250 APPENDIX TO BRITISH COUNTER CASE. 



The independence of the United States rests upon those funda- 

 mental principles set forth and acted on by the American Congress, 

 in the declaration of July, 1776, and not on any British grant in the 

 treaty of 1783, and its era is dated accordingly. 



The treaty of 1783 was merely a treaty of peace, and therefore sub- 

 ject to the same rules of construction as all other compacts of this 

 nature. The recognition of the independence of the United States 

 could not well have given to it a peculiar character, and excepted it 

 from the operation of these rules. Such a recognition, expressed or 

 implied, is always indispensable on the part of every nation with 

 whom we form any treaty whatsoever. France, in the treaty of alli- 

 ance, long before the year 1783, not only expressly recognised, but 

 engaged effectually to maintain, this independence; and yet this 

 treaty, so far from being considered as possessing any mysterious 

 peculiarity, by which its existence was perpetuated, has, even without 

 war, and although a part of it contained words of perpetuity and was 

 unexecuted, long since entirely terminated. 



Had the recognition of our independence by Great Britain given 

 to the treaty of 1783 any peculiar character, which it did not, still 

 that character could have properly extended to those provisions only 

 which affected that independence. All those general rights, for in- 

 stance, of jurisdiction, which appertained to the United States in 

 their quality as a nation, might, so far as that treaty was declaratory 

 of them, have been embraced by such peculiarity, without necessarily 

 extending its influence to mere special commercial liberties and privi- 

 leges, or to provisions long since executed, not indispensably con- 

 nected with national sovereignty, or necessarily resulting from it. 



The liberty to take and cure fish, within the exclusive jurisdiction 

 of Great Britain, was certainly not necessary to perfect the jurisdic- 

 tion of the United States ; and there is no reason to believe that such 

 a liberty was intended to be raised to an equality with the general 

 right or fishing within the common jurisdiction of all nations, which 

 accrued to us as a member of the great national family. On the con- 

 trary, the distinction between the special liberty and the general 

 right appears to have been well understood by the American minis- 

 ters who negotiated the treaty of 1783, and to have been clearly 

 marked by the very import of the terms which they employed. It 

 would evidently have been unwise in them, however ingenious it may 

 be in us, to exalt such a privilege to the rank of a sovereign right, and 

 thereby to have assumed the unnecessary and inconvenient obliga- 

 tion of considering such a liberty to be an indispensable condition of 

 our national existence, and thus rendering that existence as precarious 

 as the liberty itself. They could not have considered a privilege, 

 which they expressly made to depend, to a very considerable extent, 

 for its continuance, on the events and private interests, as partaking 

 of the character and entitled to the duration of the inherent prop- 

 erties of sovereigntjr. The settlement of the shores might, at any 

 time, have been effected by the policy of the British government, and 

 would have made the assent 01 British subjects, under the influence 

 of that policy, necessary to the continuance of a very considerable 

 portion of that liberty. They could not have meant thus to place, 

 within the control of a foreign government and its subjects, an in- 

 tegral part, as we now affect to consider this privilege, of our national 

 rights. 



