Page images
PDF
EPUB

the Boundary, and thought it of mutual interest that the line should be fixed, we were yet not tenacious of it: we could not agree to their Article of mutual surrender, with a pledge of future Negotiation; but we would consent to omit the Boundary Article itself, and leave the whole subject for future adjustment. And to this they finally agreed.

The advantage of this to us was, that we came out of the War, without having surrendered the Fishing liberties, as they had been enjoyed before, and stipulated at the Treaty of 1783. We were still free to maintain, and we did, after the conclusion of the Peace, effectively maintain, the existence of the right, notwithstanding the intervening War. The British Government still insisted that the Treaty of 1783 was abrogated by the War: but when called upon to show, why then they treated The United States as an Independent Nation, and why in the Treaty of Ghent they had agreed to four several Commissions to ascertain the Boundaries, “ according to the true intent and meaning of that same Treaty of 1783, they finally answered, that they considered our Independence, and the Boundaries, as existing facts, like those of other Nations, without reference to their origin. This left nothing but a dispute about words; for we applied the same principle to the Fishing liberties of the IIId Article, which they conceded with regard to the acknowledgment of Independence and to the Boundaries. They considered the whole Treaty of 1783 as a British grant. We considered it as a British acknowledgment. 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, resume 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 jurisdiction, 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. Russell, in consulting his Vattel, to find that Fishing rights were jura merce facultatis, and therefore imprescriptible, ought to have seen 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 usage. He ought also to have seen, what Vattel no less clearly lays down, that, although a Nation may appropriate to itself a Fishery upon its own Coasts and within its own jurisdiction, 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 haye been in possession of it." And he cites the Herring Fishery on

the Coast of England, as being common to them with other Nations, because they had not appropriated it to themselves, from the beginning.

In perusing the Letter of Mr. Russell, whether Original or Duplicate, I 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 version of his Letter, if he had so broadly asserted, and so pertinaciously maintained his conviction of, the utter worthlessness of the Fisheries, in comparison with the exclusion of the British from a mere phantom of right to navigate the Mississippi, which they had always 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 perseverence which is the test of sincerity, he had refused to sign the proposal determined upon by the majority of his Col leagues, and given them notice that he should transmit to his Government the vindication of himself and his motives for differing from them; and, above all, is another mind could have been found in the Mission, capable of concurring with him in those views, it would at least have required of the majority an inflexibility of fortitude, beyond that of any trial by which they were visited to have persevered in their proposal. Had they concurred with him in his opinion of the total abrogation of the Treaty of 1783, by the mere fact of the War, the Fisheries in the Gulf of St. Lawrence, on the Coast of Labrador, and to an indefinite extent from the Island of Newfoundland, were lost to The United States forever, or at least till the indignant energy of the Nation should have recovered, by conquest, the rights thus surrendered to usurpation. In notifying to us that the British Government intended not to renew the grant of the Fisheries within British jurisdiction, they had not said what extent they meant to give to these terms. They had said they did not mean to extend it to the right of the Fisheries, generally, or in the open Seas, enjoyed by all other Nations. (See Letter of the American Commissioners to the Secretary of State, of 12th August, 1814. Wait's State Papers, Vol. 9, p. 321.) But there was not wanting historical exposition of what Great Britain understood by her exclusive jurisdiction as applied to these Fisheries. In the XIIth Article of the Treaty of Utrecht, by which Nova Scotia or Acadia had been ceded by France to Great Britain, the Cession had been made, “in such ample manner and form, that the Subjects of the Most Christian King shall hereafter be excluded from all kind of fishing in the said Seas, Bays, and other places on the Coasts of Nova Scotia ; that is to say, on those which lie towards the East, within 30 LEAGUES, beginning from the Island commonly called Sable, inclusively, and thence along towards the South-west.

By the XIIIth Article of the same Treaty, French Subjects were excluded from fishing on any other part of the Coast of the Island of Newfoundland, than from Cape Bonavista Northward, and then Westward to Point Riche. By the XVth Article of the Treaty of Utrecht, between Great Britain and Spain, certain rights of Fishing at the Island of Newfoundland, had been reserved to the Guipuscoans, and other Subjects of Spain; but in the XVIIIth Article of the Treaty of Peace between Great Britain and Spain, of 1763, His Catholick Majesty had desisted, “ as well for himself as for his Successors, from all pretension which he might have formed in favour of the Guipuscoans and other his Subjects, to the right of fishing IN THE NEIGHBOURHOOD of the Island of Newfoundland.” In these several cases, it is apparent that Great Britain had asserted and maintained an exclusive and proprietary jurisdiction over the whole Fishing Grounds of the Grand Bank, as well as on the coast of North America, and in the Gulf of St. Lawrence. Nor are we without subsequent indications of what she would have considered as her exclusive jurisdiction, if a majority of the American Commission at Ghent had been as ready as Mr. Russell declares himself to have been, to subscribe to her doctrine, that all our Fishing liberties had lost, by the War, every vestige of right. For, in the Summer of 1815, the Year after the conclusion of the Peace, her armed Vessels on the American Coast warned all American Fishing Vessels not to approach within 60 Miles of the shores.

