The Oregon Territory Part 8

In the negotiations which took place in 1818 between the two governments [British and Foreign State Papers, 1819-20,] Mr. Adams, on the part of the United States, contended that the treaty of 1783 was not one of those, "which, by the common understanding and usage of civilized nations, is or can be considered as annulled by a subsequent war between the same parties. To suppose that it is, would imply the inconsistency and absurdity of a sovereign and independent state liable to forfeit its right of sovereignty, by the act of exercising it in a declaration of war. But the very words of the treaty attest, that the sovereignty and independence of the United States were not considered or understood as grants from his Majesty. They were taken and expressed as existing before the treaty was made, and as then only first formally recognized and acknowledged by Great Britain.

"Precisely of the same nature were the rights and liberties in the fisheries to which I now refer. They were in no respect grants from the King of Great Britain to the United States; but the acknowledgment of them, as rights and liberties enjoyed before the separation of the two countries, which it was mutually agreed should continue to be enjoyed under the new relations which were to subsist between them, const.i.tuted the essence of the article concerning the fisheries. The very peculiarity of the stipulation is an evidence that it was not, on either side, understood or intended as a grant from one sovereign state to another. Had it been so understood, neither could the United States have claimed, nor would Great Britain have granted gratuitously, any such concession. There was nothing either in the state of things or in the disposition of the parties which could have led to such a stipulation, as on the ground of a grant, without an equivalent by Great Britain."

Lord Bathurst's letter of October 30, 1815, to Mr. Adams, contains a full exposition of the doctrine maintained by Great Britain. It is worthy of perusal in full, but, as its great length precludes its insertion on the present occasion, the pa.s.sages have been selected which bear most closely on the question.

"The Minister of the United States appears, by his letter, to be well aware that Great Britain has always considered the liberty formerly enjoyed by the United States, of fishing within British limits, and using British territories, as derived from the third article of the Treaty of 1783, and from that alone; and that the claim of an independent state to occupy and use, at its discretion, any portion of the territory of another, without compensation or corresponding indulgence, cannot rest on any other foundation than conventional stipulation. It is unnecessary to enquire into the motives which might have originally influenced Great Britain in conceding such liberties to the United States; or whether other articles of the treaty wherein these liberties are specified, did, or did not, in fact afford an equivalent for them; because all stipulations profess to be founded on equivalent advantages and mutual convenience. If the United States derived from that treaty privileges from which other independent nations, not admitted by treaty, were excluded, the duration of the privileges must depend on the duration of the instrument by which they were granted; and, if the war abrogated the treaty, it determined the privileges. It has been urged, indeed, on the part of the United States, that the treaty of 1783 was of a peculiar character; and that, because it contained a recognition of American independence, it could not be abrogated by a subsequent war between the parties. To a position of this novel nature, Great Britain cannot accede. She knows of no exception to the rule, that all treaties are put an end to by a subsequent war between the same parties; she cannot, therefore, consent to give to her diplomatic relations with one state, a different degree of permanency from that on which her connection with all other states depends. Nor can she consider any one state at liberty to a.s.sign to a treaty made with her, such a peculiarity of character as shall make it, as to duration, an exception to all other treaties, in order to found, on a peculiarity thus a.s.sumed, an irrevocable t.i.tle to indulgences, which have all the features of temporary concessions."

"_It is by no means unusual for treaties containing recognitions and acknowledgments of t.i.tle, in the nature of perpetual obligation, to contain, likewise, grants of privileges liable to revocation._ The Treaty of 1783, like many others, contained provisions of different characters, some in their own nature irrevocable, and others of a temporary nature. If it be thence inferred, that, because some advantages specified in a treaty could not be put an end to by the war, therefore all the other advantages were intended to be equally permanent, it must first be shown that the advantages themselves are of the same, or, at least, of a similar character: for the character of one advantage recognised or conceded by treaty, can have no connection with the character of another, though conceded by the same instrument, unless it arises out of a strict and necessary connection between the advantages themselves. But what necessary connection can there be between a right to independence, and a liberty to fish within British jurisdiction, or to use British territory? Liberties within British limits are as capable of being exercised by a dependent, as an independent state, and cannot therefore be the necessary consequences of independence.

