NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1826-27.
Revival of Negotiations.--Written Statements of respective
Claims.--The United States.--Great Britain.--Rights supposed to be
derived from the Acquisition of Louisiana.--Jefferys' French
America.--Cession of Canada.--The Illinois Country.--Treaty of
Utrecht.--Treaty of Paris.--French Maps.--Charters.--Declaration of
Court of France in 1761, as to respective Limits of Canada and
Louisiana.--Contiguity of Territory.--Hudson's Bay
Territories.--Atlantic Colonies.--Cession by France of the left Bank
of the Mississippi.--Mr. Gallatin's Doctrine of
Contiguity.--Assumptions not admissible.--Claim to an exclusive Title
by Contiguity.--Argument from Numbers.--Derivative Title from
Spain.--Meaning of the Word "Settlement" in the Treaty of the
Escurial.--Mr. Gallatin's Doctrine respecting "Factories."--Intermixed
Settlements not incompatible with distinct Jurisdiction.--The
Convention contained a mutual Recognition of Rights.--General Law of
Nations may be appealed to as supplementary to the Treaty.--Priority
of Settlement.--Vattel.--Territory in use never granted for the
purpose of making Settlements.--Treaty of Paris.--Usufructuary
Right.--Settlements not to be disturbed.--Territory in chief not
reserved.--Convention of 1827.
The subject of a definitive arrangement of the respective claims of the
two nations to the country west of the Rocky Mountains, the sovereignty
over which had been placed in abeyance for ten years by the Convention of
1818, was once more revived in 1826, on the arrival in London of Mr.
Gallatin, with full powers from the United States to resume the
discussion. The British commissioners renewed their former proposal of a
boundary line drawn along the 49th parallel from the Rocky Mountains to
M'Gillivray's River, the north-eastern branch of the Columbia, and thence
along that river to the Pacific Ocean, and subsequently "tendered in the
spirit of accommodation" the addition of a detached territory on the north
side of the river, extending from Bulfinch's (Gray's or Whidbey's) Harbour
on the Pacific, to Hood's Canal on the Straits of Fuca. Mr. Gallatin, on
his part, confined himself to the previous offer of the 49th parallel to
the Pacific, with the free navigation to the sea of such branches of the
Columbia as the line should cross at points from which they are navigable
by boats. The claims of the two nations were on this occasion formally set
forth in written statements, and annexed to the protocol of the sixth and
seventh conferences respectively. They were published with President
Adams's Message to Congress of December 12, 1827, and are both inserted in
full in the _second_ edition of Mr. Greenhow's History, lately published.
The British statement alone was published in his first edition, but the
United States' counter-statement, a very able paper, which was a great
desideratum, has been annexed to the second edition.
It is much to be regretted that so interesting a collection of state
papers as the documents of Congress contain, are almost inaccessible to
the European reader, since a complete collection is not to be met with in
any of our great public libraries in England or France--those of the
British Museum, for example, and of the Chamber of Deputies, having been
in vain consulted for this purpose. It was intended to annex both the
written statements on this occasion in an Appendix to the present work,
but the recent publication of the negotiations of 1844-5, has rendered
this step unnecessary.
On this occasion Mr. Gallatin grounded the claims of the United
States--first of all upon their acquisition of Louisiana, as constituting
as strong a claim to the westwardly extension of that province over the
_contiguous_ vacant territory, and to the occupation and sovereignty of
the country as far as the Pacific Ocean; and, secondly, on the several
discoveries of the Spanish and American navigators. These distinct titles,
it was maintained, "Though in different hands, they would conflict with
each other, being now united in the same Power, supported each other. The
possessors of Louisiana might have contended, on the ground of contiguity,
for the adjacent territory on the Pacific Ocean, with the discoveries of
the coast and of its main rivers. The several discoveries of the Spanish
and American navigators might separately have been considered as so many
_steps in the progress of discovery, and giving only imperfect claims to
each party_. All these various claims, from whatever consideration
derived, are now brought united against the pretensions of any other
nation."
"These united claims," it was urged, "established a stronger title to the
country above described, and along the coast as far north, at least, as
the 49th parallel of latitude, than has ever, at any former time, been
asserted by any nation to vacant territory."
