DOCUMENTS BEARING ON THE TREATY OP GHENT, 1814. 281 



All articles which have been executed, may indeed be said to be ab- 

 rogated by the execution itself. The transaction between the parties 

 is consummated. In the case of a cession of territory, when the pos- 

 session of it has been delivered, the article of the treaty is no longer 

 a compact between the parties, nor can a subsequent war between 

 them operate in any manner upon it. 



So of all articles the purport of which is the acknowledgment by 

 one party of a pre-existing right belonging to another. The engage- 

 ment of the acknowledging party is consummated by the ratification 

 of the treaty. It is no longer an executory contract; but a perfect 

 right united with a vested possession, is thenceforth in one party, 

 and the acknowledgment of the other is in its own nature irrevocable. 

 As a bargain, the article is extinct; but the right of the party in 

 whose favour it was made, is complete, and cannot be affected by a 

 subsequent war. 



A grant of a facultative right, or incorporeal hereditament, and spe- 

 cifically of a right of fishery, from one sovereign to another, is an 

 article of the same description. It is analogous to a cession of terri- 

 tory, and is in fact a partial and qualified cession. The right is con- 

 summated by the ratification of the treaty. The possession is vested 

 by the exercise of the faculty. Mere Avar between the parties, can 

 neither impair the right of one party nor effect the revocation of the 

 grant by the other. 



So that whether the third article of the treaty of 1783 be considered 

 as an acknowledgment of pre-existing liberties, or as a grant of them, 

 to be exercised within British jurisdiction, it was in its nature perma- 

 nent and irrevocable, liable, under no circumstances whatever, to be 

 annulled by the will of Great Britain, and capable of being lost to the 

 United States in no other manner than by their own express renuncia- 

 tion or tacit abandonment. 



******* 



[Mr. Adams quoted a letter of his own written from Ghent, 26th 

 December, 1814, to one of the American negotiations of the 1783 

 treaty, as follows :] 



. . . There is, as you must remember, in the third article of the 

 treaty of 1783, a diversity of expression by which the general fisheries 

 on the Banks are acknowledged as our right, but these fishing privi- 

 leges within the British jurisdiction, are termed liberties. The British 

 government consider the latter as franchises forfeited ipso facto by 

 the war, and declared they would not grant them anew without an 

 equivalent. Aware that by this principle they, too, had forfeited 

 their right to navigate the Mississippi, recognized in the same treaty 

 of 1783, they now demanded a new provision to secure it to them 

 again. 



We were instructed not to suffer our right to the fisheries to be 

 brought into discussion ; we had no authority to admit any discrimi- 

 nation between the first and the last parts of the third article of the 

 treaty of 1783. No power to offer or agree to an equivalent either for 

 the rights or the liberties. I consider both as standing on the same 

 footing: both as the continuance of franchises always enjoyed, and 

 the difference in the expressions only as arising from the operation 

 of our change from the condition of British subjects to that of a sov- 

 ereign people, upon an object in one part of general, and in the other 

 of special, jurisdiction. The special jurisdiction had been that of our 



