193 



)y substitutes the term privilege, for that of liberhj, which is tht- 

 vvord used in the article, and the substitution is itself an indication 

 of weakness in his argument. An eminent English writer mark? 

 the distinction between the meaning of these words, in the follow 

 ing manner : 



" Liberty, in the general sense, is an unalienable right, which 

 " belongs to man as a rational and responsible agent : it is not a 

 " claim, for it is set above all question and all condition ; nor is it 

 '* R privilege, for it cannot be exclusively granted to one being, nor 

 " unconditionally be taken away from another." 



Crabb''s English Synonymes — word right. 



Such is the purport of the word liberty, in its general sense ; 

 and by the application of it in the third article of the treaty to the 

 power which the Americans were to enjoy within the British juris- 

 diction, to carry on the fishery, it is not to be presumed that the 

 negotiators of the treaty mistook the word, or that they used it as 

 in any manner synonymous with a privilege. 



Were it then true, as Mr. Russell asserts, that war dissolves all 

 treaties, without exception, and that the treaty of 1783 was totally 

 dissolved by the war of 1812, it wonld not follow that the fishing 

 liberty within British jurisdiction, stipulated by the third article of 

 the treaty, was abrogated with it. As a liberty existing before the 

 war, the right to it could not be forfeited by war. The suspension 

 of its exercise during the war, could no more afiect the right, than 

 the occunation of territory by the enemy could affect the right to 

 that. 



But the doctrine itself, that war dissolves all treaties, and every 

 article of every treaty, without exception, is not correct. It has 

 been very solemnly disclaimed by the United Slates, in the following 

 terms of the 24th article of their first treaty with Prussia : 



" And it is declared, that neither the pretexce that war dis- 

 *' solves all treaties, nor any other, whatever, shall be considered 

 *' as annulling or suspending this and the next preceding article ; 

 " but on the contrary, that the state of war, is precisely that for 

 " which they are provided ; and during which they are to be as 

 *' sacredly observed as the most acknowledged articles in the law 

 " of nature or nations." 



Of this treaty, Dr. Franklin and Mr. Jefferson were two of the 

 negotiators on the part of the United States, and Frederick the se- 

 cond was the sovereign with whom it was negotiated. It not only 

 contradicts the doctrine that war dissolves all treaties, without ex- 

 ception, but fixes a stigma upon it as di pretence usually resorted to 

 for the purpose of disguising or of palliating a violation of good 

 faith. 



The pretence that war dissolves all treaties, is itself a remnant of 

 that doctrine of the barbarous ages, that faith is not to be kept with 

 enemies, and that no compact made in war is obligatory. The mo- 

 flern writers upon the laws of nations, have exploded this opinion^ 



