DOCUMENTS BEARING ON THE TEEATY OP GHENT, 1814. 253 



153 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 the whole original thir- 

 teen United States, or of the United States now, including Louisiana ; 

 or how far the immemorial usage of the people of Boston can estab- 

 lish a prescriptive right in the people of ~ New-Orleans. I trust I 

 have said enough to show that prescription is inapplicable to the 

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



Had the United States, as an independent nation, enjoyed, from 

 time immemorial, the fishing privilege in question, still, from the 

 nature of this privilege, no prescriptive right could have thence been 

 established. A right to fish, or to trade, or to do any other act or 

 thing within the exclusive jurisdiction of a foreign state, is a simple 

 power, a right of mere ability, (jus meres facultatis,) depending on 

 the will of such states, and is consequently imprescriptible. An in- 

 dependent title can be derived only from treaty. 



I conceive, therefore, that our claim to the fishing privilege, from 

 immemorial usage, is not only unsupported by the fact, but cannot, 

 in effect, result from such usage. 



I have, from this view of the subject, been led to conclude, that the 

 treaty of 1783, in relation to the fishing liberty, is abrogated by the 

 war; that this liberty is totally destitute of support from prescrip- 

 tion; and that we are, consequently, left without any title to it what- 

 soever. For I cannot prevail upon myself to seek for such a title in 

 the relative situation of the parties, at the time of negotiating the 

 treaty of 1783, and contend, according to the insinuation contained 

 in our letter to you of the 21st of December, that the jurisdiction of 

 Great Britain over the colonies assigned to her in America, was a 

 grant from the United States, and that the United States, in making 

 this grant, reserved to themselves the privilege in question. Such a 

 pretension, however lofty, is so inconsistent with 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 stated some of the reasons which induced me to differ 

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

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

 foundation on which they were disposed to rest our title to the fish- 

 ing privilege, I shall now proceed to explain the causes Avhich in- 

 fluenced me to dissent from them in the interpretation of our 

 instructions. 



These instructions forbid us to permit our rights to the trade be- 

 yond the Cape of Good Hope, to the fisheries, and to Louisiana, to be 

 brought into discussion. I conceived that this prohibition extended 

 to the general rights only, which affected our sovereignty, and re- 

 sulted from it, and not to mere special liberties and privileges which 

 had no relation to that sovereignty, either as to its nature or extent. 



The right relating to the trade beyond the Cape of Good Hope, 

 was the right which belonged to us as an independent nation, in com- 

 mon 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 



