252 APPENDIX TO BRITISH COUNTER CASE. 



and in the same sentence and from the same fact, appear also to in- 

 fer, that it was not to be forfeited by war any more than any other 

 of the rights of our independence, making it thus one of these rights, 

 and of course, according to our doctrine, dependent on that treaty. 



There might have been nothing incomprehensible in this mode of 

 reasoning, had the treaty recognised this privilege to be derived from 

 prescription, and confirmed it on that ground. The treaty has, how- 

 ever, not the slightest allusion to the past, in reference to this privi- 

 lege, but regards it only with a view to the future. The treaty, 

 therefore, cannot be construed as supporting a pre-existing title, but 

 as containing a grant entirely new. If we claim, therefore, under 

 the treaty, we must renounce prescription, and if we claim from 

 prescription, we can derive no aid from the treaty. If the treaty 

 be imperishable in all its parts, the fishing privilege remains unim- 

 paired without a recurrence to immemorial usage; and if our title 

 to it be well-founded on immemorial usage, the treaty may perish 

 without affecting it. To have endeavoured to support it on both 

 grounds, implies that we had not entire confidence in either, and to 

 have proposed a new article, indicates la distrust of both. 



It is not, as I conceive, difficult to show that we cannot, indeed, 

 derive a better title to this fishing privilege, from prescription, than 

 from any indestructible quality of the treaty of 1783. 



Prescription appears to me to be inapplicable to the parties and to 

 the subject, and to be defective both in 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 by the citizens of an independent republic, 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 immemorial 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, originally constituting the United 

 States, even in their colonial condition, acquire against their sov- 

 ereign any right from long usage or mere lapse of time, (nullum 

 tempus regi occurrit). The British sovereign w y as always com- 

 petent to regulate and restrain his colonies 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 Massachu- 

 setts, to fish and dry and cure fish in the bays, harbours, and creeks 

 of Labrador, which, by the way, had not immemorially belonged to 

 him, it is not to be imagined that they would have conceived them- 

 selves 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 independent right to those subjects 

 themselves, and, a fortiori, no such right to the citizens of the United 

 States, claiming under a different estate and in a different capacity. 

 Great Britain might, indeed, as well prescribe for the prerogatives 



