190 



«' other hand being reserved to British subjects to approach their 

 " shores, for the purpose of fishing, in this reciprocal treaty." 



In the repHes of the ministerial members to these objections, 

 there is not a word attempting to contradict them, or hinting at a 

 distinction in the tenure of the title between the right and the li- 

 berty. 



Such was the nature of the rights and liberties of the people of 

 the United States in the fisheries, and such the peculiar character 

 of the treaty of 1783, by which they had been recognised. The 

 princijde asserted by the American plenipotentiaries at Ghent ; dis- 

 avowed and combated by Mr. Russell, in his letter of 11 th Febru- 

 ary, 1815, and now treated by him as the dream of a visionary, 

 was, that these rights and liberties, thus recognised, could not be 

 forfeited by a war, and that no new stipulation was necessary to 

 secure them. The whole fishery, as well without as within the 

 special territorial jurisdiction, had been the common property of 

 l»;he British empire : so had been the whole territory to which it 

 had been incidental. By the treaty of separation, the territory 

 was divided, and two separate sovereign jurisdictions arose. The 

 fishery bcrdered upon both. The jurisdictions were marked out 

 by the boundary line agreed upon by the second article of the 

 treaty. The fitr.ery was disposed of in the third article. As com- 

 mon property, it was still to be held in common. As a possession, 

 4t was to be held by the people of the United States, as it had been 

 held before. It was not like the lands partitioned out by the same 

 treaty, a corporeal possession, but in the technical language of the 

 English law, an incorporeal hereditament, and in that of the civil 

 law, a right of mere faculiij, consisting in the power and liberty of 

 exercising a trade, the places in which it is exercised being occu- 

 pied only for the purposes of the trade. Now the right or liberty 

 to enjoy this possession, or to exercise this trade, could no more be 

 affected or impaired by a declaration of war, than the right to the 

 territory of the nation. The interruption to the exercise of it dur- 

 ing the War, could no more affect the right or liberty, than the oc- 

 cupation by the enemy of territory could affect the right to that. 

 The riyht to territory could be lost only by abandonment or renun- 

 ciation in the treaty of peace ; by ;ij;reement to a new boundary 

 line, or by acquiescence in the occupation of the territory by the 

 enemv. The fishery liberties could be lost, only by express re- 

 nunciation of them in the treaty, or by acquiescence in the princi- 

 ple that they were forfeited, which would have been a tacit renun- 

 ciation. 



I hope it will not be deemed an assertion of infallibility, when I 

 !?ay, that I present this argument to my country, both as to the na- 

 ture of our rights and liberties in the fisheries, and as to the pecu- 

 liar character of the treaty by which they were recognised, with a 

 perfect conviction that it cannot be answered. But if I am mistaken 

 in that, sure I am, that it never has been answered, either by the 

 British government or by Mr. RusselK 



