NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1844-5.
General line of Argument on either Side.--Original Title of the United
States.--Nationality of a Merchant Ship.--Mr. Buchanan's
Statement.--Mr. Rush's View.--The Practice of Nations makes a
Distinction between public and private Vessels.--Tribunals of the
United States.--Laws of South Carolina.--The Distinction rests on the
Comity of Nations.--It is not arbitrary, at the Will of each Nation,
nor can it be disturbed.--Dr. Channing on the Character of Merchant
Ships.--The taking Possession of a vacant Country for the Purpose of
Settlement, is an Act of Sovereignty.--Mr. Gallatin's Letter to Mr.
Astor on the Flag.--Discoveries, as the Groundwork of Territorial
Title, technical.--Lord Stowell.--Inchoate Acts of
Sovereignty.--Vattel.--Title by Discovery, the Creature of the Comity
of Nations.--Gray's first entering the Mouth of the Columbia does not
satisfy the required Conditions.--Heceta's Discovery, in the popular
sense of the Term.--Gray's the first Exploration of the
Mouth.--Expedition of Lewis and Clarke.--Mr. Rush's Mis-statement in
1824, as to the Sources of the Multnomah, and of Clarke's
River.--Inaccuracy in the Statements of Mr. Calhoun, and of Mr.
Buchanan.--The Great Northern Branch of the Columbia not called
Clarke's River by Lewis and Clarke.--Clarke's River supposed by them
to be a Tributary of the Tacoutche-Tesse.--The Tacoutche-Tesse reputed
to be the northernmost Branch of the Columbia River till
1812.--Humboldt's New Spain.--Junction of the Lewis with the Columbia
River.--The northernmost Branch of the Columbia first Explored by
Thomson.--Lewis and Clarke did not encamp and winter on the north Bank
of the Columbia.--Fort Clatsop on the south Bank.--Mr. Packenham's
Counter-statement.--Settlements of the United States.--Mr. Calhoun's
Statement.--Mr. Henry's trading Fort.--Failure of Captain Smith's
Undertaking.--Mr. Astor's Adventure.--Astoria on the south Bank of the
Columbia.--Rival Station of the North-west Company on the Spokan
River.--Astoria not a national Settlement.--No Claim advanced to it by
the United States in the Negotiations preceding the Florida
Treaty.--Astoria transferred to the North-west Company by Sale.--The
United States formally placed in possession of it in 1818.--Mr.
Calhoun's Argument.--Confusion of the Settlement with the
Territory.--The Right of Possession.--The Question at issue in
1818.--Mr. Rush did not then assert a perfect Title.--Mr. Buchanan now
maintains an exclusive Title.--The derivative Title of
Spain.--Inconsistency of the United States Commissioners.--Effect of
the Nootka Convention.--Contrast of the Claims of the Two
Governments.--Mr. Calhoun's Admission as to Heceta's Discovery.--True
Character of the original Title of the United States.--Not an
exclusive Title.--Exclusiveness does not admit of Degree.--The Title
of Spain imperfect by express Convention.--No Rights granted by the
Nootka Convention.--Mr. Buchanan's Statement.--Examination of the
Argument.--Opinions expressed in Parliament in 1790.--Mr. Pitt's
Declaration.
The unexpected publication of the correspondence between Mr. Pakenham, the
British Minister, and Messrs. Calhoun and Buchanan, the Secretaries of
State at Washington, requires that the more important arguments in their
respective statements should be briefly examined, lest the present inquiry
should be thought incomplete. No substantially new topic seems to have
been advanced during the negotiation, but the treatment of several points
in the argument on either side was materially modified. The Commissioners
of the United States appear on this occasion to have relied more
immediately on the original title of the United States than on the
derivative Spanish title which Mr. Rush first set up in 1824, or the
derivative French title which Mr. Gallatin brought forward in 1826. The
British Minister, on the other hand, rested his position more decidedly on
the recognition of the title of Great Britain by the Convention of the
Escurial, and less on the general proof of it by discovery and settlement.
In reference, then, to the original title of the United States, Mr.
