pending on the will of such state, (79) and is consequently imprescriptible. An independent (80*) title can be derived only from treaty.

I conceive, therefore, that (80) our claim to the fishing privilege.. from immemorial usage, is not only unsupported by the (81) fact, but cannot, in (82) effect, result from such usage.

I have, (83) from this view of the subject, been led to conclude. that the treaty of 1783, in relation to the fishing liberty, is abrogated by the war; that this liberty is totally destitute of support from prescription; (84) and that we are, consequently, left without any title to it whatsoever. For, I cannot prevail upon myself to seek for such a title in the relative situation of the parties, at the time of negotiating the treaty of 1783, and contend, according to the insinua. tion contained in our letter to you of the (85) 21st of December, that the jurisdiction of Great Britain over the colonies, assigned to her in America, was a grant (86) from the United States, and that the United States, in making this grant, (87) reserved to themselves the privilege in question. Such a pretension, however lofty, is so inconsistent with (88) the circumstances of the case, and with any sober construction which can be given to that treaty, that I shall, I trust, be excused from seriously examining its validity.

Having thus stated some of the reasons which induced me to differ in opinion from a majority of my colleagues, relative to the character of the treaty of 1783, as well as with regard to every other foundation on which they were (89) disposed to rest our title to the fishing privilege, I shall now proceed to explain the (90) causes which influenced me to dissent from them in the interpretation of Our (91) instructions.

These instructions forbid us to permit our (92) rights to the trade beyond the (93) Cape of Good Hope, to the fisheries, and to Louisiana, to be brought into discussion. I conceived that this prohibition extended to the general rights only, which affected our sovereignty, and resulted from it, and not (94) to mere special liberties and privileges which had no relation to that sovereignty, either as to its na

ture or extent.

The right (95) relating to the trade beyond the Cape of Good Hope, was the right which belonged to us as an independent (96) nation, in common with all other independent nations, and not the permission of trading to those parts of the East Indies which were within the exclusive jurisdiction of Great Britain. In like manner, the right to the fisheries, contemplated by our instructions, was, (97) 1 conceived, the right, common to all nations, to use the open sea for fishing as well as for navigation, and (98) not to the liberty to fish (99) and cure fish within the territorial limits of any foreign state. The right to Louisiana, (100) which was not to be brought into discussion, was the right to the empire and domain of that region, and (101) not to the right of excluding Great Britain from (102) the navigation of the Mississippi.

How far we conformed to this instruction, with regard to the general right to Louisiana, it is not necessary for me here to inquire;

ing on the will of such state, (79) and conseqently imprescriptible. An independent (80*) right can be derived only from treaty.

I conceive, therefore, that (80) a claim to the fishing privilege, from immemorial usage, is not only unsupported by the (81) fact, but cannot, in (82) effect, result from such usage.

I have, (83) in this view of the subject, been led to conclude that the treaty of 1783, in relation to the fishing liberty, is abrogated by the war, and that this liberty is totally destitute of support from prescription (84) and, consequently, that we are left without any title to it whatsoever. For, I cannot prevail upon myself to seek for such a title in the relative situation of the parties at the time of negotiating the treaty of 1783, and contend, according to the insinuation contained in our letter to you, of the (85) 25th of December last, that the jurisdiction of Great Britain over the colonies assigned to her, in America, was a grant (86) of the United States, and that the United States, in making this grant, (87) reserved to themselves the privilege in question. Such a pretension, however lofty, is so inconsistent with (88) the real circumstances of the case, and with any sober construction which can be given to that treaty, that I shall, I trust, be excused from seriously examining its validity.

Having thus stated some of the reasons which induced me to differ in opinion from a majority of my colleagues, relative to the character of the treaty of 1783, as well as with regard to every other foundation on which they were (89) disposed, inconsistently, to rest our title to the fishing privilege, I shall now proceed to explain the (90) reasons which influenced me to dissent from them in the interpretation of our (91) instructions relative to that privilege.

