TREATY OF WASHINGTON.
The Treaty of San Ildefonso.--Ineffectual Negotiations between Spain
and the United States, in 1805, respecting the Boundary of
Louisiana.--Resumed in 1817.--M. Kerlet's Memoir cited by Spain,
Crozat's Charter by the United States, as Evidence.--Spain proposes
the Missouri as the mutual Boundary.--The United States propose to
cross the Rocky Mountains, and draw the Line from the Snow Mountains
along 41 deg. to the Pacific.--Negotiations broken off.--Spain proposes
the Columbia River as the Frontier.--Offers the Parallel of 41 deg. to the
Multnomah, and along that River to the Sea.--Error in Melish's
Map.--The United States propose the Parallel of 41 deg. to the
Pacific.--Spain proposes the Parallel of 42 deg. to the Multnomah, and
along that River to 43 deg., thence to the Pacific.--The 42 deg. Parallel
adopted.--Source of the Multnomah or Willamette River, in about
44 deg.--Wilkes' exploring Expedition--Third Article of the Treaty.--The
asserted Rights of Spain to the Californias.--Her Title by
Discovery.--The United States decline to discuss them.--The asserted
Rights of the United States to the Valley of the Mississippi.--Mr.
Greenhow's Remarks.--The Spanish Commissioner declines to
negotiate.--Design of the President of the United States.--Question of
Rights abandoned.--Object of the Spanish Concessions.--Santa
Fe.--Ultimate Agreement.--Review of the Claims of the two
Parties.--Principles of international Law advanced by the United
States.--Possession of the Sea-coast entitles to Possession of the
interior Country.--Vattel.--Inconsistency of the Diplomatists of the
United States.--Treaty of Paris.--Natural Boundary of conterminous
Settlements, the Mid-distance.--Vattel.--Wheaton.--Acquisition of
Title from Natives barred by first Settlers against other European
Powers.--Right of Pre-emption.
In the same year in which the Convention of 1818 was concluded at London
between the United States and Great Britain, negotiations were being
carried on at Washington between Spain and the United States, with the
view of determining the effects of the Treaty of 1803, whereby Louisiana
had been ceded by France to the latter power. It had been stipulated in
the treaty of San Ildefonso in 1800, that Spain should retrocede "the
colony or province of Louisiana, with the same extent which it now has in
the hands of Spain, and which it had when France possessed it, and such as
it ought to be according to the treaties subsequently made between Spain
and other powers." (British and Foreign State Papers, 1817-18, p. 267-9.)
The Treaty of 1803 in its turn ceded Louisiana to the United States, "in
the name of the French republic, for ever and in full sovereignty, with
all its rights and appurtenances, as fully and in the same manner as they
have been acquired by the French republic, in virtue of the
above-mentioned treaty with his Catholic Majesty." It thus became
requisite to determine the limits of this new acquisition of the United
States, both on the side of the Floridas, and on that of New Spain. An
examination of the discussion regarding the eastern boundary towards the
Floridas is unnecessary on the present occasion. The question respecting
the western limit was, perhaps, the more difficult to settle, from the
circumstance that Texas was claimed by Spain as a province of New Spain,
whilst the United States insisted that it was a portion of Louisiana:
whilst Spain contended that she had only ceded the _Spanish province_ of
Louisiana, the United States maintained that she had retroceded the
_French colony_. Spain thereupon proposed a line which, "beginning at the
Gulf of Mexico between the River Carecut or Cascasiu, and the Armenta or
Marmentoa, should go to the north, passing between Adaes and Natchitoches,
until it cuts the Red River," on the ground that the Arroyo-Hondo, which
is midway between Natchitoches and Adaes, had been, in fact, considered to
be the boundary in 1763. The United States on the other hand, insisted on
the Rio Bravo del Norte as the western frontier, on the ground that the
settlement of La Salle in the Bay of St. Bernard (Matagorda) carried with
it a right to the territory as far as the Rio Bravo. Beyond the Red River
Spain proposed that the boundary should be determined by commissioners,
after a survey of the territory, then but little known, and a reference to
documents and dates, "which might furnish the necessary light to both
governments upon limits which had never been fixed or determined with
exactness." (State Papers, 1817-18, p. 321.) Such was the proposal made by
Don Pedro Cevallos on the part of Spain, on April 9th, 1805. Messrs.