Calhoun, in his letter of September 3, 1844, grounded it on the prior
discovery of the mouth of the Columbia River by Captain Gray, on the prior
exploration of the river from its head-waters by Lewis and Clarke in
1805-6, on the prior settlement on its banks by American citizens in
1809-10, and by the Pacific Fur Company at Astoria in 1811, which latter
establishment was formally restored by the British Government in 1818 to
the Government of the United States. Mr. Buchanan, in his letter of July
12, 1845, having briefly recapitulated these alleged facts, says:--"If the
discovery of the mouth of a river, followed up within a reasonable time by
the first exploration of its main channel and its branches, and
appropriated by the first settlements on its banks, do not constitute a
title to the territory drained by its waters in the nation performing
these acts, then the principles consecrated by the practice of civilised
nations ever since the discovery of the New World must have lost their
force. Those principles were necessary to procure the peace of the world.
Had they not been enforced in practice, clashing claims to
newly-discovered territory, and perpetual strife among the nations, would
have been the inevitable result."
It may be as well to examine into the real character of these alleged
facts, before considering how far they warrant the application of the
principle of international law, to which Mr. Buchanan seeks to adapt them.
In regard to the discovery of the mouth of the Columbia River by Capt.
Gray, in the merchant ship Columbia, under the flag of the U. S., Mr.
Calhoun eluded the objection that the Columbia was not a _public_ but a
_private_ ship, by simply observing--"Indeed, so conclusive is the
evidence in his (Gray's) favour, that it has been attempted to evade our
claim on the novel and wholly untenable ground that his discovery was
made, not in a national but private vessel;" and so passed on to other
questions. Mr. Buchanan, on the other hand, devotes a few lines to the
subject:--"The British plenipotentiary attempts to depreciate the value to
the United States of Gray's discovery, because his ship was a _trading_
and not a _national_ vessel. As he furnishes no reason for this
distinction, the undersigned will confine himself to the remark, that a
merchant vessel bears the flag of her country at her masthead, and
continues under its jurisdiction and protection, in the same manner as
though she _had been commissioned for the express purpose of making
discoveries_; besides, beyond all doubt, this discovery was made by Gray;
and to what nation could the benefit of it belong, unless it be to the
United States? Certainly not to Great Britain; and if to Spain, the United
States are now her representative."
Mr. Rush had in a similar manner maintained, "That the ship of Captain
Gray, whether fitted out by the Government of the United States or not,
was a national ship. If she was not so in a technical sense of the word,
she was in the full sense of it, _applicable to such an occasion_. She
bore at her stern the flag of the nation, sailed forth under the
protection of the nation, and was to be identified with the rights of the
nation."
In both these statements it seems to be admitted, that there is a
technical distinction in the nationality of a public ship and of a private
ship; but it is maintained that _for the purposes of discovery_ a merchant
ship, under the command of a private individual, is, in the full sense of
the word, a national ship. This doctrine, however, finds no countenance in
the practice of nations, which, on the contrary, makes a broad
distinction between public and private vessels, in reference to all
territorial questions. Thus the comity of nations attaches to the
nationality of public vessels coming into the ports of a foreign sovereign
different considerations from those with which it regards the nationality
of private vessels. To go no further than the tribunals of the United
States, "a public vessel of war, of a foreign sovereign, coming into our
ports, and demeaning herself in a friendly manner, is exempt from the
jurisdiction of this country," (The schooner Exchange v. M'Faddon, 7
Cranch, 116: Supreme Court of the United States, 1812;) but a private
merchant ship has not that courtesy extended to it, if it ventures _intra
fauces terrae_. For instance, if a British merchant vessel should enter the
port of Charleston, with free negro sailors on board, the nationality of
the flag will not be sufficient to protect them from the operation of the
municipal law, which forbids liberty to the negro within the limits of
South Carolina; and thus it repeatedly happens, that negroes or persons of
colour arriving in the ports of South Carolina, though free subjects of
her Britannic Majesty, and engaged _on board of a British merchant vessel_
in the service of the ship, have been by virtue of the _lex loci_
immediately taken from under _the protection of the British flag_, and
thrown into prison. In an analogous manner, if a merchant ship from
Carolina should enter the port of London, with one or more negro slaves on
board, the mercantile flag of the United States would not preclude them
from the freedom which the soil of Great Britain imparts to all who come
within its precincts.