The British commissioners, Messrs. Huskisson and Addington, on their part,
maintained that the titles of the United States, if attempted to be
combined, destroyed each other--if urged singly, were imperfect titles.
Great Britain claimed _no exclusive sovereignty_ over any portion of the
territory. As for any exclusive Spanish title, that was definitively set
at rest by the Convention of Nootka, and the United States necessarily
succeeded to the limitations by which Spain herself was bound. In respect
to the French title, Louisiana never extended across the Rocky Mountains
westward, unless some tributary of the Mississippi crossed them from east
to west; but assuming that it did even extend to the Pacific, it belonged
to Spain equally with the Californias, in 1790, when she signed the
Convention of Nootka; and also subsequently, in 1792, when Gray first
entered the mouth of the Columbia. If then Louisiana embraced the country
west of the Rocky Mountains, to the south of 49 deg., it must have embraced
the Columbia itself, and consequently Gray's discovery must have been made
in a country avowedly already appropriated to Spain; and if so
appropriated, necessarily included, with all other Spanish possessions and
claims in that quarter, in the stipulations of the Nootka Convention.
As the rights supposed to be derived from the acquisition of Louisiana
were on this occasion for the first time set up by the United States, and
formed a leading topic in Mr. Gallatin's counter-statement, their novelty,
as well as the important consequences attempted to be deduced from them,
entitled them to precedence in the order of inquiry over the derivative
Spanish title, and the original title of the United States, the more so,
as the two latter have been already briefly examined. It would seem that
Mr. Gallatin did not attempt to extend the boundaries of the colony of
Louisiana, beyond the valley of the Mississippi and its tributaries.
Crozat's grant would of itself be evidence against any extension of the
French title in this respect. But he contended, that "by referring to the
most authentic French maps, New France was made to extend over the
territory drained by rivers entering into the South Seas. The claim to a
westwardly extension to those seas was thus early asserted, as part, not
of Louisiana, but of New France. The king had reserved to himself, in
Crozat's grant, the right of enlarging the government of Louisiana. This
was done by an ordinance dated in the year 1717, which annexed the
Illinois to it, and from that time, the province extended as far as the
most northern limit of the French possessions in North America, and
thereby west of Canada or New France. The settlement of that northern
limit still further strengthens the claim of the United States to the
territory west of the Rocky Mountains."
The meaning of this passage is rather obscure, but it seems to imply, that
by the annexation of the Illinois the province of Louisiana was extended
to the most northern limit of the French possessions in North America, and
_thereby_ cut off the western portion of Canada or New France, and so
consequently extended itself to the South Seas. If this be the correct
view of the argument, then it may be confidently asserted, that neither of
these positions can be established. In the first place, Crozat's grant, on
which the United States expressly and formally relied in the negotiations
with Spain, defined the country of Louisiana to be bounded on the west by
New Mexico, on the east by Carolina, and northwards to comprise the
countries along the River St. Louis (Mississippi) from the sea-shore to
the Illinois, together with the River St. Philip, formerly called the
Missouries River, and the St. Jerome, formerly called Wabash, with all the
countries, territories, lakes in the land, and the rivers emptying
directly or indirectly into _that part_ of the river St. Louis. The words
of the grant, if strictly interpreted, limit the province on _both sides_
of the Mississippi _to that part from the sea-shore to the Illinois_, as
both the Missouri and the Wabash (Ohio) unite with the Mississippi below
the Illinois. But it seems to have been practically held, that Louisiana
extended along the western bank of the Mississippi to its source. Thus we
find in Jefferys' History of the French Dominions in America, published in
1760, Louisiana thus described:--"The province of Louisiana, on the
southern part of New France, extends, according to the French geographers,
from the Gulf of Mexico in about 29 deg. to near 45 deg. north lat. on the western
side, (the sources of the Mississippi being laid down in Jefferys' map in
about 45 deg.,) and to near 39 deg. on the eastern, and from 86 deg. to near 100 deg. W.
longitude from London. It is bounded on the north by Canada, on the east
by the British colonies of New York, Pennsylvania, Maryland, Virginia,
North and South Carolina, Georgia, and by the peninsula of Florida; on the
south by the Gulf of Mexico; and lastly, on the west by New Mexico." This
description evidently omits the Illinois, but the annexation of the
Illinois in 1717 did not give to the province of Louisiana the indefinite
extent northward which Mr. Gallatin suggests, for the Marquis de
Vaudreuil, in ceding the province of Canada to Sir J. Amherst, in 1760,
according to his own letter, (Annual Register, 1761, p. 168,) expressly
described Louisiana as extending on the one side to the carrying-place of
the Miamis, and on the other to the head of the river of the Illinois. The
Illinois country itself was a limited district, watered by a river of that
name, which had been so called from an Indian nation settled on its banks.
