268 APPENDIX TO BRITISH COUNTER CASE. 



There was certainly an inconsistency on the part of the British 

 government, in claiming a right to navigate the Mississippi, while 

 asserting that the treaty of 1783 was abrogated by the war : and when 

 pressed by us to say on what principle they claimed it without offering 

 for it an equivalent, they said the equivalent was, their acceptance of 

 the 49th parallel of latitude for the northwestern boundary, instead of 

 the line, to which they were entitled by the treaty of 1783 to the Mis- 

 sissippi. As they gave up the line to the river, the} 7 said they had 

 a right to reserve its navigation, and access to it for that purpose. 

 They had said the same thing to Messrs. Monroe and Pinkney in 

 1807; and the principle had been assented to by them, with the 

 subsequent sanction of President Jefferson. Still the whole argu- 

 ment leaned upon the continuing validity of the treaty of 1783; for 

 the boundary line, as well as the Mississippi navigation, was null 

 and void, if that treaty was abrogated. We replied to them, that, 

 although we were willing to agree to the 49th parallel of latitude 

 for the boundary, and thought it of mutual interest that the line 

 should be fixed, we were yet not tenacious of it; we could not agree 

 to their article of mutual surrender, with a pledge of future negotia- 

 tion; but we would consent to omit the boundary article itself, and 

 leave the whole subject for future adjustment. And to this they 

 finally agreed. 



The advantage of this to us was, that we came out of the war, 

 without having surrendered the fishing liberties, as they had been 

 enjoyed before, and stipulated at the treaty of 1783. We were still 

 free to maintain, and we did, after the conclusion of the peace, effect- 

 ively maintain, the existence of the right, notwithstanding the inter- 

 vening war. The British government still insisted that the treaty 

 of 1783 was abrogated by the war; but when called upon to show, 

 why then they treated the United States as an independent nation, 

 and why in the treaty of Ghent they had agreed to four several com- 

 missions to ascertain the boundaries, " according to the true intent 

 and meaning of that same treaty of 1783," they finally answered, that 

 they considered our Independence, and the boundaries, as existing 

 facts, like those of other nations, without reference to their origin. 

 This left nothing but a dispute about words ; for we applied the same 

 principle to the fishing liberties of the third article, which they con- 

 ceded with regard to the acknowledgment of Independence and to the 

 boundaries. They considered the whole treaty of 1783 as a British 

 grant. We considered it as a British acknowledgement. They never 

 drew the nice distinction, attempted by Mr. Russell, between a perish- 

 able and imperishable part of the treaty, or admitted that it consisted 

 of rights which they could not, and of privileges which they cor. d 

 resume without our consent. By their principle, they might ha7e 

 resumed the whole : and when they notified to us at Ghent, that they 

 did not intend to grant us again the fishing liberties within their 

 exclusive jurisdiction, but that they meant to leave us the right of 

 fishing in the open sea, they gave us distinctly enough to understand 

 that they were treating us with magnanimity, in not resuming the 

 whole. There was in truth no difference in the principle. And Mr. 

 Russell, in consulting his Vattel, to find that fishing rights were jura 

 mercB facultatis, and therefore imprescriptible, ought to have seen 

 what that writer very explicitly says, not that they were rights which 

 could not be acquired by long usage, but rights which could not be 