"The independence of a state is that which cannot be correctly said to be granted by a treaty but to be acknowledged by one. In the Treaty of 1783, the independence of the United States was certainly acknowledged; but it had been before acknowledged, not merely by the consent to make the treaty, but by the previous consent to enter into the provisional articles executed November, 1782. The independence might have been acknowledged, without either the treaty or the provisional articles; but by whatever mode acknowledged the acknowledgment is, in its own nature, irrevocable. A power of revoking, or even modifying it, would be destructive of the thing itself; and, therefore, all such power is necessarily renounced, when the acknowledgment is made. The war could not put an end to it, for the reason justly a.s.signed by the American Minister, because a nation cannot forfeit its sovereignty by the act of exercising it; and for the further reason that Great Britain, when she declared war on her part against the United States, gave them by that very act a new recognition of their independence.

"The nature of the liberty to fish within British limits, or to use British territory, is essentially different from the right to independence, in all that may reasonably be supposed to regard its intended duration. The grant of this liberty has all the aspect of a policy temporary and experimental, depending upon the use that might be made of it, on the condition of the islands and places where it was to be exercised, and the more general conveniences or inconveniences, in a military, naval, or commercial point of view, resulting from the access of an independent nation to such islands and places. When, therefore, Great Britain, admitting the independence of the United States, denies their rights to the liberties for which they now contend, it is not that she selects from the treaty articles or parts of articles, and says, at her own will, This stipulation is liable to forfeiture by war, and that is irrevocable; but the principle of her reasoning is, that such distinctions arise out of the provisions themselves, and are founded on the very nature of the grants. But the rights acknowledged by the treaty of 1783 are not only distinguishable from the liberties conceded by the same treaty in the foundation upon which they stand, but they are carefully distinguished in the treaty of 1783 itself.

"The undersigned begs to call the attention of the American minister to the wording of the 1st and 2nd articles, to which he has often referred for the foundation of his arguments. In the 1st article, Great Britain acknowledges an independence already expressly recognised by other powers of Europe, and by herself, in her consent to enter into provisional articles, of Nov. 1782. In the 3rd article Great Britain acknowledges the _right_ of the United States to take fish on the banks of Newfoundland, and other places, from which Great Britain had no right to exclude any independent nation. But they are to have the _liberty_ to take fish on the coasts of his Majesty's dominions in America, and _liberty_ to cure and dry them in certain unsettled places within his Majesty's territory. If these liberties, thus granted, were to be as perpetual and indefeasible as the rights previously recognized, it is difficult to conceive that the plenipotentiaries of the United States would have admitted a variation of language so adapted to produce a different impression, and above all, that they should have admitted so strange a restriction of a perpetual and indefeasible right, as that with which the article concludes, which leaves a right, so practical and so beneficial as this is admitted to be, dependent on the will of British subjects, in their character of inhabitants, proprietors, or possessors of the soil, to prohibit its exercise altogether.

"It is clearly obvious that the word _right_ is, throughout the treaty, used as applicable to what the United States were to enjoy in virtue of a recognized independence, and the word _liberty_ to what they were to enjoy, as concessions strictly dependent on the treaty itself."

Mr. Adams, in his reply to Viscount Castlereagh, of Jan. 22, 1816, having explicitly "disavowed every pretence of claiming for the diplomatic relations between the United States and Great Britain a degree of permanency different from that of the same relations between either of the parties and all other powers," goes on to state, "The undersigned believes that there are many exceptions to the rule by which treaties between nations are mutually considered as terminated by the intervention of war; that these exceptions extend to the engagements contracted, with the understanding that they are to operate equally in war and peace, or exclusively during war: to all engagements by which the parties superadd the sanction of a formal compact to principles dictated by the eternal laws of morality and humanity; and finally to all engagements which, according to the expression of Lord Bathurst's note, are in the nature of a perpetual obligation. To the first and second of these cla.s.ses may be referred the 10th article of the treaty of 1794, and all treaties or articles of treaties stipulating the abolition of the slave-trade. The treaty of peace of 1783 belongs to the third."