A public vessel, however, is not entitled, _as a matter of right_, to any
exemption from the jurisdiction of the sovereign whose territory she
enters. For the jurisdiction of every nation within its own territory is
exclusive and absolute, and all limitations to the full and complete
exercise of that jurisdiction must be traced up to the consent of the
nation itself. But the comity of nations regards a public vessel as
representing the sovereignty of the nation whose flag it bears. If it
therefore leaves the high seas, the common territory of all nations, and
enters into a friendly port, it is admitted to the privileges which would
be extended to the sovereign himself. One sovereign, however, can only be
supposed to enter a foreign territory, as his sovereign rights entitle him
to no extra-territorial privileges, under an express licence, or in the
confidence that the immunities belonging to his independent sovereign
station, though not expressly stipulated, are reserved by implication, and
will be extended to him. In a similar manner it is under an implied
licence that a public ship enters the port of a friendly power, and
retains its independent sovereign character, by the courtesy of the nation
within the precincts of whose territorial jurisdiction it has placed
itself. A private ship, on the contrary, entering the ports of a foreign
power, has freedom of access allowed to it upon a tacit condition of a
different kind, namely, that it becomes subject to the municipal laws of
the country. Hence every nation assigns to its mercantile marine a
distinct flag from that which its public ships are authorised to exhibit
as the _credential_ of their representing the sovereign power of the
state.
This distinction between the signification of the respective flags is not
arbitrary, at the will of each nation, but is recognised by the law of
nations: whilst the mercantile flag imparts to the vessel which bears it a
right to participate in the privileges secured by commercial treaties with
foreign powers, the public flag of a nation communicates the full
character of sovereignty, and is respected accordingly. The commercial
flag thus carries with it _nationality_, the public flag _the national
sovereignty_.
It is as much out of the power of any particular state to disturb this
distinction, and to attach to its mercantile flag, beyond the jurisdiction
of its own territory, different considerations from those which the
practice of nations has sanctioned, as to increase or diminish the list of
offences against the law of nations. No individual nation can say, "That
is our mercantile flag: such and such powers shall attach to it, because
it is our pleasure that it should be so:" on the contrary, it is the
practice of nations which defines those powers, and to that practice we
must have recourse, if we would ascertain them.
In illustration of the above views, the following extract from Dr.
Channing's eloquent and able pamphlet on "the Duty of the Free States,"
will not seem out of place. It was suggested by the well-known case of the
Creole:--"It seems to be supposed by some that there is a peculiar
sacredness in a vessel, which exempts it from all control in the ports of
other nations. A vessel is sometimes said to be 'an extension' of the
territory to which it belongs. The nation, we are told, is present in the
vessel; and its honour and rights are involved in the treatment which its
flag receives abroad. These ideas are, in the main, true in regard to
ships on the high seas. The sea is the exclusive property of no nation. It
is subject to none. It is the common and equal property of all. No state
has jurisdiction over it. No state can write its laws upon that restless
surface. A ship at sea carries with her, and represents, the rights of her
country, rights equal to those which any other enjoys. The slightest
application of the laws of another nation to her is to be resisted. She is
subjected to no law but that of her own country, and to the law of
nations, which presses equally on all states. She may thus be called, with
no violence to language, an extension of the territory to which she
belongs. But suppose her to quit the open sea, and enter a port, what a
change is produced in her condition! At sea she sustained the same
relations to all nations--those of an equal. Now she sustains a new and
peculiar relation to the nation which she has entered. She passes at once
under its jurisdiction. She is subject to its laws. She is entered by its
officers. If a criminal flies to her for shelter, he may be pursued and
apprehended. If her own men violate the laws of the land, they may be
seized and punished. _The nation is not present in her._ She has left the
open highway of the ocean, where all nations are equals, and entered a
port where one nation alone is clothed with authority. What matters it
that a vessel in the harbour of Nassau is owned in America? This does not
change her locality. She has contracted new duties and obligations by
being placed under a new jurisdiction. Her relations differ essentially
from those which she sustained at home or on the open sea. These remarks
apply, of course, _to merchant vessels_ alone. _A ship of war is an
'extension of the territory'_ to which she belongs, not only when she is
on the ocean, but in a foreign port. In this respect she resembles an army
marching by consent through a neutral country. Neither ship of war nor
army falls under the jurisdiction of foreign states. _Merchant vessels
resemble individuals._ Both become subject to the laws of the land which
they enter."
