought into discussion. I conceived that this prohibition ex* 

 tended to the general rights only, which affected our sovereignty, 

 and resulted from it, and not (94) to mere special liberties and privi 

 leges which had no relation to that sovereignty, either as to its na 

 ture or extent. 



The right (95) relating to the trade beyond the Cape of Good 

 Hope, was the right which belonged to us as an independent (96) na 

 tion, in common with all other independent nations, and not the permission of 

 trading to those parts of the East Indies which were within the ex 

 clusive jurisdiction of Great Britain. In like manner, the right to 

 the fisheries, contemplated by our instructions, was, (97) 1 conceived, 

 the right, common to all nations, to use the open sea for fishing as well 

 as for navigation, and (98) not to the liberty to fish (99) and cure fish 

 within the territorial limits of any foreign state. The right to 

 Louisiana, (100) which was not to be brought into discussion, was the 

 right to the empire and domain of that region, and (101) not to the 

 right of excluding Great Britain from (102) the navigation of the Mis 

 sissippi. 



How far we conformed to this instruction, with regard to the ge 

 neral right to Louisiana, it is not necessary for me here to inquire ; 



