The Duplicate Letters, the Fisheries and the Mississippi (etc.)

(PRIVATE.)

Mr. Russell to the Secretary of State.

Paris, 11th February, 1815,

SIR In conformity with the intimation contained in my letter of the (1) 25th of December, I (2) now have the honour to state to you the reasons which induced me to differ from a majority of my colleagues on the expediency of offering an article confirming the British right to the navigation of the Mississippi, and the right of the American people to take and cure fish in certain places within the British jurisdiction.

The (3) proposition of such an article appeared to be inconsistent with our reasoning to prove its absolute inutility. According to this reasoning, no new stipulation was any more necessary, on the subject of such an article, than a new stipulation for the recognition of the sovereignty and independence of the United States.

The article proposed appeared also to be inconsistent with our instructions, as (4) interpreted by us, which forbid us to suffer (5) our right to the fisheries to be brought into discussion; for, it could not be believed that we were left free to (6) stipulate on a subject which we were restrained from (7) discussing, and that an (8) argument, and not an (9) agreement, was to be avoided. If our construction was indeed correct, it might not, perhaps, be difficult to show that we have not, in fact, completely refrained from the interdicted dis

cussion.

At any rate, the proposal of the article in question was objectionable, inasmuch as it was incompatible with the principles asserted by a majority of the mission, and with the construction which (10) this majority had adopted on that part of our instructions which related to the fisheries. If the majority were correct in these principles, and in this construction, it became us to act accordingly; if they were (11) not correst, still it was unnecessary to add inconsistency to error.

I freely confess, however, that I did not accord with the majority, either in their view of the treaty of 1783, whence they derived their principles, or of our instructions; and that my great objection to proposing the article did not arise from an anxiety to reconcile our conduct with our reasoning and declarations.

[DUPLICATE.]

Paris, 11th February, 1822.†

SIR: In conformity with the intimation contained in my letter of the (1) 25th December, I (2) have now the honour to state to you the reasons which induced me to differ from a majority of my colleagues on the expediency of offering an article confirming the British right to the navigation of the Mississippi, and the right of the American people to take and cure fish in certain places within the British jurisdiction.

The (3) proposal of such an article appeared to be inconsistent with our reasoning to prove its absolute inutility.

According to this reasoning, no new stipulation was any more necessary, on the subject of such an article, than a new stipulation for the recognition of the sovereignty and independence of the United States.

The article proposed appeared, also, to be inconsistent with our instructions, as (4) interpreted by us, which forbid us to suffer (5) our right to the fisheries, to be brought into discussion; for, it could not be believed that we were left free to (6) stipulate on a subject which we were restrained from (7) discussing, and that an (8) argument, and not an (9) agreement, was to be avoided. If our construction was, indeed, correct, it might not, perhaps, be difficult to show that we have not, in fact, completely refrained from the interdicted discussion.

At any rate, the proposal of the article in question was objectionable, inasmuch as it was incompatible with the principles asserted by a majority of the mission, and with the construction which (10) that majority had adopted on that part of our instructions which related to the fisheries. If the majority were correct in these principles, and in this construction, it became us to act accordingly. If they were (11) incorrect, still it was unnecessary to add inconsistency to error.

I freely confess, however, that I did not accord with the majority, either in their views of the treaty of 1783, whence they derived their principles, nor of our instructions; and that my great objection to proposing the article did not arise from an anxiety to reconcile our conduct with our reasoning and declarations.

The word (Copy) had here been written by Mr. Russell, and erased. The traces of it are visible on the paper.

+ Note on the date of the Duplicate. This was the date of the paper as delivered by Mr. Russell on the 22d of April, 1822, at the Department of State. It was afterwards altered to 1815, with his approbation, and before it was communicated to the House, as will be seen in the sequel.

I could not believe that the independence of the United States was derived from the treaty of 1783; that the recognition of that independence, by Great Britain, gave to this treaty any peculiar character, or that such character, supposing it existed, would necessarily render this treaty absolutely inseparable in its provisions, and make it one entire and indivisible whole, equally imperishable in all its parts, by any change which might occur in the relations between the contracting parties.

The independence of the United States rests upon those fundamental principles set forth and acted on by the American Congress, in the declaration of July, 1776, and not on any British (12) grant in the treaty of 1783, and its era is dated accordingly.

The treaty of 1783 was merely a (13) treaty of peace, and therefore subject to the same rules of construction as all other compacts of this nature. The recognition of the independence of the United States could not (14) well have given to it a peculiar character, and excepted it from the operation of these rules. Such a recognition, expressed or implied, is always indispensable on the part of every nation with whom we form any treaty (15) whatsoever. France, in the treaty of alliance, long before the year 1783, not only expressly recognised, but engaged (16) effectually to maintain, this independence; and yet this treaty, so far from being considered as possessing any mysterious peculiarity, by which its existence was perpetuated, has, even without war, and although a part of it contained words of (17) perpetuity, and was (18) unexecuted, long (19) since entirely terminated.