These instructions forbid us to permit our (92) rights to the trade beyond the (93) Cape of Good Hope, to the fisheries, and to Louisiana, to be brought into discussion. I conceived that this prohibition extended to the general rights only, which affected our sovereignty and resulted from it, and not (94) the special liberties and privileges which had no relation to that sovereignty, either as to its nature or extent.

The right, (95) relative to the trade beyond the Cape of Good Hope, was the right which belonged to us as an independent (96) nation, and not to the permission of trading to those parts of the East Indies which were within the exclusive jurisdiction of Great Britain. In like manner, the right to the fisheries, contemplated by our instructions, was, (97) I conceive, the right to use the open sea for fishing as well as for navigation, and (98) not the liberty to fish, (99) and to cure fish, within the territorial limits of any foreign state. The right to Louisiana, (100) which, by those instructions, were not to be brought into discussion, was the right to the empire and domain of that region, and (101) not the right of excluding Great Britain from (102) the free navigation of the Mississippi.

How far we conformed to this instruction, with regard to the general right to Louisiana, it is not necessary for me here to inquire;

but certainly the majority believed (103) themselves permitted to offer a very explicit proposition with regard to the navigation of its principal (104) river. I believed, with them, that we were so permitted, and that we were likewise permitted to offer a proposition relative to the fishing liberty, and had the occasion required it, to make proposals concerning the trade to the British East Indies. I was persuaded, that treating relative to these privileges, or discussing the obligation or expediency of granting or witholding them, respectively, violated in no way our instructions, or affected the general rights which we were forbidden to bring into discussion.

Considering, therefore, the fishing liberty to be entirely at an end, without a new stipulation for its revival, and believing that we were entirely free to discuss the terms and conditions of such a stipulation, I did not object to the article proposed by us because any article on the subject was unnecessary, or contrary to our instructions, but I objected specially to that article, because, by conceding (105) in it the free navigation of the Mississippi, (106) we offered, in my estimation, for the fishing privilege, a price much above its value.

In no view of the subject could I discover any (107) analogy between the two objects, and the only reason for connecting them and making them mutual equivalents for each other, appeared to be because they were both found in the treaty of 1783.

If that treaty was abrogated by the war, as I consider it to have been, any connexion between its parts must have ceased, and the liberty of navigating the Mississippi by British subjects must, at least, be completely at an end; for it will not, I trust, be attempted to continue it by a (108) prescriptive title, or to consider it as a (109) reservation, made by the United States, from any grant of sovereignty which, at the treaty of peace, they accorded to Great Britain. If, indeed, it was such a reservation, it must have been intended for (110) our benefit, and, of (111) course, could be no equivalent for the fishing (112) privilege. If it is considered as a reservation made by Great Britain, it will reverse (113) the facts assumed by us in relation to that privilege.

The (114) third article of the treaty of 1783, respecting the fisheries, and the (115) eighth article of that treaty, respecting the Mississippi, had not the slightest reference to each other, and were placed as remote, the one from the other, as the limits of that treaty could well admit. Whatever, therefore, (116) was the cause of inserting the fishing liberty, whether it was a voluntary and gratuitous grant on the part of Great Britain, or extorted from her as a condition on which the peace depended, it could have had no relation (117) to the free navigation of the Mississippi. Besides, the article relative

but, certainly, the majority believed (103) themselves to be permitted, their own construction to the contrary notwithstanding, to offer a very expli. cit proposition, with regard to the navigation of its principal (104) river; now, this offer I considered, for the reasons just suggested, not to be a violation of the instructions in question, but I considered it to be against both the letter and the spirit of our instructions of the 15th of April, 1813. By these instructions we were explicitly and implicitly directed "to avoid any stipulation which might restrain the United States from excluding the British traders from the navigation of the lakes and rivers, exclusively within our own jurisdiction." This instruction applied with the greater force to the Mississippi, because, as it is believed, it was the only river to which it could apply.

While I believed, therefore, that we were permitted to offer a proposition, relative to the fishing liberty; and that, in treating concerning this liberty, or in discussing our claim to it, we in no way violated our instructions, nor affected the general rights which we were forbidden to bring into discussion; I did believe, and do still believe, that we were expressly and unequivocally forbidden to offer or to renew a stipulation for the free navigation, by the British, of the Mississippi, a river within our exclusive jurisdiction.