"The reasoning of Lord Bathurst's note seems to confine this perpetuity of obligation to recognitions and acknowledgments of t.i.tle; and to consider its perpetual nature as resulting from the subject matter of the contract, and not from the engagement of the contractor. Whilst Great Britain leaves the United States unmolested in the enjoyment of all the advantages, rights, and liberties, stipulated in their behalf in the Treaty of 1783, it is immaterial to them whether she founds her conduct upon the mere fact that the United States are in possession of such rights, or whether she is governed by good faith and respect for her own engagements. But if she contests any one of them, it is to her engagements only that the United States can appeal as to the rule for settling the question of right. If this appeal be rejected, it ceases to be a discussion of right, and this observation applies as strongly to the recognition of independence, and to the boundary line, in the Treaty of 1783, as to the fisheries. It is truly observed by Lord Bathurst, that in that treaty the independence of the United States was not granted, but acknowledged. He adds, that it might have been acknowledged without any treaty, and that the acknowledgment, in whatever mode made, would have been irrevocable. But the independence of the United States was precisely the question upon which a previous war between them and Great Britain had been waged. Other nations might acknowledge their independence without a treaty, because they had no right, or claim of right, to contest it: but this acknowledgment, to be binding upon Great Britain, could have been made only by treaty, because it included the dissolution of one social compact between the parties, as well as the formation of another. Peace could exist between the two nations only by the mutual pledge of faith to the new social relations established between them, and hence it was that the stipulations of that treaty were in the nature of perpetual obligation, and not liable to be forfeited by a subsequent war, or by any declaration of the will of either party without the a.s.sent of the other."

Mr. Adams then proceeds to discuss the variation in the employment of the terms _right_ and _liberty_, considering the former to import an advantage to be enjoyed in a place of common jurisdiction, the latter to refer to the same advantage, incidentally leading to the borders of a special jurisdiction. That the term _right_ was used as applicable to what the United States were to enjoy in virtue of a recognised independence, and the word _liberty_ to what they were to enjoy as concessions strictly dependent on the treaty itself, he declined to admit, as a construction altogether unfounded.

He further contended, that "the restriction at the close of the article was itself a confirmation of the permanency of every part of the article,"

for that, "upon the common and equitable rule of construction for treaties, the expression of one restriction implies the exclusion of all others not expressed; and thus the very limitation, which looks forward to the time when the unsettled deserts should become inhabited, to modify the enjoyment of the same liberty, conformably to the change of circ.u.mstances, corroborates the conclusion that the whole purport of the compact was permanent and not temporary."

The doc.u.ments from which these extracts have been made will well repay a perusal of them in full, both from the importance of the principles which are therein discussed, and from the ability with which the discussion was conducted on both sides. The result of the negotiations was the conclusion of the convention of October 20, 1818, by which the liberty to take and cure fish on certain parts of the British American coasts, so long as they remained unsettled was secured to the citizens of the United States, in common with British subjects "_for ever_."

It appears to have been admitted by both parties to this negotiation, that treaties do sometimes contain acknowledgments in the nature of a perpetual obligation: the point at issue between them seems to have been, whether the provisions of a convention could ever be considered as of a mixed character, some of which would be terminable by war, whilst others were irrevocable; and whether the nature of the thing acknowledged determined the character of the provision, or the engagement of a treaty gave permanence to the obligation. It seems to have been implied by the insertion of the words "for ever," in the first article of the Convention of 1818, that if the permanent character of the thing recognised is not beyond dispute, the words of the convention must be express, in order to give to the engagements of it the nature of a perpetual obligation. On the other hand, both parties admitted that recognitions of territorial t.i.tle were of perpetual obligation; they differed as to the grounds: the British commissioner deriving the obligation from the nature of the thing recognised, the plenipotentiary of the United States from the fact of its having been recognised by a convention.

CHAPTER XI.

NEGOTIATION BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1818.

Treaty of Ghent, 1814.--Negotiations respecting the Restoration of Fort George.--The United States replaced in Possession of the Post at the Mouth of the Columbia River.--General Negotiations in London, in 1818.--Proposal on the Part of the United States.--Convention of 1818.--No exclusive Claim on either Side.--Western Boundary of the United States by the Treaty of 1783.--Treaty of 1794.--Sources of the Mississippi in 47 38'.--Convention of 1803, respecting the Boundary, not ratified.--President Jefferson's Letter.--Cession of Louisiana to the United States.--Convention of 1806.--First Allusion to the Country west of the Rocky Mountains.--Convention not ratified by the United States.--Boundary Line according to the Treaty of Utrecht.--Opinion of Mr. Greenhow.--Anderson's History of Commerce.--Treaty of Ryswick.--Limits of Canada, as surrendered to Great Britain.--Difficulty of Boundary Treaties from incorrect Maps.--Treaty of 1783.

The Treaty of Ghent, between Great Britain and the United States of America, was signed on the 24th of December 1814, and it was agreed in the first article, "that all territory, places, and possessions whatsoever taken by either party from the other during the war, or which may be taken after the signing of this treaty, excepting only the islands hereinafter mentioned [in the bay of Pa.s.samaquoddy,] shall be restored without delay."

