254 APPENDIX TO BBITISH COUNTEB CASE. 



the fisheries, contemplated by our instructions, was, I conceived, the 

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

 as for navigation, and not to the liberty to fish and cure fish within 

 the territorial limits of any foreign state. The right to Louisiana, 

 which was not to be brought into discussion, was the right to the 

 empire and domain of that region, and not to the right of excluding 

 Great Britain from the navigation of the Mississippi. 



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

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

 but certainly the majority believed themselves permitted to offer a 

 very explicit proposition with regard to the navigation of its prin- 

 cipal river. I believed, with them, that we were so permitted, and 

 that we were likewise permitted to offer a proposition relative to the 

 fishing liberty, and had the occasion required it, to make proposals 

 concerning the trade to the British East Indies. I was persuaded 

 that treating relative to these privileges, or discussing the obligation 

 or expediency of granting or withholding them, respectively, violated 

 in no way our instructions, or affected the general rights which we 

 were forbidden to bring into discussion. 



Considering, therefore, the fishing liberty to be entirely at an end, 

 without a new stipulation for its revival, and believing that we were 

 entirely free to discuss the terms and conditions of such a stipula- 

 tion, I did not object to the article proposed by us because any 

 article on the subject was unnecessary, or contrary to our instructions, 

 but I objected specially to that article, because, by conceding in it 

 the free navigation of the Mississippi, we offered, in my estimation, 

 for the fishing privilege, a price much above its value. 



In no view of the subject could I discover any analogy between 

 the two objects, and the only reason for connecting them and making 

 them mutual equivalents for each other, appeared to be because they 

 were both found in the treaty of 1783. 



If that treaty was abrogated by the war, as I consider it to have 

 been, any connection between its parts must have ceased, and the 

 liberty of navigating the Mississippi by British subjects must, at 

 least, be completely at an end; for it will not, I trust, be attempted 

 to continue it by a prescriptive title, or to consider it as a reservation, 

 made by the United States, from any grant of sovereignty which, at 

 the treaty of peace, thev^ accorded to Great Britain. If, indeed, it 

 was such a reservation, it must have been intended for our benefit, 

 and, of course, could be no equivalent for the fishing privilege. If it 

 is considered as a reservation made by Great Britain, it will reverse 

 the facts assumed by us in relation to that privilege. 



The third article of the treaty of 1783, respecting the fisheries, and 

 the eighth article of that treaty, respecting the Mississippi, had not 

 the slightest reference to each other, and were placed as remote, the 

 one from the other, as the limits of that treaty could well admit. 

 Whatever, therefore, was the cause of inserting the fishing lib- 

 erty, whether it was a voluntary and gratuitous grant on the 

 154 part of Great Britain, or extorted from her as a condition on 

 which the peace depended, it could have had no relation to the 

 free navigation of the Mississippi. 



Besides, the article relative to this river must, from the evident 

 views of the parties at the time, from their supposed relations to 

 each other, and from their known relations to a third power, as to 



