DOCUMENTS BEABING ON THE TEEATY OF GHENT, 1814. 269 



lost by non user. He ought also to have seen, what Vattel no less 

 clearly lays down, that although a nation may appropriate to itself a 

 fishery upon its own coasts and within its own jurisdiction, yet. " if 

 it has once acknowledged the common right of other nations to come 

 and fish there, it can no longer exclude them from it ; it has left that 

 fishery in its primitive freedom, at least with respect to those who 

 have been in possession of it." And he cites the herring fishery on 

 the coast of England, as being common to them with other nations, 

 because they had not appropriated it to themselves, from the 

 beginning. 



In perusing the letter of Mr. Russell, whether original or dupli- 

 cate, I cannot but reflect with gratitude to Providence upon the 

 slender thread by which the rights of this nation to the fisheries were 

 in fact suspended at the negotiation of Ghent. Positive and precise 

 as our instructions were, not to surrender them, if Mr. Russell had 

 disclosed at Ghent the opinions avowed in either version of his 

 letter, if he had so broadly asserted and so pertinaciously main- 

 tained his conviction of the utter worthlessness of the fisheries, in 

 comparison with the exclusion of the British from a mere phantom 

 of right to navigate the Mississippi, which they had always enjoyed 

 without use; without benefit to themselves or injury to us; if he had 

 so learnedly disserted to prove that the treaty of 1783 was totally and 

 absolutely abrogated by the war; if he had so thoroughly inverted 

 the real state of the question, and painted it in such slowing colours 

 as a sacrifice of deep, real interests of the West to a shallow, imagi- 

 nary interest of the East; if. with that preseverance which is the 

 test of sincerity, he had refused to sign the proposal determined upon 

 by the majority of his collegues, and given them notice that he should 

 transmit to his government the vindication of himself and his motives 

 for differing from them ; and, above all, if another mind could have 

 been found in the mission, capable of concurring with him in those 

 views, it would at least have required of the majority an inflexibility 

 of fortitude, beyond that of any trial by which they were visited, to 

 have persevered in their proposal. Had they concurred with him in 

 his opinion of the total abrogation of the treaty of 1783, by the mere 

 fact of the war, the fisheries in the Gulf of St. Lawrence, on the 

 coast of Labrador, and to an indefinite extent from the 'Island of 

 Newfoundland, were lost to the United States forever, or at least 

 till the indignant energy of the nation should have recovered, by con- 

 quest, the rights thus surrendered to usurpation. In notifying to us 

 that the British government intended not to renew the grant of the 

 fisheries within British jurisdiction, they had not said what extent 

 they meant to give to these terms. They had said they did not mean 

 to extend it to the right of the fisheries, generally, or in the open seas 

 enjoyed by all other nations. (See Letter of the American Commis- 

 sioners to the Secretary of State of 12th August, 1814- Waifs State 

 Papers, vol.. 9, p. 321.} But there was not wanting historical expo- 

 sition of what Great Britain understood by her exclusive jurisdiction 

 as applied to these fisheries. In the 12th article of the treaty of 

 Utrecht, by which Nova Scotia or Acadia had been ceded by France 

 to Great Britain, the cession had been made " in such ample manner 

 and form, that the subjects of the most Christian King shall 

 162 hereafter be excluded from all kind of fishing in the said seas. 