By virtue of this article, Mr. Monroe, the Secretary of State at Washington, wrote to Mr. Baker, the British charge d'affaires, on July 18, 1815, to inform him that measures would be taken by the United States to occupy without delay the post on the Columbia river, which a British expedition had succeeded in taking possession of during the war, as not being within the exception stipulated. [British and Foreign State Papers, 1821-22, p. 459.] To this communication an indecisive reply was made by Mr. Baker, and the affair was allowed to rest till 1817, when it appears that the United States despatched the Ontario sloop of war to resume possession of this post, without giving previous notice to Mr. Bagot, the British minister at Washington. This led to an inquiry on the part of Mr.

Bagot, relative to the destination of the Ontario, and the object of her voyage, and to a statement from him, that "the post in question had not been captured during the late war, but that the Americans had retired from it under an agreement made with the North-west Company, who had purchased their effects, and who had ever since retained peaceable possession of the coast." He further observed, that no claim for the rest.i.tution of this post could be grounded upon the first article of the Treaty of Ghent, and that "the territory itself was early taken possession of in his Majesty's name, and has been since considered as forming a part of his Majesty's dominions."

The discussion was soon afterwards transferred to London, when, in February 1818, Lord Castlereagh intimated his regret that no notice of the expedition of the Ontario should have been given to the British minister at Washington, Great Britain having a claim of dominion over the territory in question. It was the desire, however, he said, of the British Government, that the claim of t.i.tle to this post should go before commissioners for arbitration. Mr. Rush, the Minister of the United States, was authorised to state that the omission to give notice of the Ontario's departure to Mr. Bagot, was entirely owing to the accident of the President being absent from the seat of government, but that it had been concluded from Mr. Baker's communications that no authorised English establishment existed at the place, and "as they intimated no question whatever of the t.i.tle of the United States to the settlement, which existed there before the late war, it did not occur that any such question had since arisen, which could make it an object of interest to Great Britain."

Mr. Adams, in the course of his subsequent instructions to Mr. Rush, in his letter of May 20, 1818, sets forth very clearly and fully the pretensions of the United States. "As it was not antic.i.p.ated that any disposition existed in the British government to start questions of t.i.tle with us on the borders of the South Sea, we could have no possible motive for reserve or concealment with regard to the expedition of the Ontario.

In suggesting these ideas to Lord Castlereagh, rather in conversation than in any formal manner, it may be proper to remark the minuteness of the present interests, either to Great Britain or to the United States, involved in this concern; and the unwillingness, for that reason, of this Government, to include it among the objects of serious discussion with them. At the same time you might give him to understand, though not unless in a manner to avoid every thing offensive in the suggestion, that from the nature of things, if in the course of future events it should ever become an object of serious importance to the United States, it can scarcely be supposed that Great Britain would find it useful or advisable to resist their claim to possession by systematic opposition. If the United States leave her in undisturbed enjoyment of all her holds upon Europe, Asia, and Africa, with all her actual possessions in this hemisphere, we may very fairly expect, that she will not think it inconsistent with a very wise or friendly policy, to watch with eyes of jealousy and alarm every possibility of extension to our natural dominion in North America, which she can have no solid interest to prevent, until all possibility of her preventing it shall have vanished." (State Papers, 1821-22, p. 464.)

Lord Castlereagh in the mean time had admitted to Mr. Rush, that in accordance with the principle of _statu quo_, which was the basis of the Treaty of Ghent, the United States had a right to be reinstated _and to be the party in possession whilst treating of the t.i.tle_. In accordance with this view, orders were transmitted to the agents of the North-west Company at Fort George, and to the commodore of the British naval forces in the Pacific, expressly in conformity to the first article of the Treaty of Ghent, to restore to the government of the United States, through its agent, Mr. Prevost, the settlement of Fort George on the Columbia river. A formal surrender of the post was, in consequence, made and accepted on the 6th of October, 1818; but the North-west Company were still allowed to occupy it under the flag of the United States, pending the final decision of the right of sovereignty between the respective governments.

Great Britain, in admitting the right of the United States to be the party in possession of Fort George pending the discussion of the t.i.tle to it, attached the most liberal interpretation to the Treaty of Ghent, and certainly gave to the United States, in all future discussions, the advantage of the presumption of law, on the ground of possession, as against Great Britain:--"Commodum possidentis in eo est, quod etiamsi ejus res non sit, qui possidet, si modo actor non potuerit suam esse probare, remanet in suo loco possessio." But, beyond this, nothing was conceded.

