DOCUMENTS BEARING ON THE TREATY OP GHENT, 1814. 259 



Thirdly. To have made this liberty a sine qua non of peace, as 

 embraced by the principle of status ante bellum. 



To either of these propositions I would have assented, but I could 

 not consent to grant to revive the British right to the navigation of 

 the Mississippi, in order to procure or preserve the fishing liberty. 



No. 29. 1822, May 3: Extract from Mr. J. Q. Adams 9 Answer to Mr. 



Russell. 

 ******* 



By the third article of the treaty of 1783, it was agreed, that the 

 people of the United States should continue to enjoy the fisheries of 

 Newfoundland and the Bay of St. Lawrence, and at all other places 

 in the sea, where the inhabitants of both countries used at any time 

 theretofore to -fish; and also, that they should have certain fishing liber- 

 ties, on all the fishing coast within the British jurisdiction of Nova 

 Scotia, Magdalen Islands, and Labrador. The title by which the 

 United States held those fishing rights and liberties were the same. 

 It was the possessory use of the right, or, in Mr Russell's more 

 learned phrase, of the " jus merecefacultatis" at any time theretofore 

 as British subjects, and the acknowledgment by Great Britain of its 

 contiivuance in the people of the United States after the treaty of 

 separation. It was a national right; and, therefore, as much a right. 

 though not so immediate an interest, to the people of Ohio and Ken- 

 tucky, aye and to the people of Louisiana, after they became a part 

 of the people of the United States, as it was to the people of Massa- 

 chusetts and Maine. The latter had always used it, since they had 

 been British colonists, and the coasts had been in British dominions. 

 But as the settlement of the colonies themselves had not been of time 

 immemorial, it was not, and never was pretended to be, a title by 

 prescription. 



Such was the title of the United States to the fisheries prior pos- 

 session, and acknowledgment by the treaty of 1783. 



The commissioners at Ghent had received from the Secretary of 

 State a letter of instruction, dated 25th of June, 1814, containing the 

 following passage: 



Information has been received from a quarter deserving of attention, that 

 the late events in France have produced such an effect on the British govern- 

 ment, as to make it probable that a demand will be made at Gothenburg, to 

 surrender our right to the fisheries, to abandon all trade beyond the Cape of 

 Good Hope, and to cede Louisiana to Spain. We cannot believe that such a 

 demand will be made; should it be, you will of course, treat it as it deserves. 

 These rights must not be brought into discussion. If insisted on, your negotia- 

 tions will cease. 



Now, it is very true that a majority of the commissioners did con- 

 strue these instructions to mean, that the right to the fisheries was 

 not to ~be surrendered. They did not subtilize, and refine, and inquire, 

 whether they could not surrender a part, and yet not bring the right 

 into discussion, whether we might not give up a liberty, and yet retain 

 a right; or whether it was an argument, or an fif/reement, that was 

 forbidden. They understood that the fisheries were not to be sur- 

 rendered. 



