104 



eel, informing them that the American government did not consider 

 the fishing liberties as forfeited by the war, and that they would re 

 main in full force without needing any new grant to confirm them. 

 At this stage of the negotiation, therefore, the American plenipo 

 tentiaries did actually pursue the first of those three other ways of 

 proceeding, which Mr. Russell, in the postscript to the original of 

 his letter of llth February, 1815, says they might have taken, and 

 to which he adds that he would have asserted, namely, to contend 

 for the continuance of the fishing privilege, notwithstanding the 

 war, without saying any thing about the navigation of the Missis 

 sippi. It cannot but be surprising to find Mr. Russell, within three 

 months after these events, writing privately to the Secretary of 

 State, stating this as a course other than that which we had pur 

 sued, and that he would have assented to it if we had ; when it was 

 the very course that we did pursue, and he had assented to it. We 

 did contend, not for the indestructibility, as Mr. Russell terms it, of 

 the treaty of 1783, but that, from its peculiar character, it was not, 

 abrogated by the mere occurrence of war. We never maintained 

 that the treaty of 1783 was indestructible, or imperishable, but that 

 the rights, liberties, and boundaries, acknowledged by it as belong 

 ing to us, were not abrogated by mere war. We never doubted, 

 for example, that we might be compelled to stipulate a new bound 

 ary ; but that would have been, not as a consequence of mere war, 

 but the effect of conquest, resulting from war. The difference be 

 tween our principle and that of the British was, that they, consider 

 ing the rights acknowledged as belonging to us by the treaty, as 

 mere grants, held them as annulled by war alone ; while we, view 

 ing them as rights existing before the treaty, and only acknowledg 

 ed by it, could not admit them to be forfeited without our own as 

 sent. Britain might have recovered them by conquest ; but that 

 could not be consummated without our acquiescence, tacit or ex 

 pressed. Mr. Russell, who assented to our principle, and asserted 

 it with us, now says he always thought the British principle was the 

 true one. If the American mission, at that trying time, had acted 

 upon it, he never would have prophesied the convention of October, 

 1813. 



The eighth article of the projet of a treaty, sent by the Ameri 

 can commissioners on the 10th of November, offered the bounda 

 ry which had been proposed in 1807, a line north or south to lati 

 tude 49, and westward, on that parallel, as far as the territories of 

 the two countries extended ; and said nothing about the Mississip 

 pi. But when, on the 26th of November, the British plenipoten 

 tiaries returned the projet, with their proposed amendments, they 

 accepted the 49th parallel, westward, from the Lake of the Woods, 

 for the boundary, but with the following addition to the article : 

 &quot; And it is further agreed, the subjects of his Britannic majesty 

 * shall at all times have access, from his Britannic majesty s terri- 

 * tories, by land or inland navigation, into the aforesaid territories 

 &quot; of the United States to the river Mississippi, with their goods, 



