266 APPENDIX TO BRITISH COUNTER CASE. 



fishing liberties as forfeited by the war, and that they would remain 

 in full force without needing any new grant to confirm them. At 

 this stage of the negotiation, therefore, the American plenipoten- 

 tiaries did actually pursue the first of those three other ways of pro- 

 ceeding, which Mr. Russell, in the postscript to the original of his 

 letter of llth February, 1815, says they might have taken, and to 

 which he adds that he would have assented, namely, to contend, for 

 the continuance of the fishing privilege, notwithstanding the war, 

 without saying any thing about the navigation of the Mississippi. It 

 can not be surprising to find Mr. Russel, within three months after 

 these events, writing privately to the Secretary of State, stating this 

 as a course other than that which we had pursued, and that he would 

 have assented to it if we had ; when it was the very course that we 

 did pursue, and he had assented to it. We did contend, not for the 

 indestructibility, as Mr. Russell terms it, of the treaty of 1783, but that, 

 from its peculiar character, it was not abrogated by the mere occur- 

 rence of war. We never maintained that the treaty of 1783 was inde- 

 structible, or imperishable, but that the rights, liberties, and boundaries, 

 acknowledged by it as belonging to us, were not abrogated by mere 

 war. We never doubted, for example, that we might be compelled to 

 stipulate a new boundary ; but that would have been, not as a conse- 

 quence of mere war, but the effect of conquest, resulting from war. 

 The difference between our principle and that of the British was, that 

 they, considering the rights acknowledged as belonging to us by the 

 treaty, as mere grants, held them as annulled by war alone ; while we, 

 viewing them as rights existing before the treaty, and only acknowl- 

 edged by it, could not admit them to be forfeited without our own 

 assent. Britain might have recovered them by conquest; but that 

 could not be consummated without our acquiescence, tacit or ex- 

 pressed. Mr. Russell, who assented to our principle, and asserted it 

 with us, now says he always thought the British principle was the 

 true one. If the American mission, at that trying time, had acted 

 upon it, he never would have prophesied the convention of October, 

 1818. 



The eighth article of the projet of a treaty, sent by the American 

 commissioners on the 10th of November, offered the boundary which 

 had been proposed in 1807, a line north or south to latitude 49, and 

 westward, on that parallel, as far as the territories of the two coun- 

 tries extended; and said nothing about the Mississippi. But when, 

 on the 26th of November, the British plenipotentiaries returned the 

 projet, with their proposed amendments, they accepted the 49th paral- 

 lel, westward, from the Lake of the Woods, for the boundary, but 

 with the following addition to the article: "And it is further agreed, 

 the subjects of his Britannic majesty shall at all times have access, 

 from his Britannic majesty's territories, by land or inland navigation, 

 into the aforesaid territories of the United States to the river Mis- 

 sissippi, with their goods, effects, and merchandise, and that his 

 Britannic majesty's subjects shall have and enjoy the free navigation 

 of the said river." 



It was to meet this demand that, at the conference of 1st December, 

 the American plenipotentiaries proposed to strike out all those words, 

 and to substitute the amendment contained in the protocol of that 

 conference, already communicated to Congress. It was thus that 

 the relation which Mr. Russell, within three months afterwards, so 