This tribe or nation was said to have migrated from the west, along the
banks of the Moingona, (the Riviere des Moines,) down to its junction with
the Mississippi: it had then established itself a little lower down on the
eastern side of the Mississippi, in an exceedingly fertile valley, watered
by a tributary of that river, to which it gave its own name of Illinois.
The French settlement was in this district, according to Jefferys: its
commodious situation enabled it to keep up the communication between
Canada and Louisiana, and the fertility of the soil rendered it the
granary of Louisiana. It may be perfectly true that Illinois was the most
northern limit of the French _possessions_ in North America, if by the
term _possessions_ is meant the territory in which they had made
settlements; but if the term is intended to include the territory in which
they claimed a right to found settlements, the statement would not be
correct.
By the Treaty of Utrecht, the British had precluded themselves from
passing over the limits of the territory of the Bay of Hudson, and all the
country south of those limits would be considered amongst "the places
appertaining to the French," in other words, would be part of New France.
But the southern boundary of the Hudson's Bay territory would be much to
the northward of the Illinois country; the intermediate district, it is
true, was peopled with various Indian tribes, but the French, as against
Great Britain, by the Treaty of Utrecht, had an exclusive title to the
country. By the Treaty of Paris in 1763, that title passed from France to
Great Britain, and in pursuance of the rights so acquired by the crown of
England, a proclamation was issued, reserving to the Indians, as hunting
grounds, all the territories not included within the government of Quebec,
or the limits of the territory granted to the Hudson's Bay Company, and
enjoining all persons whatever, who should have seated themselves in them,
to remove forthwith from such settlements. (Annual Register, 1763, p.
212.) It would thus appear, if New France ever extended across the
continent of America to the Pacific Ocean, the portion of it north of the
sources of the Mississippi, and of the Illinois River, passed into the
hands of Great Britain, on the ratification of the Treaty of Paris. The
claim, however, to the westwardly extension of New France to the Pacific
Ocean, requires some better evidence than the maps of the French
Geographers. A map can furnish no proof of territorial title: it may
illustrate a claim, but it cannot prove it. The proof must be derived from
facts, which the law of nations recognises as founding a title to
territory. Maps, as such, that is, when they have not had a special
character attached to them by treaties, merely represent the _opinions of
the geographers_ who have constructed them, which opinions are frequently
founded on fictitious or erroneous statements: e. g., the map of the
discoveries in North America by Ph. Buache and J. N. de Lisle, in 1750, in
which portions of the west coast of America were delineated in accordance
with De Fonte's story, (supra, Ch. IV.,) and the maps of north-west
America at the end of the seventeenth and beginning of the eighteenth
centuries, which represent California as lately ascertained to be an
island. An examination of the collection in the King's Library at the
British Museum, will remove all scepticism on this head. Such documents
are entitled, of themselves, to far less consideration from foreign
Powers, than the charters of sovereigns. These, indeed, may be binding on
the subjects of the sovereigns by their own inherent authority, but
against other nations, they must be supported expressly, on the face of
them at least by some external authority, which the law of nations
acknowledges. Thus, we find generally the title of discovery recited in
the preamble of charters; it is, however, competent for other nations to
dispute this title, or to dispute the extent to which the grant goes. The
charter of Carolina and Georgia, elsewhere recited, will furnish a case in
point. In these the grant extends westward to the South Seas, but this
would convey no title to the settlers against the French, who barred the
way to the South Seas by their settlements in Louisiana, and who would
dispute the asserted claim, so that the charters would be inoperative in
their full extent.