Pinckney and Moore, in reply, proposed a compromise in connection with the
western frontier, that a line along the River Colorado, from its mouth to
its source, and from thence to the northern limits of Louisiana, should be
the boundary; but the Spanish government declined to accept their
proposal, and the negotiations were not resumed till the year 1817.
Spain had, in the mean time, during the captivity of the Spanish monarch
in France, been unexpectedly deprived of the greater part of West
Florida, in 1810, by the United States, without any declaration of war, or
stipulation of peace, which could seem to authorise it. On re-opening the
negotiation in 1817, the Spanish Government, having waived all demands on
this head, proposed to cede the two Floridas to the United States in
exchange for the territory which lies between the River Mississippi and
the well-known limit which now separates, and has separated Louisiana,
when France possessed it, before the year 1764, and even before the death
of King Charles II. of Spain, from the Spanish province of Texas: so that
the Mississippi might be the only boundary of the dominions of his
Catholic Majesty and of those of the United States. (State Papers,
1817-1818, p. 356.)
In the course of the subsequent negotiations, the Spanish commissioner,
Don Luis de Onis, in a letter of the 12th of March 1818, refused to admit
the authority of the grant of Louis XIV. to Crozat as evidence of the
limits of Louisiana, and referred to the memoir drawn up by M. Kerlet, for
many years governor of the province before it was ceded to Spain by the
Treaty of 1763, containing a description of its proper extent and limits.
This memoir had been delivered by the Duc de Choiseul, minister of France,
to the Spanish ambassador at Paris, as a supplement to the Act of Cession
of Louisiana. (State Papers, 1817-18, p. 437.) On the other hand, the
Secretary of State, on the part of the United States, maintained that "the
only boundaries ever acknowledged by France, before the cession to Spain
in Nov. 3, 1762, were those marked out in the grant from Louis XIV. to
Crozat." She always claimed the territory which Spain called Texas, as
being within the limits, and forming part of Louisiana, "which in that
grant is declared to be bounded westward by New Mexico, eastward by
Carolina, and extending inward to the Illinois, and to the sources of the
Mississippi, and of its principal branches." (State Papers, 1817-18, p.
470.)
These discussions were suspended for a short time, in consequence of
difficulties between the two governments respecting the Seminole Indians
in Florida; but on the 24th of October Don Luis d'Onis proposed, that "to
avoid all causes of dispute in future, the limits of the respective
possessions of both governments to the west of the Mississippi shall be
designated by a line beginning on the Gulf of Mexico, between the rivers
Marmentoa and Cascasiu, following the Arroyo-Hondo, between Adaes and
Natchitoches, crossing the Rio Roxo, or Red River, at 32 deg. of latitude and
98 deg. of longitude, from London, according to Melish's map, and thence
running directly north, crossing the Arkansas, the White, and the Osage
Rivers, till it strikes the Missouri, and then following the middle of
that river to its source, so that the territory on the right bank of the
said river will belong to Spain, and that on the left bank to the United
States. The navigation of the Mississippi and Marmentoa shall remain free
to the subjects of both parties." (State Papers, 1818-19, p. 276.)