The taking possession of a vacant country for the purpose of settlement is
one of the highest acts of sovereign power, for a nation thereby acquires
not merely "the _domain_, by virtue of which it has the exclusive use of
the country for the supply of its necessities, and may dispose of it as it
thinks proper, but also the _empire_, or the right of sovereign command,
by which it directs and regulates at its pleasure every thing that passes
in the country," (Vattel, i., Sec. 204.) It is hardly necessary to add, that
a commission from the sovereign alone will authorize the act of taking
possession, so as to secure respect for it, _as a public act_, from other
nations. Thus we find that, in the letter from Mr. Gallatin to Mr. Astor,
elsewhere quoted, this principle was fully appreciated by Mr. Astor, when
he applied, in 1816, for a commission from the government of the United
States. "You mentioned to me that you were disposed once more to renew the
attempt, and to re-establish Astoria, provided you had the _protection of
the American flag_: for which purpose a _lieutenant's command_ would be
sufficient to you. You requested me to mention this to the President,
which I did. Mr. Madison said, he would consider the subject, and although
he did not commit himself, I thought that he received the proposal
favourably."
It remains to be considered whether the practice of nations has attached
different considerations to the flag in respect to _discoveries_.
_Discoveries_, however, as forming the ground-work of territorial title,
are in themselves _technical_. They are _inchoate acts of sovereignty_.
"Even in newly-discovered countries," said Lord Stowel, in the case of the
Fama, already cited, "where _a title is meant to be established_, for the
first time, some act of possession is usually done and proclaimed as a
notification of the fact." It is not, therefore, the mere sight of land
which constitutes a discovery, in the sense in which the practice of
nations respects it, as the basis of territorial title; there must be some
formal act of taking possession, which, as being an act of sovereign
power, can only be performed through a commission from the sovereign. Thus
Vattel, in the passage so frequently quoted, says, "The practice of
nations has usually respected such a discovery, when made by navigators
who have been furnished with a _commission from their sovereign_, and
meeting with islands or other lands in a desert state, have taken
possession of them in the name of the nation."
The conditional title by discovery is entirely the creature of the comity
of nations; it has no foundation in the law of nature, according to which,
if the discoverer has not occupied the territory, it would be presumed to
remain vacant, and open to the next comer. For such purposes, however, the
citizen or subject is not regarded as the instrument of his sovereign,
unless he bears his commission, when his acts are respected as public
acts, and are operative as between nation and nation.
It would thus appear that the first entering of the mouth of the Columbia
River by Gray, being the act of a private citizen, sailing in a private
ship for the purposes of trade, under the mercantile flag of his country,
was not in the received sense of the word _a discovery_, which, according
to the practice of nations, could lay the foundation of a title to
territorial sovereignty. It does not satisfy the required conditions upon
which alone the comity of nations would respect it. When therefore Mr.
Buchanan says, "Besides, beyond all doubt this discovery was made by Gray,
and to what nation could the benefit belong, unless it be to the United
States," he assumes that the comity of nations will attach benefit to such
a discovery, contrary to the practice of nations. It is thus unnecessary
to decide to what nation the benefit will belong, in a case in which no
benefit can be held to have resulted. On the other hand, it is admitted by
both of the American Secretaries of State, that the _discovery_ of the
mouth of the Columbia, in the popular sense of the word, was made by the
Spanish navigator Heceta, some years before Gray visited the coast. It
consequently follows that Gray achieved the first exploration, and not the
discovery of the mouth of the river, even in the popular sense of the
term.
In respect to the prior exploration of the Columbia River from its
head-waters, by Lewis and Clarke, in 1805-6, Mr. Calhoun, having conducted
the expedition, which had been despatched under the auspices of the
Government of the United States in the spring of 1804, as far as the
head-waters of the Missouri, states that "in the summer of 1805, they
reached the head-waters of the Columbia River. After crossing many of the
streams falling into it, they reached the Kooskooskee, in lat. 43 deg. 34',
descended that to the principal _northern_ branch, which they called
Lewis's; followed that to its junction with the great _northern branch_,
which they called Clarke; and thence descended to the mouth of the river,
where they landed, and _encamped on the north side, on Cape
Disappointment, and wintered_." Mr. Buchanan, in referring to this part of
Mr. Calhoun's argument, which he did not consider it necessary to repeat,
observed that he had shown, "that Messrs. Lewis and Clarke, under a
commission from their Government, first explored the waters of this river
almost _from its head-springs to the Pacific, passing the winter_ of 1805
and 1806 _on its northern shore_, near the ocean." These statements
however do not correspond with the facts themselves which they profess to
represent.