Doubtless, in order to oust the United States, it would now be necessary for Great Britain to make out a perfect and exclusive t.i.tle, which she does not attempt to set up, but the re-occupation of the post by the officers of the United States, expressly in conformity to the Treaty of Ghent, established nothing further than the fact that they were in the possession of it before the war broke out.

In the mean time negotiations were being carried on in London for the settlement of various points at issue between the two governments--including the fisheries; the boundary line from the Lake of the Woods westwards; the settlement at the Columbia river; the indemnification for slaves carried off from the United States; and the renewal of a treaty of commerce. It would appear from a letter addressed by Messrs. Gallatin and Rush to Mr. Adams, in October 20, 1818, that in the course of the above negotiations the British commissioners were altogether unwilling to agree to a boundary line, unless some arrangement was made with respect to the country westward of the Stony Mountains.

"This induced us to propose an extension of the boundary line [as drawn along the 49th degree of north lat.i.tude, from the Lake of the Woods to the Stony Mountains,] due west to the Pacific Ocean. _We did not a.s.sert that the United States had a perfect right to that country, but insisted that their claim was at least good against Great Britain._ The 49th degree of north lat.i.tude had, in pursuance of the Treaty of Utrecht, been fixed indefinitely as the line between the northern British possessions and those of France, including Louisiana, now a part of our territories. There was no reason why, if the two countries extended their claims westward, the same line should not be continued to the Pacific Ocean. So far as discovery gave a claim, ours to the whole country on the waters of the Columbia River, was indisputable. It had derived its name from that of the American ship, commanded by Captain Gray, who had first discovered and entered its mouth. It was first explored from its sources to the ocean by Lewis and Clarke, and before the British traders from Canada had reached any of its waters; for it was now ascertained that the river Tacoutche-Tesse, discovered by Mackenzie, and which he had mistaken for the Columbia, was not a branch of that river, but fell into the sound called 'the Gulf of Georgia.' The settlement at the place called Astoria, was also the first permanent establishment made in that quarter. The British plenipotentiaries a.s.serted that former voyages, and princ.i.p.ally that of Captain Cook, gave to Great Britain the rights derived from discovery, and they alluded to purchases from the natives south of the River Columbia, which they alleged to have been made prior to the American Revolution. They did not make any formal proposition for a boundary, but intimated that the river itself was the most convenient that could be adopted, and that they would not agree to any that did not give them the harbour at the mouth of the river, in common with the United States."

[State Papers, 1819-20, p. 169.]

These negotiations were brought to a close by the Convention of October 20, 1818, in which, however, nothing definitive was concluded in regard to the settlement on the Columbia river. By the third article it is agreed, that "any such country as may be claimed by either party on the northwest coast of America, on the continent of America westward of the Stony Mountains, shall, together with its harbours, bays, and creeks, and the navigation of all rivers within the same, be free and open, for the term of ten years from the date and signature of this treaty, to the vessels, citizens, and subjects of the two Powers; it being well understood that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the last-mentioned country, nor shall it be taken to affect the claims of any other Power or State to any part of the said country--the only object of the two high contracting parties in that respect being to prevent disputes and differences amongst themselves." [Martens' Nouveau Recueil de Traites, iv., p. 575.]

Thus much, however, may be considered to have been definitively recognized by the article just cited, that both parties had claims to territory west of the Stony Mountains, but not exclusive claims; it being implied, by the provision that the agreement should not be taken to affect the claims of any other Power or State to any part of the said country, that other Powers might likewise have claims.

By the previous article of this treaty, the object of the framers of the second article of the Treaty of 1783 was at last accomplished. By that article it had been agreed, that the western boundary of the United States should be defined by a line "drawn from the most north-western point of the Lake of the Woods on a due west course to the River Mississippi; thence by a line to be drawn along the middle of the said River Mississippi, until it shall intersect the northernmost part of the thirty-first degree of north lat.i.tude." At the time, then, when Gray crossed the bar of the Columbia river in 1792, and first entered the estuary of that river, there was no question about any t.i.tle of the United States to territories west of the River Mississippi. The boundaries were the Atlantic Ocean on the east, and the River Mississippi on the west.