No proposal had as yet been advanced by either party to carry the boundary
line across the Rocky Mountains till October 31, 1818, when Mr. Adams
offered, as the ultimatum of the United States, a "line from the mouth of
the River Sabine, following its course to 32 deg. N. L., thence due north to
the Rio Roxo, or Red River, following the course of that river to its
source, touching the chain of the Snow Mountains in latitude 37 deg. 25'
north, thence to the summit, and following the chain of the same to 41 deg.,
thence following the same parallel to the South Sea." The Spanish
commissioner, in his reply, undertook to admit the River Sabine instead of
the Marmentoa, on condition "that the line proposed by Mr. Adams should
run due north from the point where it crosses the Rio Roxo till it strikes
the Missouri, and thence along the middle of the latter to its source;"
but in regard to the extension of the line beyond the Missouri, _along the
Spanish possessions to the Pacific_, he declared himself to be totally
unprepared by his instructions to discuss such a proposal. The
negotiations were in consequence broken off. Subsequently, the Spanish
commissioner, having received fresh instructions from his government in a
letter of June 16, 1819, proposed to draw the western boundary line
between the United States and the Spanish territories from the source of
the Missouri to the Columbia River, and along the course of the latter to
the Pacific, which Mr. Adams, on the part of the United States, rejected
as inadmissible. Don Luis d'Onis thereupon, having expressly waived all
questions as to the right of either power to the territory in dispute, and
also as to the limits of Louisiana, proposed that the boundary line, as
suggested by Mr. Adams, should follow the Sabine river to its source,
thence by the 94th degree of longitude to the Red River of Natchitoches,
and along the same to the 95th degree; and crossing it at that point,
should run by a line due north to the Arkansas, and along it to its
source, thence by a line due west till it strikes the source of the River
St. Clemente or Multnomah, in latitude 41 deg., and along that river to the
Pacific Ocean: the whole agreeably to Melish's map. This is another very
remarkable instance of the danger of referring even to the best maps, when
territorial limits are to be regulated by the physical features of a
country. There must have been a monstrous error in Melish's map, which the
Spanish commissioner had before him, if such a line could have been drawn
upon it from the source of the Arkansas _due west_ to the source of the
Multnomah, the modern Willamette River. Mr. Adams, in reply, proposed a
slightly modified line "to the source of the Arkansas in 41 deg., and thence
due west to the Pacific along the parallel of 41 deg. according to Melish's
map up to 1818; but if the source of the Arkansas should fall south or
north of 41 deg., then the line should be drawn due north or south from its
source to the 41st parallel, and thence due west to the sea." This would
have been an intelligible line. Don Luis d'Onis then communicated a
project of a further modified line from the 100th parallel of longitude
west of Greenwich along the middle of the Arkansas to the 42d parallel;
"thence a line shall be drawn westward, by the same parallel of latitude,
to the source of the River San Clemente, or Multnomah, following the
course of that river to the 43 deg. of latitude, and thence by a line due west
to the Pacific Ocean." Another counter project was proposed by Mr. Adams
on the 13th of February, and ultimately it was agreed between the parties
to admit the parallel of 42 deg. from the source of the Arkansas westward to
the Pacific Ocean, with the proviso that if the source of the Arkansas
should be north or south of 42 deg., the line should be drawn from it south or
north to the 42d parallel. It was fortunate that this proviso was adopted,
for actual surveys have since determined the source of the Arkansas to be
at the foot of the Sierra Verde, in about 46 deg. 45' north latitude. On the
other hand, as an illustration of the lamentable want of information on
the part of the Spanish commissioner in respect to the boundary line which
he proposed to be drawn, first of all along the parallel of 41 deg. due west
to the source of the Multnomah, and secondly along the parallel of 42 deg. due
west to the same river, it may be observed, that the source of this river
is ascertained to be very little further south than the 44th parallel of
latitude, as may be seen in the excellent American map attached to
Commander Wilkes' Exploring Expedition, though even so late as in
Mitchell's map for 1834 it is placed in about 42 deg.
The Treaty of Washington, or the Floridas, was thus at last concluded on
the 22d February, 1819, and by the third article, after specifying the
boundary line, as above described, between the two countries west of the
Mississippi, it concludes thus: "The two high contracting parties agree to
cede and renounce all their rights, claims, and pretensions to the
territories described by the said line; that is to say, the United States
hereby cede to his Catholic Majesty, and renounce for ever, all their
rights, claims, and pretensions to the territories lying west and south of
the above described line; and in like manner his Catholic Majesty cedes to
the United States all his rights, claims, and pretensions to any
territories east and north of the said line, and for himself, his heirs
and successors, renounces all claim to the said territories for ever."