Mr. Rush, in the negotiations of 1824, had set up for the United States an
exclusive claim to the whole territory between 42 deg. and 51 deg. north, on the
ground that "it had been ascertained that the Columbia River extended by
the River Multnomah to as low as 42 deg., and by Clarke's River to a point as
high up as 51 deg., if not beyond that point." The obscurity in which the
geographical relations of the Oregon territory were at that time involved,
might, to a certain extent, excuse the mis-statement of Mr. Rush on this
occasion, for, as already observed, it has been subsequently ascertained
that the source of the Multnomah is in about 43 deg. 45', and that of Clarke's
River, in 45 deg. 30'; but Mr. Calhoun's statement involves an historical as
well as a geographical inaccuracy, which, under the circumstances, seems
to have been intentionally put forward, since it is repeated by Mr.
Buchanan. It is presumed that in the copy of the correspondence which has
been circulated in the public journals, and which has been published in a
separate form by Messrs. Wiley and Putnam of Waterlooplace, there is a
misprint in Mr. Calhoun's describing Lewis' River as the principal
_northern_ branch, more particularly as Clarke's River is immediately
after spoken of as the great _northern_ branch. Lewis' River must
evidently have been intended to be described as the principal _southern_
branch, being the river on which the Shoshonee or Snake Indians fish, and
which the travellers reached on descending the Kooskooskee. This
inaccuracy may be passed over as an error of the press, but in respect to
the next assertion of Mr. Calhoun, that Lewis and Clarke followed this
river to its junction with the _great northern branch, which they called
Clarke's River_, it is not borne out by the account which Lewis and Clarke
themselves give. On Friday, Sept. 6, Captain Clarke and his party reached
the first river on the western side of the Rocky Mountains, to which they
gave _the name of Clarke's River_, (Travels, ch. xvii.,) running from
south to north, and which, from the account of the natives, they had
reason to suppose, after going as far northward as the head-waters of the
Medicine River, (a tributary of the Missouri,) turned to the westward and
joined the Tacoutche-Tesse River. It must not be forgotten that the
Tacoutche-Tesse, discovered by Alexander Mackenzie in 1793, was supposed
to be the northernmost branch of the Columbia down to so late a period as
1812. Thus Alexander von Humboldt, in his New Spain, (l. i., c. 2,)
writes:--"Sous les 54 deg. 37' de latitude boreale, dans le parallele de l'ile
de la Reine Charlotte, les sources _de la riviere de la Paix_ (Peace
River) ou d'Ounigigah, se rapprochent de sept lieues des sources du
Tacoutche-Tesse, que l'on suppose etre identique avec la riviere de
Colombia. La premiere de ces rivieres va a la mer du Nord, apres avoir
mele ses eaux a celles du lac de l'Esclave et a celles du fleuve
Mackenzie. La seconde riviere, celle de Colombia, se jette dans l'Ocean
Pacifique pres du Cap Disappointment, au sud de Nootka-Sound, d'apres le
celebre voyageur Vancouver, sous les 46 deg. 19' de latitude."
Mr. Greenhow (p. 285) says, "Three days afterwards they entered the
principal southern branch of the Columbia, to which they gave the name of
Lewis: and in seven days more they reached the point of the confluence
with _the larger northern branch, called by them the Clarke_." Such,
however, is not the account of the travellers, who state that, having
followed the course of the Lewis River, they reached on the 16th of
October its junction with the _Columbia River_, (chap. xviii.,) the course
of which was "from the northwest," as Captain Clarke ascertained by
ascending it some little distance. They nowhere, throughout the account of
their travels, call this main river by any other name than the Columbia:
they nowhere speak of it by the name of Clarke's River; it is a reflection
on their memory to represent them as supposing that this great northern
branch was the river to which they gave the name of Clarke, for they fully
believed, when they reached the main stream, that they had reached the
Tacoutche-Tesse of Mackenzie, and at the same time the Columbia of Gray
and Vancouver, of which they considered Clarke's River to be merely a
tributary. The names of Lewis and Clarke are totally unconnected with the
great northern branch of the Columbia River, which was discovered and
first explored from its sources in about 52 deg. N. L., by Mr. Thomson, the
surveyor or astronomer of the North-west Company, in 1811. This is an
important fact, inasmuch as the exclusive claim of the United States was
advanced in 1824, to the territory as far north as 51 deg., expressly on the
ground that Clarke's River extended as far north as that parallel, or even
beyond that point, which is not the case. This northern branch, down
which Mr. Thomson first penetrated, is entitled to be considered as the
main branch of the Columbia, on the well-known principle that the sources
most distant from the sea are regarded as the true sources of a river,
according to which doctrine the name of Columbia has been in practice
retained for this northern branch, whilst distinctive names have been
given to all the southern tributaries.