The framers, however, of the second article of the Treaty of 1783, were ignorant of the true position of the sources of the Mississippi. It was in consequence stipulated by the fourth article of the subsequent Treaty of 1794, that a "joint survey of the river from one degree below the falls of St. Anthony, to the princ.i.p.al source or sources of the said river, and of the parts adjacent thereto," should be made; and if, on the result of the survey, it should appear that the river could not be intersected by the above-mentioned line, the parties were to regulate the boundary line by amicable negotiation, according to justice and mutual convenience, and in conformity to the intent of the Treaty of 1783. This joint survey never took effect. In 1798, however, Mr. Thomson, the astronomer of the North-west Company determined the lat.i.tude of the sources of the Mississippi to be in 47 38', and thus it was definitively ascertained, that no line could be drawn due west from the north-western point of the Lake of the Woods, which is in lat.i.tude 49 37', so as to meet the head-waters of the Mississippi. In consequence, by a convention signed on the 12th of May 1803, by Mr. Rufus King and Lord Hawkesbury, it was agreed that the boundary should be a line from the north-west corner of the Lake of the Woods by the shortest line, till it touched the River Mississippi [British and Foreign State Papers, 1819-20, p. 158.] It is to this treaty that President Jefferson alludes in his letter of August 1803, referred to by Mr. Pakenham, in his letter of September 12, 1844:--"The boundaries [of Louisiana] which I deem not admitting question, are the high lands on the western side of the Mississippi, inclosing all its waters, [the Missouri of course,] and terminating in the line drawn from the north-west point of the Lake of the Woods to the nearest source of the Mississippi, _as lately settled_ between Great Britain and the United States." This treaty, however, was never ratified, most probably in consequence of the cession of Louisiana to the United States, by the treaty signed at Paris on the 30th April, 1803; as this cession gave to the United States the t.i.tle which France had re-acquired from Spain, by the treaty of St. Ildefonso in 1800, to the western bank of the Mississippi. In consequence, we find that in a convention concluded at London between Messrs. Monroe and Pinckney, and the Lords Holland and Auckland, in 1806, it was agreed by the fifth article, "that a line drawn due north or south [as the case may require,]

from the most north-western point of the Lake of the Woods, until it shall intersect the 49th parallel of north lat.i.tude, and from the point of such intersection due west, along and with the said parallel, shall be the dividing line between his Majesty's territories and those of the United States, to the westward of the said lake, as far as their said respective territories extend in that quarter; and that the said line shall, to that extent, form the southern boundaries of his Majesty's said territories, and the northern boundary of the said territories of the United States; provided that nothing in the present article shall be construed to extend to the north-west coast of America or to the territories belonging to or claimed by either party on the continent of America to the westward of the Stony Mountains." (Martens' Recueil des Traites, viii., p. 594.)

This was the first notice of any claim on the part of the United States to territory west of the Rocky Mountains: it may be presumed that the acquisition of the western bank of the Mississippi formed the ostensible basis of her claim, as on that ground the expedition of Lewis and Clarke had been despatched in the preceding year to follow up the Missouri to its source, and thence to trace down to the Pacific Ocean the most direct and practicable water-communication for the purposes of commerce. It may be observed, that the arrangement contemplated by this fifth article was highly favourable to the United States, as their acquired t.i.tle to Louisiana would not strictly have ent.i.tled them to any territory north of the Mississippi. This convention, however was never ratified by the United States, on account of the absence of any provisions to restrain the impressment of British sailors serving on board of American ships.

(Schoell, Histoire des Traites de Paix, ch. 40.)

Mr. Greenhow, (p. 281,) in alluding to the negotiations antecedent to this convention, states that Mr. Monroe, on the part of the United States, proposed to Lord Harrowby the 49th parallel of lat.i.tude, upon the grounds that this parallel had been adopted and definitively settled, by commissaries appointed agreeably to the tenth article of the treaty concluded at Utrecht in 1713, as the dividing line between the French possessions of Western Canada and Louisiana on the south, and the British territories of Hudson's Bay on the north; and that this treaty, having been specially confirmed in the Treaty of 1763, by which Canada and the part of Louisiana east of the Mississippi and Iberville were ceded to Great Britain, the remainder of Louisiana continued as before, bounded on the north by the 49th parallel. The same fact was alleged by the commissioners of the United States, in their negotiations with Spain in 1805, respecting the western boundary of Louisiana. (British and Foreign State Papers, 1817-18, p. 322.)

He further goes on to state, that there is every reason to believe, that though commissioners were appointed, in accordance with the treaty, for the purpose of determining the boundaries between the French and British possessions, they never executed their task, and that no line was ever definitely adopted by the two Governments.