Considering, therefore, the fishing liberty to be entirely at an end, without a new stipulation for its revival; and believing that we were entirely free to discuss the terms and conditions of such a stipulation, I did not object to the article proposed by us, because any article on the subject was unnecessary, or contrary to our instructions, but I objected specially to that article, because, by conceding (105) in it, to Great Britain, the free navigation of the Mississippi, (106) we not only directly violated our instructions, but we offered, in my estimation, a price much above its value, and which could not justly be given.

In no view of the subject, could I discover any (107) analogy of relation beetween the two objects; and the only reason for connecting them, and making them mutual equivalents for each other, appeared to be, because they were both found in the treaty of 1783. If that treaty was abrogated by the war, as I consider it to have been, any connection between its parts must have ceased, and the liberty of navigating the Mississippi, by British subjects, must, at least, be completely at an end; for it will not, I trust, be attempted to continue it by a (108) prescriptive title, or to consider in as a (108) reservation made by the United States from any grant of sovereignty, which, at the treaty of peace, they accorded to Great Britain. If, indeed, it were such a reservation, it must have been intended for (110) our benefit, and of (111) course, no equivalent for the fishing (112) privilege, likewise for our benefit. If it is considered as a reservation made by Great Britain, it will reverse (113) all the facts assumed by us in relation to that privilege.

The (114) third article of the treaty of 1783, respecting the fisheries, and the (115) eighth of that treaty, respecting the Mississippi, had not the slightest reference to each other, and were placed as remote, the one from the other, as the limits of that treaty could well admit; whatever, therefore, (116) might have been the cause of inserting the fishing liberty, whether it was a voluntary and gratui tous grant on the part of Great Britain, or extorted from her as a condition, on which the peace depended, it could have had no relation (117) with the free navigation of the Mississippi. Besides, the

to this river must, from the evident views of the parties at the time, from (118) their supposed relations to each other, and from their known relations to a third (119) power, as to this river, have been considered of mutual and equal advantage, and furnished no subject for compensation or adjustment in any other provision of that treaty. Both parties believed that this river touched the territories of both, and that, of course, both had a right to its navigation. As Spain possessed both banks of this river, to a considerable distance from its mouth, and one of its banks nearly throughout its whole extent, both parties had an interest in uniting to prevent that power from obstructing its navigation. Had not the article been intended to engage the parties in relation to Spain, they (120) would, probably, have limited it to the navigation of the river (121) as far as their own territories extended on it, and not have stipulated for this navigation to the ocean, which necessarily carried it through the exclusive territories of Spain.

If the circumstances had been, in fact, such as the parties at the time believed them to be, and with a view to which they acted; or had these circumstances subsequently experienced no radical change; Great Britain would have gained now no more than she would have granted by the (122) revival of the article in relation to (123) the Mississippi, and would not, any more than in 1783, have acknowledged any equivalent to be conferred by it for our liberty relative to the fisheries. The circumstances, however, assumed by the parties, at the time, in relation to Great Britain, and from which her rights were deduced, have not only, in part, been discovered not to have existed, but those which did exist have been entirely changed by subsequent events. It has (124) been ascertained that the territories assigned to Great Britain, no where, in fact, reached the Mississippi; and the acquisition of Louisiana by the United States (125) has forever removed the Spanish jurisdiction that river.

The whole consideration, therefore, on the part of Great Britain, whether derived from her territorial rights, or from her part of the reciprocal obligations relative to Spain, having entirely failed, our engagements, entered into on account of that consideration, may be fairly construed to have terminated with it.

In this view of the subject, Great Britain could have had no title to the navigation of the Mississippi, even if a war had not taken place between the parties. To renew, therefore, the claims of Great Britain, under that article, subject to this construction, would be granting her nothing; and to renew that article, independent of this construction, and without any reference to the circumstances that attended its origin, in 1783, or to the events which have since occurred in relation to it, would be granting her advantages not only entirely (126) uni-lateral, as it relates to the article itself, but, (127) as I believe, of much greater importance than any which we could derive from the liberty relative to the fisheries.