(Martens' Nouveau Recueil des Traites, v., p. 333.)
It will be observed from the words of the above article, that the nature
of the rights reciprocally ceded are in no manner specified. It thus
becomes necessary to look to the antecedent negotiations to determine this
question. In the first communication from the Chevalier d'Onis, on January
5, 1818, in respect to the western boundary of Louisiana, we find him
assert that "the right and dominion of the Crown of Spain to the
north-west coast of America, as high up as the Californias, is not less
certain and indisputable (than her claim to West Florida,) the Spaniards
having explored as far as the 47th degree in the expedition under Juan de
Fuca in 1592, and in that of Admiral Fonte to the 55th degree in 1640.
"The dominion of Spain in these vast regions being thus established, and
her rights of discovery, conquest, and possession, being never disputed,
she could scarcely possess a property founded on more respectable
principles, whether of the law of nations, of public law, or any others
which serve as a basis to such acquisitions as all the independent
kingdoms and states of the earth consist of." (State Papers, 1817-18, p.
427.)
Mr. Adams, in his reply of January 16, 1818, stated that "the President of
the United States considered it would be an unprofitable waste of time to
enter again at large upon topics of controversy, which were at that time
[1805] so thoroughly debated, and upon which he perceives nothing in your
notes, which was not then substantially argued by Don Pedro Cevallos, and
to which every reply essential to elucidate the rights and establish the
pretensions on the part of the United States was then given." Without,
therefore, noticing even in the slightest manner that portion of the
Spanish title now for the first time set out in respect of the
Californias, and which had not in any manner been alluded to in the
previous correspondence, he simply proposed, "the Colorado River from its
mouth to its source, and from thence to the northern limits of Louisiana,
to be the western boundary; or to leave that boundary unsettled for future
arrangement." It may be observed, that the paramount object of the United
States at this moment, was to obtain the cession of the Spanish claims to
territories _eastward_ of the Mississippi. [State Papers, 1817-18, p.
450.] The western frontier was comparatively of less pressing importance.
Various communications having in the mean time been exchanged, Mr. Adams
at last, in his letter of Oct. 31, 1818, proposed for the first time, on
the part of the United States, an extension of the boundary to the Pacific
Ocean, namely, a line drawn due west along the 41st parallel. He did not
attempt, on this occasion, to contest the position which Spain had taken
up in respect to territory west of the Rocky Mountains, but contented
himself with again asserting, that the rights of the United States to the
entire valley of the Mississippi and its confluents were established
beyond the reach of controversy. Mr. Greenhow [p. 316] observes, "On these
positive assertions of the Spanish minister, Mr. J. Q. Adams, the American
plenipotentiary and Secretary of State, did not consider himself required
to make any comment; and the origin, extent, and value of the claims of
Spain to the north-western portion of America, remained unquestioned
during the discussion."
The Spanish commissioner seems to have regarded the silence of Mr. Adams
as a tacit admission that his position was unassailable, and therefore was
totally unprepared for the proposal of the United States, if we may judge
from his reply:--"What you add respecting the extension of the same line
beyond the Missouri, along the Spanish possessions to the Pacific Ocean,
exceeds by its magnitude and its transcendency all former demands and
pretensions stated by the United States. Confining, therefore, myself to
the power granted to me by my sovereign, I am unable to stipulate any
thing on this point." [State Papers, 1818-19, p. 284.]
Mr. Adams, in his reply of Nov. 30, 1818, [ibid. 291,] writes, "As you
have now declared that you are not authorised to agree, either to the
course of the Red River, [Rio Roxo,] for the boundary, nor to the 41st
parallel of latitude, from the Snow Mountains to the Pacific Ocean, the
President deems it useless to pursue any further the attempt at an
adjustment of this object by the present negotiation." Don Luis, in
withdrawing for the present moment from the negotiation, in his letter of
Dec. 12, 1818, [ibid., p. 502,] observes, "I even expressed my earnest
desire to conclude the negotiation, so far as to admit the removal of the
boundary line, from the Gulf of Mexico, on the river Sabine, as proposed
by you; and I only added, that it should run more or less obliquely to the
Missouri, thereby still keeping in view the consideration of conciliating
the wish that your government might have, of retaining such other
settlements as might have been formed on the bank of that river, and
observing, nevertheless, that it was not to pass by New Mexico, or _any
other provinces or dominions of the crown of Spain_."