But when Mr. Gallatin stated, that from the ordonnance of 1717 the
province of Louisiana extended as far as the most northern limit of the
French possessions in North America, and thereby west of Canada or New
France, he has probably overlooked the words of the ultimatum of the Court
of France, of the 5th August 1761, remitted by the Duc de Choiseul to Mr.
Stanley, the British plenipotentiary, in the course of the negotiations in
that year after the surrender of Canada:--"The King of France has, in no
part of his memorial of propositions, affirmed that _all which did not
belong to Canada appertained to Louisiana_; it is even difficult to
conceive such an assertion could be advanced. France, on the contrary,
demanded that the intermediate nations between Canada and Louisiana, as
also between Virginia and Louisiana, shall be considered as neutral
nations, independent of the sovereignty of the two crowns, and serve as a
barrier between them." (Historical Memorial of the Negotiations, published
at Paris by authority, 1761. May be referred to in Jenkinson's Coll. of
Treaties, vol. ii.) Mr. Gallatin says elsewhere, in alluding to royal
charters:--"In point of fact, the whole country drained by the several
rivers emptying into the Atlantic Ocean, the mouths of which were within
those charters, has from Hudson's Bay to Florida, and it is believed
without exception, been occupied and held by virtue of those charters. Not
only has this principle been fully confirmed, but it has been notoriously
enforced, much beyond the sources of the rivers on which the settlements
were formed. The priority of the French settlements on the rivers flowing
westwardly from the Alleghany Mountains into the Mississippi, was
altogether disregarded; and the rights of the Atlantic colonies to extend
beyond those mountains, as growing out of the _contiguity of territory_,
and as asserted in the earliest charters, was effectually and successfully
enforced." In reply to these remarks it may be observed, that the limits
of the Hudson's Bay territory were settled by the Treaty of Utrecht, in
1713, those of the Atlantic colonies by the Treaty of Paris, 1763, and in
the preliminary negotiation no allusion is any where made to rights
founded on charters, or to rights of _contiguity_. On the contrary, in
regard to the Hudson's Bay territories, the peaceable acquiescence of the
Marquis de Frontenac, then Governor of Canada, in the settlement of the
Bay of Hudson by the English company, was maintained to be a bar to any
claims on the part of the French to question, at a subsequent period, the
title of which the British crown asserted on the grounds of _discovery_.
Again, in respect to the Atlantic colonies, their right to extend
themselves to the banks of the Mississippi was never enforced against the
French, "as growing out of the contiguity of territory, and as asserted in
the earliest charters." On the contrary, in the negotiations of 1761, it
was admitted by Great Britain, that in respect to the course of the Ohio,
and the territories in those parts, the pretensions of the two crowns had
been _contentious_ before the surrender of Canada, and in respect to the
nations on the east bank of the Mississippi, Great Britain confined
herself to asserting that they had been always reputed to be under her
protection, and proposed to the French King, that "for the advantage of
peace, he should consent to leave the intermediate countries under the
protection of Great Britain, and particularly the Cherokees, the Creeks,
the Chicosaws, the Chactaws, and another nation, situate between the
_British settlements and the Mississippi_." The result of these and
subsequent negotiations was, that France, by the seventh article of the
Treaty of Paris, agreed that the limits of the British and French
territories respectively should be fixed by a line drawn along the middle
of the Mississippi, from its source to the River Iberville [depuis sa
naissance jusqu'a la riviere d'Iberville,] and ceded to Great Britain all
that she possessed or was entitled to possess, on the left bank of the
Mississippi, with the exception of New Orleans.
This cession by France of all that she possessed, or was entitled to
possess, on the left bank of the River Mississippi, would convey to Great
Britain all her title to the Illinois and other districts north of the
Illinois country, if she possessed any; but she could only possess any
title to them as forming part of the dependencies of Canada or New France.
Out of these, indeed, the province of Louisiana had been carved by the
grant to Crozat in 1712, and from these the Illinois territory had been
detached in 1717, by the charter of Law's Mississippi Company; the
remainder, such as it was, had retained its original character of New
France or Canada unchanged, as well as its original limits, such as they
had been determined to be, either by special commissioners, in pursuance
of the provisions of the Treaty of Utrecht, or by an understanding between
the crowns of France and Great Britain. If therefore the French had any
possessions in America north of the sources of the Mississippi, as
Louisiana did not extend further north than those sources, they must have
been part of the original province of Canada, and have been ceded to Great
Britain with Canada and all her dependencies. The western boundary of
Louisiana was never attempted to be extended by the French beyond the
limits of Crozat's grant, by which Louisiana was expressly defined to be
bounded by New Mexico on the west, and impliedly by the head-waters of the
Missouri river.
