[pUPLieATE.'J 75 



ing on the will of such state, (79) and conseqently imprcscnptible. An 

 independent (So*) right can be derived only from treaty. 



I conceive, therefore, that ^80) a claim to the fishing privilege, 

 from immemorial usage, is not only unsupported by the (81) /ar/, 

 but cannot, in (82) effect, result from ?uch usage. 



I have, (83) in this view of the subject, been led to conclude that 

 the treaty of 1783, in relation to the iishing liberty, is abrogated by 

 the war, and that this liberty is totally destitute of sui)port from 



prescription (84) and, consequently, that we are left without any title 



to it whatsoever. For, I cannot prevail upon myself to seek for 

 such a title in the relative situation of the parties at the time of 

 negotiating the treaty of 1 783, and contend, according to the insinua- 

 tion contained in our letter to you, of the (85^ 25th of December 

 fast, that the jurisdiction of Great Britain over the colonies assign^ 

 ed to her, in America, was a grant (86) of the United States, and 

 that the United States, in making this grant, (87) reserved to themselves 

 the privilege in question. Such a pretension, however lofty, is so 

 inconsistent with (88) the real circumstances of the case, and with any 

 sober construction which can be given to that treaty, that I shall, 

 I trust, be excused from seriously examining its validity. 



Having thus stated some of the reasons which induced me to dif- 

 fer in opinion from a majority of my colleagues, relative to the 

 character of the treaty of 1783, as well as with regard to every 

 other foundation on which they were (89)di6poEed, inconsistently, to rest 

 our title to the fishing privilege, I shall now proceed to explain the 

 (90) reasons which influenced me to dissent from them in the inter- 

 pretation of our (91) instructions relative to that priviiege. 



These instructions forbid us to permit our (92) rights to xlna 

 trade beyond the (93) Cape of Good Hope, to the Jisheries , and to Louisiann, 

 to be brought into discussion. I conceived that this prohibition ex- 

 tended to the general rights only, which affected our sovereignty 

 and resulted from it, and not (94) the special liberties aad privileges 

 which had no relation to that sovereignty, either as to its nature or 

 extent. 



The right, (95) relative to the trade beyond the Cape of Good 

 Hope, was the right which belonged to us as en independent 

 (96) nation, and not to the permission of trading to those parts of the 

 East Indies which were within the exclusive jurisdiction of Great 

 Britain. In like manner, the right to the fisheries, contemplated 

 by our instructions, was, (97) I conceive, the right to use the open sea 

 for fishing as well as for navigation, and (98) not the liberty to fish. 

 (P9) and to cure fish, within the territorial limits of any foreign state. 

 The right to Louisiana, (iOO) which, by those instructions, were not to be, 

 brought into discussion, was the right to the empire and domain of 

 that region, and (lol) not the right of excluding Great Britain from 

 (102) the free navigation of the Mississippi. 



How fiir we conformed to this instruction, with regard to thege- 

 acral right to Louisiana, it is not accessary for tne here to inquire; 



