DOCUMENTS BEARING ON THE TREATY OF GHENT, 1814. 279 



fishery, as well without as within the special territorial jurisdiction, 

 had been the common property of the British empire: so had been 

 the whole territory to which it had been incidental. By the treaty 

 of separation, the territory was divided, and two separate sovereign 

 jurisdictions arose. The fishery bordered upon both. The juris- 

 dictions were marked out by the boundary line agreed upon by the 

 second article of the treaty. The fishery was disposed of in the third 

 article. As common property, it was still to be held in common. 

 As a possession, it was to be held by the people of the United States, 

 as it had been held before. It was not like the lands partitioned out 

 by the same treaty, a corporeal possession, but in the technical lan- 

 guage of the English law, an incorporeal hereditament, and in that 

 of the civil law, a right of mere faculty, consisting in the power and 

 liberty of exercising a trade, the places in which it is exercised being 

 occupied only for the purposes of the trade. Now the right or 

 liberty to enjoy this possession, or to exercise this trade, could no 

 more be affected or impaired by a declaration of war, than the right 

 to the territory of the nation. The interruption to the exercise of 

 it during the war, could no more affect the right or liberty, than the 

 occupation by the enemy of territory could affect the right to that. 

 The right to territory could be lost only by abandonment or renunci- 

 ation in the treaty of peace; by agreement to a new boundary line, 

 or by acquiescence in the occupation of the territory by the enemy. 

 The fishery liberties could be lost, only by express renunciation of 

 them in the treaty, or by acquiescence in the principle that they were 

 forfeited, which would have been a tacit renunciation. 



I hope it wil not be deemed an assertion of infallibility, when I 

 say, that I present this argument to my country, both as to the na- 

 ture of our rights and liberties in the fisheries, and as to the peculiar 

 character of the treaty by which they were recognised, with a perfect 

 conviction that it cannot be answered. But if I am mistaken in that, 

 sure I am, that it never has been answered, either by the British 

 Government or by Mr. Russell. 



If admitted, it leaves the question, whether the treaty of 1783 was 

 or was not abrogated by the late war? a mere question of useless 

 speculation, or of national pride. That British statesman and jurists 

 should manifest some impatience, and seize upon any pretext to 

 cause that treaty to disappear from the archives of their national 

 muniments, is not at all surprising. That an American statesman 

 should partake of the same anxiety, is not so natural, though it ma} 7 

 be traced to the same system of public law, by which the commerce 

 and fisheries of the colonies, before the Eevolution, were supposed to 

 be held at the mere pleasure of the British crown. It is not neces- 

 sary to deny that the treaty of 1783 was, as a national compact, ab- 

 rogated by the late war, so long as with the assertion of its being so 

 abrogated, is not coupled the assertion that any one right or liberty, 

 acknowledged in it as belonging to the people of the United States, 

 was abrogated with it. But when the British government or Mr. 

 Russell assert that all the other rights and liberties acknowledged 

 and secured to the United States by that treaty, survived its abroga- 

 tion, except one portion of the property in the fisheries, stipulated in 

 one half of one article, I say there is nothing either in the nature of 

 the liberty contested, or in the article by which it is recognised, that 

 will warrant their distinction; that the whole treaty was one com- 



