104 



ed, informing them that the American government did not consider 

 the tishing liberties as forfeited by the war, and that they would re- 

 main in full force without needing any new grant to confirm them. 

 At this sta2;e of the negotiation, therefore, the American plenipo- 

 tenti .ries did actually pursue the first of thos- three other ways of 

 proceeding, which Mr. Russell, in the postscript to the original of 

 bis letter of 11th February, 1815, says they miglu have taken, and 

 to which he adds that he would have asserted, namely, to contend 

 for the continuance of the fishing privilege, notwithstanding the 

 war, without saying any thing about the navii;a»ion of the Missis- 

 sippi. It cannot but be surprising to find Mr. Russell, within three 

 months after these events, writing privately to the Secretary of 

 State, stating this as a course other than that which we had pur- 

 sued, and that he would have assented to it if we had ; when it was 

 the very course that we did pursue, and he had assented to it. We 

 did contend, not for the indestructibility, as Mr. Russell terms it, of 

 the treaty of 1783, but that, from its peculiar character, it was not 

 abrogated by the mere occurrence of war. We never maintained 

 that the treaty of 1783 was indestructible, or imperishable, but that 

 the rights, liberties, and boundaries, acknowledged by it as belong- 

 ing to us, were not abrogated by mere war. We never doubted, 

 for example, that we might be compelled to stipulate a new bound- 

 ary ; but that would have been, not as a consequence of mere war, 

 but the effect of conquest, resulting from war. The difference be- 

 tween our principle and that of the British was, that they, consider- 

 ing the rights acknowledged as belonging to us by the treaty, as 

 mere grants^ held them as annulled by war alone ; while we, view- 

 ing them as rights existing before the treaty, and only acknowledg- 

 ed by it, could not admit them to be forfeited without our own as- 

 sent. Britain might have recovered them by conquest ; but that 

 could not be consummated without our acquiescence, tacit or eX' 

 pressed. Mr. Russell, who assented to our principle, and asserted 

 it with us, now says he always thought the British principle was the 

 true one. If the American mission, at that trying time, had acted 

 upon it, he never would have prophesied the convention of October, 

 1818. 



The eighth article of the projet of a treaty, sent by tlje Ameri- 

 can commissioners on the 10th of November, offered the bounda- 

 ry which had been proposed in 1807, a line north or south to lati-r 

 tude 49, and westward, on that parallel, as far as the territories of 

 the two countries extended ; and said nothing about the Mississip- 

 pi. But when, on the ^6ih of November, the British plenipoten- 

 tiaries returned the projet, with their proposed amendments, they 

 accepted the 49th parallel, westward, from the Lake of the Woods, 

 for the boundary, but with the following addition to the article : 

 '' And it is further agreed, the subjects of his Britannic majesty 

 *' shall at all times have access, from his Britannic majesty's terri- 

 *' lories, by land or inland navigation, into the aforesaid territories 

 '• of the United fcjtates to the river Mississippi, with their goods, 