It was this incident which led to the Negotiation which terminated on the Convention of 20th October, 1818. In that Instrument The United States have renounced forever that part of the Fishing liberties which they had enjoyed or claimed in certain parts of the exclusive jurisdiction of British Provinces, and within 3 marine miles of the shores. This privilege, without being of much use to our Fishermen, had been found very inconvenient to the British: and, iu return, we have acquired an enlarged liberty, both of Fishing and drying Fish, within the other parts of the British jurisdiction, forever. The first Article of this Convention affords a signal testimonial of the correctness of the principle assumed by the American Plenipotentiaries at Ghent; for, by accepting the express renunciation of The United States, of a small portion of the privilege in question, and by confirming and enlarging all the remainder of the privilege forever, the British Government have implicitly acknowledged that the liberties of the IIId Article of the Treaty of 1783, had not been abrogated by the War, and have given the final stroke to the opposite doctrine of Mr. Russell. That words of perpetuity in a Treaty cannot give that character to the engagements it contains, is not indeed a new discovery in diplomatick history; but that truism has as little concern with this question, as the annulment of our Treaty of 1778 with France, so aptly applied to it in his Letter. It is not, therefore, the word forever, in this Convention, which will secure to our Fishermen, for all time, the liberties stipulated and recognized in it; but it was introduced by our Negotiators, and admitted by those of Great Britain, as a warning that we shall never consider the liberties secured to us by it, as abrogated by mere War. They may, if they please, in case of a War, consider the Convention as abrogated, but the privileges as existing, without reference to their origin. But they and we, I trust, are forever admonished against the stratagem of demanding a surrender, in the form of notifying a forfeiture. They and we are aware, forever, that nothing but our own renunciation can deprive us of the right.

The 1Id Article of this same Convention affords a demonstration equally decisive, how utterly insignificant and worthless, in the estimation of the British Government, was this direfully dreaded navigation of the Mississippi. The Article gives us the 49th parallel of Latitude for the Boundary, and neither the navigation of the River, nor access to it, was even asked in return.

These are conclusive facts-facts appealing not to the prejudices or the jealousies, but to the sound sense and sober judgment of Men. Without yielding at all to Mr. Russell, in my “trust in God and the valour of the West,” I have an equal trust in the same Divine Being, as connected with the justice of the West. I have the most perfect and undoubting reliance, that to the clear-sighted intelligence of the Western Country, the gorgons, and hydras, and chimeras dire, of Mr. Russell's imagination, raised by incantation from the Waters of the Mississippi, will sink as they rose, and be seen no more. Without professing to sacrifice any of those ties of duty and allegiance, which bind me to the interests of my native State, I cannot allow Mr. Russell's claim to a special ardour for the welfare of the West, to be superior to my own, or to that of the deceased, or of the living Colleague, with whom I concurred, without mental reservation, in the measure subscribed to, and denounced by Mr. Russell. We were all the Ministers of the whole Union; and sure I am, that every Member of the majority would have spurned with equal disdain the idea of sacrificing the interest of any one part of the Union to that of any other, and the uncandid purpose of awakening suspicions at the source of their common authority here, against the patriotism and integrity of any one of his Colleagues.

I shall conclude with a passing notice of the 3 alternatives, which, in the Postscript to the Original of his Letter of 11th February, 1815, he says, we might have taken, instead of that which, as he alleges, we, against his will, did do. We had, says he, three other ways of procreding :

“ First, to contend for the indestructibility of the Treaty of 1783, thence inferring the continuance of the Fishing privilege, without saying any thing about the navigation of the Mississippi, which would have reserved our right of contesting this navigation, on the grounds I have mentioned, specially applicable to it. Secondly, to have considered the Treaty at an end, and offered a reasonable equivalent, wherever it might be found, for the Fishing privilege. Thirdly, to have made this liberty a sine quâ non of Peace, as embraced by the principle of status ante bellum.

“ To either of these Propositions” (he adds,)“ I would have assented. But I could not consent to grant or revive the British right to the navigation of the Mississippi.”

He could not consent! He did consent: see his name subscribed to the Letter from the Anerican to the British Plenipotentiaries of 12th December, 1814, accompanying the Message of 25th February last.

It is, indeed, painful to remark here, and throughout this Letter of Mr. Russell, how little solicitude there is discoverable, to preserve even the appearance of any coincidence between his real sentiments and his professions: half his Letter is an argument in form to prove, that the Treaty of 1783 was abrogated by the War; yet, he says he would have assented to contend for its indestructibility, so long as it applied only to the defence of the Fisheries, reserving his special grounds of objection to its being applied to the navigation of the Mississippi. I have shewn, that the indestructibility of the Treaty of 1783 never was asserted by any of the American Commissioners; but, that the principle that it had not been abrogated by the War, and that none of the rights stipulated and recognized in it, as belonging to the People of The United States, could be abrogated, but by their own renunciation, was at first assumed in defence of the Fisheries only, and without saying any thing of the Mississippi. When, therefore, the demand for the navigation of the Mississippi came from the British Plenipotentiaries, Mr. Russell's special objections to the application of our principle, in favour of our demand, might have been urged. But what were these special objections ? I have shewn, that they were our own wrong-fraud and extortion upon Spain, to justify perfidy to Great Britain. Mr. Russell never did allege these objections at Ghent, and, if he had, a majority of the American Mission, would, assuredly, have been ashamed to allege them to the British Go. vernment.

The second way of proceeding, to which Mr. Russell says he would have assented, was to consider the Treaty of 1783 at an end, and offer for the Fishing privilege, a reasonable equivalent, wherever it might be

« PreviousContinue »