"The actual possession," Mr. Gallatin maintained, "and populous
settlements of the valley of the Mississippi, including Louisiana, and now
under one sovereignty, constitute a strong claim to the westwardly
extension of that province over the _contiguous_ vacant territory, and to
the occupation and sovereignty of the country as far as the Pacific Ocean.
If some trading factories on the shores of Hudson's Bay have been
considered by Great Britain as giving an exclusive right of occupancy as
far as the Rocky Mountains; if the infant settlements on the more southern
Atlantic shores justified a claim thence to the South Seas, and which was
actually enforced to the Mississippi, that of the millions already within
the reach of those seas cannot consistently be resisted. For it will not
be denied that the extent of contiguous territory, to which an actual
settlement gives a prior right, must depend, in a considerable degree, on
the magnitude and population of that settlement, and on the facility with
which the vacant adjoining land may, within a short time, be occupied,
settled, and cultivated by such population, as compared with the
probability of its being thus occupied and settled from another quarter."
In examining Mr. Gallatin's argument in the above passage, it will be seen
that he assumes, as the foundation of it, two suppositions as to the
Hudson's Bay factories and the settlements on the Atlantic shores, which
are not admissible. Great Britain never considered her right of occupancy
up to the Rocky Mountains to rest upon the fact of her having established
factories on the shores of the Bay of Hudson, i. e., upon her title by
mere settlement, but upon her title by discovery confirmed by settlements,
in which the French nation, her only civilised neighbour, acquiesced, and
which they subsequently recognised by treaty: and in regard to the infant
settlements on the Atlantic shores, they were planted there either by
virtue of discovery, as in the case of Virginia, or else upon the plea of
the territory "not yet being cultivated or planted, and only inhabited by
some barbarous people," as in the case of the Carolinas, which, though
occupied successively for a time by Spanish and by French settlers, had
been abandoned by all European nations from the year 1567 till 1663, when
Charles II. granted letters patent to the Earl of Clarendon and seven
others, asserting a title to it by virtue of the discoveries of Sebastian
Cabot, and its abandonment by other Powers. If, therefore, the British
crown asserted a right of extending its settlements beyond the heads of
the rivers emptying themselves into the Atlantic to the South Seas, it was
not by virtue of its infant settlements, but by the same title, whatever
it might be, which, according to the practice of nations, would authorise
it to make those settlements, since the claim was asserted in the very
charters which empowered the settlement to be made. But the settlement was
limited to lands "not yet cultivated or planted," in other words, _to
vacant territory_. Was the claim then actually enforced by the British to
the Mississippi? The history of the Treaty of Paris furnishes a negative
answer to the question. The claim, indeed, which Mr. Gallatin attempts to
set up, is to an _exclusive title by contiguity_. But such a title can
only be founded on necessity, when the law of self-preservation is
paramount to all other considerations. Convenience alone will not
establish an absolute title, though it may found a conditional title,
subject to the acquiescence of other States: but the reason which Mr.
Gallatin alleged in support of the title by contiguity; namely, the
facility with which the vacant territory would be occupied by the teeming
population of the United States, is but a disguised appeal to the
principle of the _vis major_, and strikes at the root of the fundamental
axiom of international law, that all nations are upon a footing of perfect
equality as to their obligations and rights. "Power or weakness," observes
Vattel, "does not in this respect produce any difference. A dwarf is as
much a man as a giant: a small republic is no less a sovereign state than
the most powerful kingdom;" so that every argument which rests on the
grounds that the millions already within reach of the Pacific Ocean,
entitle the United States by their numbers to the occupation and
sovereignty of the country, to the exclusion of Great Britain, is out of
place where questions of greater right, and not of greater interest, are
under discussion. It should however not be forgotten, in discussing the
probability of the Oregon Territory being occupied from any other quarter
than the United States, that British subjects are restricted by the
charter of the Hudson's Bay Company from settling there, it being declared
in that charter, "that no British subjects, other than and except the
said Governor and Company, and their successors, and the persons
authorised to carry on exclusive trade by them, shall trade with the
Indians" within such parts of North America as are "to the northward and
to the westward of the lands and territories belonging to the United
States of America."