The Spanish commissioner, after obtaining fresh instructions to authorize
him to extend the boundary line to the Pacific Ocean, stated in a letter
of Jan. 16, 1819, to Mr. Adams, [State Papers, 1819-20, p. 565,] that "his
Majesty will agree that the boundary line between the two states shall
extend from the source of the Missouri, westward to the Columbia River,
and along the middle thereof to the Pacific Ocean;" in the hope that this
basis would be accepted by the President, "as it presents the means of
realizing his great plan of extending a navigation from the Pacific to the
remotest points of the northern states."
This offer was not accepted, and Mr. Adams, in his reply of Jan. 29, 1819,
simply stated, "that the proposal to draw the western boundary line
between the United States and the Spanish territories on this continent,
from the source of the Missouri to the Columbia River, cannot be
admitted," (ibid. p. 566;) and at the same time he renewed his proposal of
the 31st of October last, as to the parallel of 41 deg.
Don Luis de Onis, as might be expected, did not accede to this, and in his
next letter, of Feb. 1, 1819, writes, "I have proved to you in the most
satisfactory manner, that neither the Red River of Natchitoches, nor the
Columbia, ever formed the boundary of Louisiana; but as you have intimated
to me that it is useless to pursue the discussion any further, I acquiesce
with you therein, and I agree that, keeping out of view the rights which
either party may have to the territory in dispute, we should confine
ourselves to the settlement of those points which may be for the mutual
interest and convenience of both.
"Upon this view, therefore, of the subject, and considering that the
motive for declining to admit my proposal of extending the boundary line
from the Missouri to the Columbia, and along that river to the Pacific,
appears to be the wish of the President to include, within the limits of
the Union, all the branches and rivers emptying into the said River
Columbia, I will adapt my proposals on this point, so as fully to satisfy
the demand of the United States, without losing sight of the essential
object, namely, that the boundary line shall, as far as possible, be
natural and clearly defined, and leave no room for dispute to the
inhabitants on either side."
He therefore proposed, as the Red River rose within a few leagues of Santa
Fe, the capital of New Mexico, to substitute the Arkansas for the Red
River; so that the line along the Red River should not be drawn further
westward than the 95th degree of longitude, and crossing it at that point,
should run "due north to the Arkansas, and along it to its source; thence,
by a line due west, till it strikes the source of the River St. Clemente,
or Multnomah, in latitude 41 deg., and along that river to the Pacific Ocean.
The whole agreeably to Melish's map."--(State Papers, 1819-20, p. 568.)
Mr. Adams on the other hand, on Feb. 6, 1819, repeated the proposal of the
United States as to the line from the source of the Arkansas River being
drawn along the parallel of 41 deg. N. L. to the Pacific, with other
modifications in the general detail of the boundary.
This proposal, however, was not accepted, and the Spanish commissioner in
his turn, on Feb. 9, proposed a different line, to be drawn "along the
middle of the Arkansas to the 42 deg. of latitude; thence a line shall be
drawn westward by the same parallel of latitude to the source of the River
San Clemente or Multnomah, following the course of that river to the 43 deg.
of latitude, and thence by a line to the Pacific Ocean." (Ibid. p. 570.)
Mr. Adams, in his answer of February 13, 1819, still retained the
parallel of 41 deg. of latitude from the source of the Arkansas to the South
Sea, according to Melish's map. (Ibid. p. 575.)
The Chevalier de Onis, on the 16th of February 1819, ultimately agreed "to
admit the 42 deg. instead of the 43 deg. of latitude from the Arkansas to the
Pacific Ocean." (Ibid. p. 580.)