This opinion of Mr. Greenhow seems to be fully supported by the proofs and ill.u.s.trations annexed in his Appendix, but his mode of stating the substance of the tenth article of the Treaty of Utrecht is calculated to mislead his readers into supposing, that the northern boundary of Louisiana was under discussion when that article was signed. On the contrary, the words of the article were as follow:--"But it is agreed on both sides, to determine within a year, by commissaries to be forthwith named by each party, the limits which are to be fixed between the said Bay of Hudson and _the places appertaining to the French_; which limits both the British and French subjects shall be wholly forbid to pa.s.s over, or thereby go to each other by sea or by land. The same commissaries shall also have orders to describe and settle in like manner the boundaries between the _other_ British and French colonies in those parts."

On this article Mr. Anderson, in his History of Commerce, published in 1801, vol. iii., p. 50, observes, under the events of the year 1713:--"Although the French King yielded to the Queen of Great Britain, to be possessed by her in full right for ever, the Bay and Straits of Hudson, and all parts thereof, and within the same, then possessed by France; yet the leaving the _boundaries between Hudson's Bay and the north parts of Canada, belonging to France_, to be determined by commissaries within a year, was, in effect, the same thing as giving up the point altogether, it being well known to all Europe, that France never permits her commissaries to determine matters referred to such, unless it can be done with great advantage to her. _Those boundaries_ therefore _have never yet been settled_, although both British and French subjects are by that article expressly debarred from pa.s.sing over the same, or merely to go to each other by sea or land."

The object of the tenth article of the Treaty of Utrecht was to secure to the Hudson's Bay Company the restoration of the forts and other possessions of which they had been deprived at various times by French expeditions from Canada, and of which some had been yielded to France by the seventh article of the Treaty of Ryswick. By this latter treaty Louis XIV. had at last recognised William III. as King of Great Britain and Ireland, and William in return had consented that the principle of _ubi possidetis_ should be the basis of the negotiations between the two crowns. By the tenth article, however, of the Treaty of Utrecht, the French King agreed to restore to the Queen (Anne) of Great Britain, "to be possessed in full right for ever, the Bay and Straits of Hudson, together with all lands, seas, sea coasts, rivers and places situate in the said bay and straits, and which belong thereto, no tracts of land or sea being excepted, which are at present possessed by the subjects of France." The only question therefore for commissaries to settle, were the limits of the Bay and Straits of Hudson, _coastwards_, on the side of the French province of Canada, as all the country drained by streams entering into the Bay and Straits of Hudson were by the terms of the treaty recognised to be part of the possessions of Great Britain.

If the coast boundary, therefore, was once understood by the parties, the head waters of the streams that empty themselves into the Bay and Straits of Hudson indicate the line which at once satisfied the other conditions of the treaty. Such a line, if commenced at the eastern extremity of the Straits of Hudson, would have swept along, through the sources of the streams flowing into the Lake Mista.s.sinnie and Abbitibis, the Rainy Lake, in 48 30', which empties itself by the Rainy River into the Lake of the Woods, the Red Lake, and Lake Travers. This last lake would have been the extreme southern limit, in about 45 40', whence the line would have wound upward to the north-west, pursuing a serpentine course, and resting with its extremity upon the Rocky Mountains, at the southernmost source of the Saskatchawan River, in about the 48th parallel of lat.i.tude. Such would have been the boundary line between the French possessions and the Hudson's Bay district; and so we find that, in the limits of Canada, a.s.signed by the Marquis de Vaudreuil himself, when he surrendered the province to Sir J. Amherst, the Red Lake is the apex of the province of Canada, or the point of departure from which, on the one side, the line is drawn to Lake Superior; on the other "follows a serpentine course southward to the river Ouabache, or Wabash, and along it to the junction with the Ohio." This fact was insisted upon by the British Government in their answer to the ultimatum of France, sent in on the 1st of September, 1761; and the map, which was presented on that occasion by Mr. Stanley, the British minister, embodying those limits, was a.s.sented to in the French Memorial of the 9th of September. (Historical Memorial of the Negotiations of France and England from March 26th to September 20th, 1761. Published at Paris, by authority.) By the fourth article, however, of the Treaty of 1763, Canada was ceded in full, with its dependencies, _including the Illinois_; and the future line of demarcation between the territories of their Britannic and Christian Majesties, on the continent of America, was, by the seventh article, irrevocably fixed to be drawn through the middle of the River Mississippi, _from its source_ to the river Iberville, and thence along the middle of the latter river and the Lakes Maurepas and Pontchartrain to the sea. Thenceforward the French territory in North America was confined to the western bank of the Mississippi, and this was _the Louisiana_ which was ceded by France to Spain in 1769, by virtue of the treaty secretly concluded in 1762, but not promulgated till 1765. There would have been no mistake as to the boundaries of Louisiana, Canada, and the Hudson's Bay territories, as long as they were defined to be the aggregate of the valleys watered by the rivers flowing into the Gulf of Mexico, the Gulf of St. Lawrence, and the Bay of Hudson respectively. The difficulty in executing the provisions of boundary treaties in America, has arisen chiefly from adopting the data which incorrect maps have furnished, to which there has been nothing in nature corresponding, and from agreeing to certain parallels of lat.i.tude, as appearing from those maps to form good natural frontiers, but which have been found upon actual survey to frustrate the intentions of both parties.