Mr. Calhoun continues to say, "and thence they (Lewis and Clarke)
descended to the mouth of the river, where they landed, and encamped _on
the north side, on Cape Disappointment, and wintered_." The meaning of
this passage might be doubtful, unless Mr. Buchanan had cleared it up by
his expression of "passing the winter of 1805 and 1806 on _its northern
shore_, near the ocean." When it is remembered that it is the possession
of the _north bank_ of the river which is contested by the two parties to
the negotiation; and that the incidents of this expedition are formally
alleged, on the side of the United States, as forming part of the
ground-work of their exclusive title, and that the British negotiators
have objected throughout to the alleged completeness of the title of the
United States, on the express ground that it is at best an aggregate of
imperfect titles, and that the distinction between a perfect and imperfect
title is not one of _degree_, but of _kind_, it may not be unimportant to
remark, that Lewis and Clarke passed the winter of 1805-6 on the _southern
shore_ of the Columbia, in an encampment on a point of high land on the
banks of the river Netul. It is perfectly true that, having proceeded down
the Columbia as far as the roughness of the waves would allow them, they
landed on the north side on the 16th of November, and encamped on the
shore near a village of the Chinnook Indians, just above high-water mark,
where Captain Clarke remained for nine days, until Captain Lewis had
succeeded in selecting a favourable spot for their winter's encampment;
but the locality where they _encamped_ and _wintered, was on the south
side of the Columbia_, amongst the Clatsop Indians, and from this very
circumstance they gave to it the name of _Fort Clatsop_, which is so
marked down in the map prefixed to the travels of Lewis and Clarke, with
the further designation of "The wintering post of Captains Lewis and
Clarke in 1805 and 1806." Had not Mr. Calhoun specified the locality of
this winter's encampment as an element of the _cumulative title_ of the
United States, and had not Mr. Buchanan repeated the statement of his
predecessor more explicitly, it would not have been thought necessary to
discuss the circumstances so fully; but as one object of this inquiry is
to clear up the facts of the case, which, from the nature of the subject,
are obscure, if this error of statement had not been pointed out, it might
have tended to increase the existing intricacy of the question, more
particularly when it has an official character impressed upon it. It can
hardly be supposed to be an error of the press, since Cape Disappointment,
which is on the north bank, is referred to by Mr. Calhoun as adjoining the
spot where they "encamped and wintered."
The result of this inquiry cannot be better summed up than in the words of
Mr. Pakenham's counter-statement:--"With respect to the expedition of
Lewis and Clarke, it must, on a close examination of the route pursued by
them, be confessed, that neither on their outward journey to the Pacific,
nor on their homeward journey to the United States, did they touch upon
the head-waters of the principal branch of the Columbia River, which lie
far to the north of the parts of the country traversed and explored by
them.
"Thomson, of the British North-west Company, was the first civilised
person who navigated the northern, in reality the main branch of the
Columbia River, or traversed any part of the country drained by it.
"It was by a tributary of the Columbia that Lewis and Clarke made their
way to the main stream of that river, which they reached at a point
distant, it is believed, not more than 200 miles from the point to which
the river had been previously explored by Broughton.
"These facts, the undersigned conceives, will be found sufficient to
reduce the value of Lewis and Clarke's exploration on the Columbia to
limits, which would by no means justify a claim to the whole valley
drained by that river and its branches."
Mr. Calhoun next proceeds to state the grounds on which, as alleged,
priority of settlement was no less certain on the side of the United
States:--"Establishments were formed by American citizens on the Columbia
as early as 1809 and 1810. In the latter year a company was formed at New
York, at the head of which was John Jacob Astor, a wealthy merchant of
that city, the object of which was to form a regular chain of
establishments on the Columbia River, and the contiguous coasts of the
Pacific, _for commercial purposes_. Early in the spring of 1811, they
made their first establishment on the south side of the river, a few miles
above Point George, where they were visited in July following by Mr.
