107 



for we applied the same principle to the fishing liberties of the 

 third article, which they conceded with regard to the acknowledge- 

 ment of Independence and to the boundaries. They considered 

 the whole treaty of 1783 as a British grant. We considered it as 

 a British acknowledgement. They never drew the nice distinction, 

 attempted by Mr. Russell, between a perishable and imperishable 

 part of the treaty, or admitted that it consisted of rights which they 

 could not, and of privileges which they could resun;e without our 

 consent. By their principle, they might have resumed the whole : 

 and when they notified to us at Ghent, that they did not intend to 

 grant us again the fishing liberties within their exclusive jurisdic- 

 tion, but that they meant to leave us the right of fishing in the 

 open sea, they gave us distinctly enough to understand that they 

 were treating us with magnanimity, in not resuming the whole. 

 There was in truth no difference in the principle. And Mr. Rus- 

 sell, in consulting his Vattel, to find that fishing rights were jura 

 •merce facultatis^ and therefore imprescriptible, ought to have seea 

 what that writer very explicitly says, not that they were rights 

 which could not be acquired by long usage, but rights which could 

 not be lost by non user. He ought also to have seen, what V^attel 

 4J0 less clearly lays down, that although a nation may appropriate 

 to itself a fishery upon its own coasts and within its own jurisdic- 

 tion, yet, "if it has once acknowledged the common right of other 

 *' nations to come and fish there, it can no longer exclude them 

 *' from it; it has left that fishery in its primitive freedom, at. 

 *' least with respect to those who have been in possession of it.'* 

 And he cites the herrinji fishery on the coast of England, as being 

 common to them with other nations, because they had not appro- 

 priated it to themselves, yro?/i the heghr.img. 



In perusing the letter of Mr. Russell, whether original or du- 

 plicate, 1 cannot but reflect with gratitude to Providence upon the 

 slender thread by which the rights of this nation to the fisheries 

 were in fact suspended at the negotiation of Ghent. Positive and 

 precise as our instructions were, not to surrender them, if Mr. 

 Russell had disclosed at Ghent the opinions avowed in either ver- 

 sion of his letter, if he had so broadly asserted and so pertinacious- 

 ly maintained his conviction of the utter worthlessness of the fish- 

 eries, in comparison with the exclusion of the British from a mere 

 phantom of right to navigate the Mississippi, which they had al- 

 ways enjoyed without use ; without benefit to themselves or injury 

 to us ; if he had so learnedly disserted to prove that the treaty of 

 1783 was totally and absolutely abrogated by the war ; if he had 

 so thoroughly inverted the real state of the question, and painted 

 it in such glowing colours as a sacrifice of deep, real interests of 

 the West to a shallow, imaginary interest of the East ; if, with 

 that perseverance which is the test of sincerity, he had refused to 

 sign the proposal determined upon by the majority of his colleagues, 

 and given Ihcni notice that he should transmit to his government 

 the vindieation of hijn^elf and his motives for differing ^Vom them ; 