In respect to the derivative title from Spain, Mr. Gallatin, in admitting
the Convention of the Escurial to be now in force, as being of a
commercial nature, and therefore renewed, in common with all the treaties
of commerce existing previously to the year 1796, between Spain and Great
Britain, by the treaty signed at Madrid on August 28, 1814, (Martens'
Traites, Nouveau Recueil, iv., p. 122,) contended in the first place that
the word "settlement" was used in the third and fifth articles of the
convention, in the narrower sense which Mr. Rush had endeavoured to attach
to it in the negotiations of 1824, namely, as "connected with the commerce
to be carried on with the natives;" and, secondly, that if the word
"settlement" was employed in its most unlimited sense, still that the
provisions of the convention had no connection with an ultimate partition
of the country for the purposes of permanent colonisation. The truth of
the last observation, to a certain extent, is self-evident, from the fact
of the ultimate partition of the country being still the subject of
discussion; but in respect to the word "settlement," some objections to
the attempt to narrow its meaning have been already stated, and may be
referred to above, (p. 291-297.) A few further observations, however, may
not be superfluous. Mr. Gallatin, in another part of his counter-statement
says, "It is also believed, that mere factories, established solely for
the purpose of trafficking with the natives, _and without any view to
cultivation and permanent settlement_, cannot, of themselves, and
unsupported by any other consideration, give any better title to dominion
and absolute sovereignty, than similar establishments made in a civilised
country."
If we admit, for the sake of the argument, that temporary trading
stations, erected without any view to cultivation and permanent
settlement, cannot of themselves establish a title to exclusive dominion
and sovereignty, this very fact alone would be conclusive to show, from
the provisions of the fifth article, that such trading stations were not
intended by the word "settlement" in the Treaty of the Escurial. The
settlements there contemplated were only to be made in places not already
occupied, and further, "in all places wherever the subjects of either
_shall have made settlements_ since the month of April 1789, _or shall
hereafter make any_, the subjects of the other shall have free access, and
shall carry on _their trade_ without any disturbance or molestation."
Unless the settlements here alluded to would have been considered to give
a title of exclusive sovereignty by the recognised law of nations to the
party which had formed them, if not otherwise specified, this provision
would have been not merely uncalled for, but on the well-known principle
of "expressio unius est exclusio alterius," would have tended to narrow
rather than to enlarge the rights of the other party. The reason, however,
of this "special provision" will be obvious, when it is called to mind
that both Spain and Great Britain carefully excluded foreign Powers from
all trade with their colonies, and that Spain had asserted in the
preliminary negotiations a right of "sovereignty, navigation, and
exclusive commerce to the continent and islands of the South Sea," and had
also maintained, that "although she might not have _establishments or
colonies_ planted upon the coasts or in the ports in dispute, it did not
follow that such coast or port did not belong to her." Unless therefore
some such provision had been introduced into the treaty, the subsequent
settlements on the north-west coast would have been closed against all
foreign traders, in conformity to the general laws of both countries.
But if Mr. Gallatin is justified in advancing, as a principle of
international law, that "mere factories, established solely for the
purpose of trafficking with the natives, and without any view to
cultivation and permanent settlement," such as he alleges the trading
posts of the North-west Company to be, cannot of themselves give a good
title to dominion and absolute sovereignty, he cuts away from under the
United States the ground upon which they had set up their original title
to exclusive sovereignty. For the factory of the Pacific Fur Company at
Astoria, on the south bank of the Columbia, would be, according to this
view, quite as inoperative for the purpose of constituting a title by
settlement in favour of the United States as that of the Hudson's Bay
Company at Fort Vancouver, on the northern Bank, would be ineffectual for
a similar purpose in favour of Great Britain; and, _a fortiori_, the
passing visit of a merchant ship, such as the Columbia, despatched solely
_for the purpose of trafficking with the natives_, and not with the
object of making discoveries, or with any authority to take possession of
territory for purposes of permanent settlement, could never be held
entitled to the consideration which the United States claim to have
attached to it.
