260 APPENDIX TO BRITISH COUNTER CASE. 



The demand made by the British government was first advanced 

 in an artful and ensnaring form. It was by assuming the principle 

 that the right had been forfeited by the war, and by notifying the 

 American commissioners, as they did at the first conference, " that the 

 British government did not intend to grant to the United States, 

 gratuitously, the privileges formerly granted by treaty to them, of 

 fishing within the limits of the British sovereignty, and of using the 

 shores of the British territories for purposes connected with the fish- 

 eries." Now to obtain the sum*ender of thus much of the fisheries, 

 all that the British plenipotentiaries could possibly desire, was, that 

 the American commissioners should acquiesce in the principle, that 

 the treaty of 1783 was abrogated by the war. Assent to this principle 

 would have been surrender of the right. Mr. Russell, if we can make 

 any thing of his argument, would have assented, and surrendered, 

 and comforted himself with the reflection, that, as the right had not 

 been brought into discussion, the instructions would not have been 

 violated. 



But, however clearly he expresses this opinion in his letter, and 

 however painfully he endeavours to fortify it by argument, he never 

 did disclose it to the same extent at Ghent. The only way in which 

 it was possible to meet the notification of the British plenipoten- 

 tiaries, without surrendering the rights which it jeopardized, was by 

 denying the principle upon which it was founded. This was done by 

 asserting the principle, that the treaty of Independence of 1783 was 

 of that class of treaties, and the right in question of the char- 

 157 acter, which are not abrogated by a subsequent war; that the 

 notification of the intention of the British government not to 

 renew the grant, could not affect the right of the United States, 

 which had not been forfeited by the war; and that, considering it as 

 still in force, the United States needed no new grant from Great 

 Britain to revive, nor any new article to confirm it. 



This principle I willingly admit was assumed and advanced by 

 the American commissioners at my suggestion. I believed it not only 

 indispensably necessary to meet the insidious form in which the 

 British demand of surrender had been put forth ; but sound in itself, 

 and maintainable on the most enlarged, humane, and generous prin- 

 ciples of international law. It was asserted and maintained by the 

 American plenipotentiaries at Ghent; and if, in the judgment of Mr. 

 Russell, it suffered the fishing liberty to be brought into discussion, 

 at least it did not surrender the right. 



It was not acceded to by the British plenipotentiaries. Each party 

 adhered to its asserted principle ; and the treaty was concluded with- 

 out settling the interest involved in it. Since that time, and after 

 the original of Mr. Russell's letter of the llth of February. 1815, was 

 written, the principle asserted by the American plenipotentiaries at 

 Ghent, has been still asserted and maintained through two long and 

 arduous negotiations with Great Britain, and has passed the ordeal 

 of minds of no inferior ability. It has terminated in a new and 

 satisfactory arrangement of the great interest connected with it. and 

 in a substantial admission of the principle asserted by the American 

 plenipotentiaries at Ghent; by that convention of 20th October, 

 1818, which, according to the duplicate of Mr. Russell's letter, he 

 foresaw in February, 1815, even while writing his learned disserta- 