These extracts from the documentary correspondence preliminary to the
Treaty of 1819, will show the nature of the claims maintained by the two
parties, and thus serve to explain the meaning of the third article of the
treaty. Spain asserted her right and dominion over the northwest coast of
America as high up as the Californias, as based upon the discoveries of
Juan de Fuca in 1592, and Admiral Fonte in 1640. The United States made
_no claim_ to territory west of the Rocky Mountains. On the other hand,
the United States asserted her right over the coasts of the Mexican Gulf
from the Mississippi to the Rio Bravo by virtue of Crozat's grant, and of
the settlement of La Salle in the Bay of St. Bernard, whilst Spain
maintained that the expedition of Hernando de Soto and others entitled her
by discovery to the entire coasts of the Mexican Gulf, and that the crown
of Spain, before 1763, had extended her dominion eastward over the right
side of the Mississippi from its mouth to the mouth of the Missouri, and
northward over the right side of the latter river from its mouth to its
source; in other words, that the dependencies of the Spanish province of
New Mexico extended as far as the Missouri and the Mississippi, and the
Spanish province of Texas as far as the Red River and Mississippi. The
rights, claims, and pretensions, therefore, to any territories lying east
and north of the parallel of 42 deg., which Spain, by the 3rd article of the
Treaty of 1819, ceded to the United States, had respect to the Spanish
province of Texas, the Spanish province of New Mexico, and the
Californias; the rights, claims, and pretensions which the United States
ceded to his Catholic Majesty to any territories west and south of this
line, had reference to the coasts of the Gulf of Mexico as far the Rio
Bravo, and the inland country; for no claim or pretension had been
advanced by the United States to territory beyond the Rocky Mountains, and
the object of the negotiation was expressly to determine the boundaries of
Louisiana, which the United States insisted had been ceded to them in the
full extent in which it had been possessed by France, according to the
limits marked out by Louis XIV. in his grant to Crozat.
In the course of these negotiations, we find certain principles of
international law laid down by the commissioners of the United States as
applicable to the question of disputed boundaries. They seem to have been
advanced after careful consideration, for Messrs. Pinckney and Monroe
formally enunciated them on the 20th of April 1805, as "dictated by
reason, and adopted in practice by European Powers in the discoveries and
acquisitions which they have respectively made in the new world;" and Mr.
Adams, on the 12th of March 1820, restated them again as principles
"sanctioned alike by immutable justice, and the general practice of the
European nations, which have formed settlements and held possessions in
this hemisphere." (British and Foreign State Papers, 1817-18, pp. 327,
467.)
The _first_ is, "That whenever _any European nation takes possession of
any extent of sea-coast_, that possession is understood as extending into
the interior country, to the sources of the rivers emptying _within that
coast_, to all their branches, and the country they cover, and to give it
a right in exclusion of all other nations to the same."
"It is evident," write Messrs. Pinckney and Monroe, (ibid., p. 327,) "that
some rule or principle must govern the rights of European Powers in regard
to each other in all such cases, and it is certain that none can be
adopted, in those to which it applies, more reasonable or just than the
present one. Many weighty considerations shew the propriety of it. Nature
seems to have destined a range of territory so described for the same
society, to have connected its several parts together by the ties of a
common interest, and to have detached them from others. If this principle
is departed from, it must be by attaching to such discovery and
possession, a more enlarged or contracted scope of acquisition; but a
slight attention to the subject will demonstrate the absurdity of either.
The latter would be to restrict the rights of a European Power, who
discovered and took possession of a new country, to the spot on which its
troops or settlements rested, a doctrine which has been totally disclaimed
by all the Powers who made discoveries and acquired possessions in
America. The other extreme would be equally improper; that is, that the
nation who made such discovery should, in all cases, be entitled to the
whole of the territory so discovered. In the case of an island, whose
extent was seen, which might be soon sailed round, and preserved by a few
forts, it may apply with justice; but in that of a continent it would be
absolutely absurd. Accordingly, we find, that this opposite extreme has
been equally disclaimed and disavowed by the doctrine and practice of
European nations. The great continent of America, north and south, was
never claimed or held by any one European nation, nor was either great
section of it. Their pretensions have been always bounded by more moderate
and rational principles. The one laid down has obtained general assent.