Mr. Gallatin observed that "the stipulations of the Nootka convention
permitted promiscuous and intermixed settlements everywhere, and over the
whole face of the country, to the subjects of both parties, and even
declared every such settlement, made by either party, _in a degree common
to the other_. Such a state of things is clearly incompatible with
distinct jurisdiction and sovereignty. The convention therefore could have
had no such object in view as to fix the relations of the contracting
parties in that respect." If, however, it can be shown that such a state
of things _is not incompatible with distinct jurisdiction_, the argument
will fall to the ground.
It appears then to have been decided in the United States Courts, that,
"although the territorial line of a nation, _for the purposes of absolute
jurisdiction_, may not extend beyond the middle of the stream, yet the
right to the use of the whole river or bay _for the purposes of trade_,
navigation, and passage, may be common to both nations." (The Fame, 3
Mason 147, C. C. Maine, 1822, cited in Elliott's American Diplomatic Code,
vol. ii., p. 345.)
Here then we have the principle recognised of _use for the purposes of
trade being in a degree common_ to both nations, yet such a state of
things being _not incompatible with distinct jurisdiction_ and
sovereignty.
Still less would the fact of the convention permitting promiscuous and
intermixed settlements to be made everywhere by the subjects of both
parties be incompatible with distinct jurisdiction; for, as Vattel
observes (l. ii., Sec. 98,) "it may happen that a nation is contented with
possessing only certain places, or appropriating to itself certain rights
in a country that has not an owner, without being solicitous to take
possession of the whole country. In this case, another nation may take
possession of what the first has neglected; but this cannot be done
without allowing all the rights acquired by the first to subsist in their
full and absolute independence. In such cases, it is proper that
regulations should be made by treaty, and this precaution is seldom
neglected among civilised nations."
Mr. Gallatin further continues: "On that subject (jurisdiction and
sovereignty) it (the convention) established or changed nothing, but left
the parties where it found them, and in possession of all such rights,
whether derived from discovery, or from any other consideration, as
belonged to each, to be urged by each, whenever the question of permanent
and separate possession and sovereignty came to be discussed between
them."
It may be perfectly correct to say that the convention "left the parties
where it found them, and in possession of all such rights, whether derived
from discovery or from any other consideration, as belonged to each;" for
the very object of the third article was not the concession of favours,
but the recognition of mutual rights. On the other hand, that it left all
question of rights open, to be urged by each at any future time, as if
there had been no declaration or acknowledgment on the subject, seems not
merely to be at variance with the substance of the third article, but to
be utterly irreconcilable with the preamble of the convention, which
contemplates an amicable arrangement of the differences between the two
Crowns, "which, setting aside all retrospective discussion of the rights
and pretensions of the two parties, should fix their respective situation
for the future on a basis conformable to their true interests, as well as
to the mutual desire with which their said Majesties are animated, of
establishing with each other, in every thing and in all places, the most
perfect friendship, harmony, and good correspondence."
If, indeed, Mr. Gallatin means that whenever the parties should find it
desirable to terminate the condition of _occupation in common_, it would
be competent for either party to appeal to the general law of nations,
subject to the provisions of the treaty, the reason of the thing at once
suggests that recourse must be had to some general principles of law, in a
case for which the treaty does not provide. But the general law of nations
must only be invoked as supplementary to the special law recognised by the
convention. By the special law of the treaty, the mutual right of making
settlements in places not already occupied was acknowledged; but the
rights accruing to either party by virtue of such settlements, when made,
would be determined by the general law of nations. The _reciprocal
liberty_ of free access and unmolested trade with such settlements was
provided for by the fifth article; the treaty, however, was silent as to
the relations of the parties in other respects, after they should have
made settlements. These relations then would be determined by the general
law.
