96 



eurci, or any correctness in his statements against his coileagues» 

 it is proper they should be sifted and examined. 



Let, us, therefore, examine the proposed article in both its 

 parts : — first, as relates to the fishing liberty for us ; and secondly, 

 to the navigation of the Mississippi by the British, And, in order 

 to ascertain the propriety of the principles assumed, and of the 

 measures adopted by the American commissioners, as now in 

 question, let us premise the state of things as they existed^ and the 

 circumstances under which this proposal was offered. 



By the third article of the treaty of 1783, it was agreed, that the 

 people of the United vStates should continue to enjoy the fisheries 

 of Newfoundland and the Bay of St. Lawrence, and at all other 

 places in the sea, where the inhabitants of both countries used at 

 any time theretofore to fish ; and, also, that they should have certain 

 fishing liberties, on all the fishing coast within the British jurisdic- 

 tion of Nova Scotia, Magdalen Islands, and Labrador. The title 

 by which the United States held those fishing rights and liberties 

 was the same. It was the possessory use of the right, or, in Mr. 

 Russell's more learned phrase, of the ^^ jus mermfacnltatis,^^ at 

 any time theretofore as British subjects, and the acknowledgment 

 by Great Britain of its continuance in the people of the United 

 States after the treaty of separation. It was a national right ; and, 

 therefore, as much a 7'ighi, though not so immediate an interest, to 

 the people of Ohio and Kentucky, aye and to the people of Loui- 

 siana, after they became a part of the people of the United States, 

 as it was to the people of Massachusetts and Maine. The latter 

 had always used it, since they had been British colonists, and the 

 coasts had been in British dominions. But, as the settlement of the 

 colonies themselves had not been of time immemorial, it was not, 

 and never was pretended to be, a title by prescription. 



Such was the title of the United States to the fisheries — prior 

 possession, and acknowledgment by the treaty of 1783. 



The commissioners at Ghent had received from the Secretary of 

 State a letter of instruction, dated 25th of June, 1814, containing 

 the following passage : 



•' Information has been received from a quarter deserving of at- 

 " tention, that the late events in France have produced such an 

 " effect on the British government, as to make it probable that a 

 " demand will be made at Gothenburg, to surrender our right to the 

 *^ fisheries, to abandon all trade beyond the Cape of Good Hope, 

 ** and to cede Louisiana to Spain. We cannot believe that such a 

 " demand will be made ; should it be, you will of course, treat it 

 " as it deserves. These rights must not be brought into discussion. 

 " If insisted on, your negotiations will cease." 



Now, it is very true that a majority of the commissioners did 

 constrse these instructions to mean, that the right to the fisheries 

 was not to he surrendered. They did not subtilize, and refine, and 

 inquire, whether they could not surrender a part, and yet not bring 

 the right into discussion, whether we might not give up a liberty. 