"This principle was completely established in the controversy which
produced the war of 1755. Great Britain contended that she had a right,
_founded on the discovery and possession of such territory_, to define its
boundaries by given latitudes in grants to individuals, retaining the
sovereignty to herself from sea to sea. This pretension on her part was
opposed by France and Spain, and it was finally abandoned by Great Britain
in the treaty of 1763, which established the Mississippi as the western
boundary of her possessions. _It was opposed by France and Spain on the
principle here insisted on, which of course gives it the highest possible
sanction in the present case._"
To a similar purport Vattel, b. i., Sec. 266, writes: "When a nation takes
possession of a country, with a view to settle there, it takes possession
of every thing included in it, as lands, lakes, rivers, &c." It is
universally admitted, that when a nation takes possession of a country,
she is considered to appropriate to herself all its natural appendages,
such as lakes, rivers, &c., and it is perfectly intelligible, why the
practice of European nations has sanctioned the exclusive title of the
first settlers on any extent of sea-coast to the interior country within
the limits of the coast which they have occupied, because their
settlements bar the approach to the interior country, and other nations
can have no right of way across the settlements of independent nations. In
reference, however, to the extent of coast, which a nation may be presumed
to have taken possession of by making a settlement in a vacant country,
the well-known rule of _terrae dominium finitur, ubi finitur armorum vis_,
might on the first thought suggest itself; but it has not been hitherto
held that there is any analogy between jurisdiction over territory, and
jurisdiction over adjoining seas: on the contrary, it was ruled in the
Circuit Court of New York, 1825, in the case of Jackson v. Porter, 1
Paine, 457, "that under the second article of the treaty with Great
Britain, the precincts and jurisdiction of a fort are not to be considered
three miles in every direction, by analogy to the jurisdiction of a
country over that portion of the sea surrounding its coasts, but they must
be made out by proof." The comity of nations, however, has recognised in
the case of settlements made in a vacant territory for the purpose of
colonisation, a title in the settlers to such an extent of territory as it
may fairly be presumed that they intend to cultivate (Vattel, b. i., Sec.
81,) and the possession of which is essential either to the convenience or
security of the settlement, without being inconvenient to other nations.
The limitation of this extent seems rather to have been regulated by
special conventions, than by any rule of uniform practice.
On the authority of this principle as above stated, Messrs. Pinckney and
Monroe contended that "by the discovery and possession of the Mississippi
in its whole length, and _the coast adjoining it_, the United States are
entitled to the whole country dependent on that river, the waters which
empty into it, and their several branches, _within the limits on that
coast_. The extent to which this would go it is not in our power to say;
but the principle being clear, dependent on plain and simple facts, it
would be easy to ascertain it."
It will have been observed, that the opposition of France and Spain to the
pretensions of Great Britain is adduced by Messrs. Pinckney and Monroe, as
giving the highest sanction to this principle. A passage in Mr. Calhoun's
letter of Sept. 3, 1844, to Mr. Pakenham forms a striking contrast. Having
alluded to the claims of France and Great Britain, first conflicting on
the banks of the Ohio, he writes: "If the relative strength of these
different claims may be tested by the result of that remarkable contest,
that of continuity westward must be pronounced to be the stronger of the
two. England has had at least the advantage of the result, and would seem
to be foreclosed against contesting the principle--particularly as against
us, who contributed so much to that result, and on whom that contest, and
her example and her pretensions from the first settlement of our country,
have contributed to impress it so deeply and indelibly." In other respects
Mr. Calhoun adopts the same view of the early European settlements in
North America, that the respective nations "claimed for their settlements
usually, specific limits _along the coasts_ or bays on which they were
formed, and generally a region of _corresponding width_ extending across
the entire continent to the Pacific Ocean."