The relative positions of the Lake of the Woods, the Red Lake, and the northernmost source of the Mississippi, were evidently not understood by the parties to the 2d article of the Treaty of 1783, when it was proposed to continue a line from the northwestern point of Lake Superior through the Long Lake, and thence to the Lake of the Woods, and due west to the Mississippi. In order to hit off the sources of the Mississippi, which was the undoubted purport of the treaty, the line should have been drawn from the westernmost point of Lake Superior up the river St. Louis, and thence it might have been carried due westward to the source of the Mississippi in 47 38'. No definite subst.i.tute was proposed in the Treaty of 1794, which admitted the uncertain character of the proposed frontier; for even then the country had not been surveyed, and as neither of the conventions of 1803 nor 1806 was ratified by the United States, nor could the respective plenipotentiaries come to any agreement on the subject at the negotiation of the Peace at Ghent, the question remained unsettled, until it was at last arranged by the provisions of the 2d article of the Convention of 1818, that the boundary line agreed upon in 1806 should be the frontier westward as far the Rocky Mountains.

If this view be correct of the boundary line of the Hudson's Bay territory, as settled by the Treaty of Utrecht, and of the western limit of Canada, as expressed upon its surrender to Great Britain, it will be conclusive against the opinion that the French possessions ever extended indefinitely northwestward along the continent of North America.

It should be kept in mind, that the Treaty of Utrecht was signed in the interval between the grant to Crozat in 1712 and the charter of Law's Mississippi Company in 1717. By the former grant Louisiana had been definitely limited to the head-waters of the Mississippi and the Missouri, and before the subsequent annexation of the Illinois to the province of Louisiana in 1717, all the territory watered by the streams emptying themselves into the Bay of Hudson had been acknowledged by France to be part of the possessions of the Crown of England. As then the Hudson's Bay territories were implied by that treaty to extend up to the Red Lake and Lake Travers, this would definitely bar the French t.i.tle further north; but the declaration of the French authorities themselves, on the surrender of Canada, that its boundary rested upon the Red Lake, will still more decisively negative the a.s.sertion that Louisiana, after 1717, extended "to the most northern limit of the French possessions in North America, and thereby west of Canada and New France," unless it can be shown that the Illinois country extended to the west of the Red Lake, which was not the fact. This question, however, will be more fully discussed in the next chapter.

CHAPTER XII.

ON THE LIMITS OF LOUISIANA.

Hernando de Soto discovers the Mississippi, in 1542.--British Discoveries in 1654 and 1670.--French Expeditions.--De la Salle, in 1682.--Settlement in the Bay of St. Bernard, in 1685.--D'Iberville, in 1698.--Charter of Louis XIV. to Crozat, in 1712.--The Illinois annexed, in 1717, in the Grant to Law's Mississippi Company.--The Treaty of Paris, in 1763.--Secret Treaty between France and Spain.--Louisiana ceded to Spain, in 1769.--Retroceded to France, in 1800, by the secret Treaty of San Ildefonso.--Transferred by Purchase to the United States, in 1803.--Discussions with Spain as to the Boundaries of Louisiana.--Grants by Charter only valid against other Nations upon Principles recognised by the Law of Nations.--Western Boundaries of Louisiana.--Evidence of Charters against the Grantors.--Conflict of t.i.tles between France and England on the Ohio, between France and Spain on the Missouri.--t.i.tle of Great Britain by Treaties.--Extent of New France westwardly.--Escarbot's Histoire de la Nouvelle France.--Map of 1757.--Jefferys' History of the French Dominions in America.--Questionable Authority of Maps.