Had the recognition of our independence by Great Britain given to the treaty of 1783 any peculiar character, which it did not, (20) still that character could have properly extended to those provisions only (21) which affected that independence. All those general rights, for instance, of jurisdiction, which appertained to the United States, in their quality as a nation, might, so far as that treaty was declaratory of them, have been embraced by (22) such peculiarity, without (23) necessarily extending its influence to mere (24) special commercial liberties and (25) privileges, or to provisions (26) long since executed, not indispensably connected with national sovereignty, (27) or necessarily resulting from it

The liberty to take and cure fish, within the exclusive (28) jarisdiction of (29) Great Britain, was certainly not necessary to perfect the (30) jurisdiction of the (31) United States; and there is no reason to believe that such a liberty was intended to be raised to an equality with the general right of fishing within the common jurisdiction of all nations, which accrued to us as a member of the great national family. On the contrary, the distinction between the special liberty and the general right appears to have been well understood by the American ministers who negotiated the treaty of 1783, and to have been clearly marked by the very import of the terms which they employed. It would evidently have been unwise in them, however ingenious it may be in us, to exalt such a privilege

The treaty of 1783 was merely a (13) treaty of peace, and therefore subject to the same rules of construction as all other compacts of this nature. The recognition of the independence of the United States could not (14) have well given to it a peculiar character, and excepted it from the operation of these rules. Such a recognition, expressed or implied, is always indispensable on the part of every nation with whom we form any treaty (15) whatever. France, in the treaty of alliance, long before the year 1783, not only expressly recognised, but engaged (16) effectually to maintain this independence; and yet this treaty, so far from being considered as possessing any mysterious peculiarity by which its existence was perpe= tuated, has, even without war, and although a part of it contained words of (17) perpetuity and was (18) unexecuted long (19) since terminafed.

Had the recognition of our independence by Great Britain given to the treaty of 1783 any peculiar character, which it did not, (20) yet that character could have properly extended to those provisions only (21) which affected that independence. All those general rights, for instance, of jurisdiction, which appertained to the United States in their quality as a nation, might, so far as that treaty was declaratory of them, have been embraced by (22) that peculi arity without (23) necessarily extending its influence to mere (24) special liberties and (25) privileges, or to provisions (26) long since executed,) not indispensably connected with national sovereignty, (27) nor necessarily resulting from it.

The liberty to take and cure fish within the exclusive (28) jurisdiction of (29) Great Britain, was certainly not necessary to perfect the (30) jurisdiction of the (31) United States. And there is no reason

to believe that such a liberty was intended to be raised to an equality with the general right of fishing within the common jurisdiction of all nations, which accrued to us as a member of the great national family. On the contrary, the distinction between the special liberty and the general right, appears to have been well understood by the American ministers who negotiated the treaty of 1783, and to have been clearly marked by the very import of the terms which they employed. It would evidently have been unwise in them; however ingenious it may be in us, to exalt such a privilege

to the rank of a sovereign right, and thereby to have assumed the unnecessary and inconvenient obligation of considering such a liberty to be an indispensable condition of our national existence, and thus rendering that existence as precarious as the liberty itself. They could not have considered a privilege, which they expressly made to depend, to a very considerable extent, for its continuance, (32) on events and private interests, as partaking of the character and entitled to the duration of the inherent properties of sovereignty. The settlement of the shores might, at any time, have been effected by the policy of the British government, and would have made the assent of British subjects, under the influence of that policy, necessary to the continuance of a very considerable portion of that (33) liberty. They could not have meant thus to place, within the control of a foreign (34) government and its subjects, an (35) integral part, as we now affect to consider this privilege, of our national rights.

It is from this view of the subject that I have been constrained to believe that there was nothing in the treaty of 1783, which could, essentially, distinguish it from ordinary treaties, or rescue it, on account of any peculiarity of character, from the jura belli, or from the operation of those events on which the (36) continuation or termination of such treaties depends. I was, in like manner, compelled to believe, if any such peculiarity belonged to those provisions, in that treaty, which had an immediate connexion with our independence, that it did not necessarily affect the nature of the whole treaty, (37) or attach to a privilege which had no analogy to such provisions, or any relation to that independence.

I know not, indeed, any treaty, or any article of a treaty, whatever may have been the subject to which it related, or the terms in which it was expressed, that has survived a war between the parties, without being specially renewed, by reference or recital, in the succeeding treaty of peace. I cannot, indeed, (38) conceive of the possibility of such a treaty or such an article; for, however clear and strong the stipulations for perpetuity might be, these stipulations themselves would follow the fate of ordinary unexecuted engagements, and require, after a war, the declared assent of the parties for their revival.

We appear, in fact, not to have had an unqualified confidence in our construction of the treaty of 1783, or to have been willing to rest exclusively on its peculiar character our title to any of the rights mentioned in it, and much less our title to the fishing (39) liberty in question. If hostilities could not affect that treaty, (40) or abrogate its provisions, why did we permit the boundaries assigned by it to be brought into discussion, or stipulate for a (41) restitution of all places taken from us during the present war? If such (42) restitution was secured by the mere operation of the treaty of 1783, why did we discover any solicitude for the status ante bellum, and not resist the principle of uti possidetis on that ground?

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