That the hypothesis of Mr. Calhoun's argument was meant to be affirmed,
may be inferred from Mr. Gallatin having categorically asserted the same
fact in 1826, as being notorious. It does not however appear from the
protracted negotiations prior to the Treaty of Paris, that any conflicting
principles of international law were advanced by the two parties, or any
question of disputed title set at rest by the treaty. On the contrary, it
was intimated in the course of the negotiations, by Great Britain, that
she considered France to have the natives on the left bank of the
Mississippi under her protection, when she proposed that the King of
France should "consent to leave them under the protection of Great
Britain."
The _second_ rule is, "that whenever a European nation makes a discovery,
and takes possession of any portion of that continent, and another
afterwards does the same _at some distance from it_, where the boundary
between them is not determined by the principle above mentioned, the
middle distance becomes such of course. The justice and propriety of this
rule are too obvious to require illustration."
The principle here stated seems very analogous to that which is recognised
by all writers on international law, as regulating the navigation of
rivers. Thus Vattel (i., Sec. 266)--"When a nation takes possession of a
country bounded by a river, she is considered as appropriating to herself
the river also; for the utility of a river is too great to admit a
supposition that the nation did not intend to reserve it for herself.
Consequently, the nation that first established her dominion on one of the
banks of the river, is considered as being the first possessor of all that
part of the river which bounds her territory. Where there is a question of
a _very broad river_, this presumption admits not of a doubt, so far, at
least, as relates to a part of the river's breadth, and the strength of
the presumption increases or diminishes in the inverse ratio with the
breadth of the river; for the narrower the river is, the more does the
safety and convenience of its use require that it should be subject
entirely to the empire and property of that nation." To make the reasoning
more complete, it might have been added, "the broader the river is, the
stronger claim has each party to a portion of it, as requisite for its
own convenience, and not likely to be attended with inconvenience to the
other party."
Mr. Wheaton states the rule of division more explicitly (part ii., ch.
iv.)--"Where a navigable river forms the boundary of conterminous states,
the middle of the channel, or 'thalweg,' is generally taken as the line of
separation between the two states, the presumption of law being, that the
right of navigation is common to both: but this presumption may be
destroyed by actual proofs of prior occupancy, and long undisturbed
possession giving one of the riparian proprietors the exclusive title to
the entire river."
In an analogous manner, where a large tract of unoccupied land forms the
boundary of conterminous settlements, the middle distance is suggested by
natural equity as the line of demarcation, where such line is not
inconvenient to either party, and when one party cannot establish a
stronger presumption than the other of a perfect right in its own favour.
Thus, Messrs. Pinckney and Monroe contended, that "by the application of
this principle to the discovery made by M. de la Salle of the bay of St.
Bernard, and his establishment there on the western side of the River
Colorado, the United States have a just right to a boundary founded on the
middle distance between that point and the then nearest Spanish
settlement; which, it is understood, was in the province of Panuco, unless
that claim should be precluded on the principle above mentioned. To what
point that would carry us, it is equally out of our power to say; nor is
it material, as the possession in the bay of St. Bernard, taken in
connection with that on the Mississippi, has been always understood, as of
right we presume it ought, to extend to the Rio Bravo, on which we now
insist."
The _third_ rule is, "that whenever any European nation has thus acquired
a right to any portion of territory on that continent, that right can
never be diminished or affected by any other Power, by virtue of purchases
made, by grants, or conquests of the natives within the limits described."
"It is believed," continued the commissioners, "that this principle has
been admitted, and acted on invariably, since the discovery of America, in
respect to their possessions there, by all the European Powers. It is
particularly illustrated by the stipulations of their most important
treaties concerning those possessions, and the practice under them, viz.,
the Treaty of Utrecht in 1713, and that of Paris in 1763."
The practice of European nations has certainly recognised in the nation
which has first occupied the territory of savage tribes, that live by
hunting, fishing, and roaming habits, the sole right of acquiring the soil
from the natives by purchase, or cession, or conquest, for the purpose of
establishing settlements. The more humane spirit of the modern code of
nations seems disposed to reduce this right to a right of _pre-emption_,
as against other European nations.
The applicability of the above principles to the solution of the questions
at present under discussion between the governments of the United States
and Great Britain, will be considered in a subsequent chapter.