The common right of either party to make settlements in _places not
occupied_ was recognised by the convention. Occupation was thus declared
to be the test of exclusive title, and "territory not occupied," was
impliedly "territory without an owner." Priority of settlement would thus
give as perfect a title under the special law of the convention, as
discovery and settlement under the general law of nations. If this view be
correct, then Vattel supplies the rule of law which would determine the
mutual relations attendant on such settlements. "If at the same time two
or more nations discover and _take possession_ of an island, or _any other
desert land without an owner_, they ought to agree between themselves, and
make an equitable partition; but, if they cannot agree, each will have the
right of empire and the domain in the parts in which _they first
settled_." (l. ii., Sec. 95.)
The mutual right of the two parties to settle in places not yet occupied,
having thus been acknowledged by the convention, the sovereignty was from
the nature of things left in abeyance _pending the establishing of such
settlements_, but there was no provision in the treaty to suspend the
operation of the general law of nations, in respect to the territorial
rights consequent on such settlements. To negative the operation of the
general law, it would be necessary to show that the _dominium utile_, as
distinct from the sovereignty, was all that accrued by such settlements.
But in cases in which the territory in use, (_dominium utile_) as distinct
from the territory in chief (_dominium eminens_,) has been granted by
treaty, such a concession has never been said to be granted "for the
purpose of making settlements," and it may be observed that in such cases,
express reference is made to the party who retains the territory in chief.
Thus in the 17th article of the Treaty of Paris, by which Spain granted to
Great Britain a _usufructuary right_ in the territory of the Bay of
Honduras, it was provided:--
"That his Britannic Majesty shall cause to be demolished the
fortifications which his subjects shall have erected in the Bay of
Honduras, and in _other places of the territory of Spain_ in that part of
the world, four months after the ratification of the present treaty.
"And his Catholic Majesty shall not permit his Britannic Majesty's
subjects or their workmen to be disturbed or molested under any pretence
whatever in _the said places_, in their occupation of cutting, loading,
and carrying away logwood; and for this purpose they may build without
hindrance, and _occupy without interruption_, the houses which are
necessary for themselves or families.
"And his Catholic Majesty assures to them by these articles the full
enjoyment of those advantages and powers on the _Spanish coasts and
territories_, as above stipulated."
In this case it will be seen that his Catholic Majesty granted to Great
Britain the usufructuary right, or, according to the language of the Civil
Law, Jus utendi, fruendi, salva rerum substantia, of the peculiar produce
of the soil of the Bay of Honduras, reserving to himself the property of
the soil, or the territory in chief.
But on looking once more at the words of the 3d article, it was agreed
between the two contracting parties, that "their respective subjects shall
not be disturbed or molested either in navigating or carrying on their
fisheries in the Pacific Ocean or in the South Seas, or in landing on the
coasts of those seas, in places not already occupied, for the purpose of
carrying on their commerce with the natives of the country, or of making
settlements there." Now the only pretext for such disturbance or
molestation would be the claim of territorial right or sovereignty: and
that pretext being formally relinquished by the stipulation not to
disturb, the claim of territorial right, as founded on considerations
anterior to the treaty, was mutually abandoned by either party. Again, the
_subjects_ of either party were declared entitled to make _settlements_ in
places not already occupied. If now there was a reservation of territorial
right in chief by one party, then the families settling there, which is in
effect colonising, (for the cultivation of the soil must be allowed them,)
could not be the subjects of the other party, if they settled and became
domiciled there; yet they are acknowledged to retain their character. Now,
such as the subject is, such is the jurisdiction. If, for instance, the
absolute and sole territory of the north-west coast of America, exclusive
of any other Power, was possessed and retained by Spain, then the
jurisdiction over all persons settling there belonged to Spain: the
residents in that territory were the subjects of Spain _pro hac vice_,
wheresoever they were born, agreeably to the principle admitted all over
Europe, that every man is the subject of the jurisdiction and territory in
which he is domiciled. But British subjects settling in the places not
already occupied on the north-west coast of America could not thereby be
divested of the character of their original domicile, for it was only in
such character that they were entitled not to be disturbed or molested in
their settlements,--it was only under the authority and protection of a
British sovereign that they were entitled to set foot upon the territory.
Other considerations will readily suggest themselves, but it is
unnecessary to pursue the subject further.
These negotiations were brought to a close by the signature of the
Convention of 1827, by which the provisions of the 3d article of the
Convention of 1818 were further indefinitely extended, it being competent
however for either party to abrogate the agreement, on giving twelve
months' notice to the other party.