Thomson, a surveyor and astronomer of the North-west Company, and his
party. They had been sent out by that company to forestall the American
company in occupying the mouth of the river, but found themselves defeated
in their object. The American company formed two other connected
establishments higher up the river: one at the confluence of the Okanegan
with the north branch of the Columbia, about 600 miles above its mouth,
and the other on the Spokan, a stream falling into the north branch, some
fifty miles above."
Mr. Calhoun, in making the above general allusion to establishments formed
in 1809 and 1810, may be supposed to refer to a trading post founded by
Mr. Henry, one of the agents of the Missouri Fur Company, on a branch of
the Lewis River, the great southern arm of the Columbia. This post,
however, was shortly abandoned in consequence of the hostility of the
natives, and the difficulty of obtaining supplies, (Greenhow, p. 292.) It
would, however, be rather an overstrained statement to describe this
hunting station as an establishment formed on the Columbia, considering
its very great distance from the junction of the Lewis River with the
Columbia. Mr. Calhoun, however, may be alluding at the same time to the
undertaking of Captain Smith, in the Albatross, in 1810, who is said by
Mr. Greenhow to have attempted to found a trading post at Oak Point, on
the south side of the Columbia, about forty miles from its mouth, and to
have almost immediately abandoned the scheme. Such an attempt, however,
can hardly be entitled to the character of a settlement. Beyond these two
instances, it is believed that there is no occasion on record of the
presence of citizens of the United States on the west side of the Rocky
Mountains, during the years of 1809-10, which could give rise to the
supposition of an establishment having been formed by them.
In respect, however, to Mr. Astor's Adventure, the Pacific Fur Company was
a mere mercantile firm, the formation of which originated with Mr. Astor,
a German by birth, and ultimately a naturalized citizen of the United
States. The original company was formed in 1810, and, according to Mr.
Washington Irving, consisted of Mr. Astor himself, three Scotchmen, who
were British subjects, and one native citizen of the United States. Three
more Scotchmen, and two more citizens of the United States were
subsequently admitted, so that the majority of the company were British
subjects, and they had received an express assurance from Mr. Jackson, the
British Minister at Washington, that "in case of a war between the two
nations, they would be respected _as British subjects and merchants_,"
[Greenhow, p. 295.] Mr. Astor stipulated to retain half the shares for
himself, and in return to bear all the losses for the first five years,
during which period the parties had full power to abandon and dissolve the
association. A detachment of the partners arrived at the Columbia River in
1811, and formed a trading establishment on the southern bank of the
river, on Point George, not far from the mouth, which they named Astoria.
Mr. Washington Irving, who had his information from Mr. Astor himself,
terms their establishment "a trading house," [Chap. ix.] Not long after
their arrival they received information from the Indians, that the
North-west Company had erected a trading house on the Spokan River, which
falls into the north branch of the Columbia, and they were preparing to
dispatch a rival detachment to act as a counter-check to this
establishment, when Mr. David Thomson, with a party under the protection
of the British flag, having descended the Columbia from its northernmost
source, arrived at Astoria. On his return Mr. Stuart, one of the partners
of the Pacific Fur Company, accompanied Mr. Thomson's party a considerable
distance up the Columbia River, and established himself for the winter at
the junction of the Okanegan with the Columbia, at about 140 miles from
the Spokan River; here Mr. Stuart, according to Mr. Washington Irving,
considered himself near enough to keep the rival establishment in check.
It would thus appear that the earliest settlement on the Spokan River was
made by the North-west Company, and from Mr. Washington Irving's account,
seems almost to have preceded the foundation of Astoria; for whilst the
Astorians were occupied with their building, they heard from the Indians
that white men "were actually building houses at the Second Rapids." If,
however, it was not antecedent, it was at least contemporaneous.
It can hardly be contended that the settlement at Astoria had a definite
national character, much less that it could impart the national
sovereignty of the United States, to the territory, wherein it was
established. The Astorians might perhaps maintain their claim to the
domain (dominium utile,) but that they should set up a title to the
sovereignty (dominium eminens,) or be held to convey a title to any state
which should choose to assert it through them, is not conformable to the
practice of nations. But the plenipotentiaries of the United States
contend that they have an exclusive title to the entire valley of the
Columbia, by virtue of this settlement. Spain, however, did not admit this
title in the negotiations preceding the Florida Treaty, nor did the United
States venture to set it up. When Don Luis d'Onis, in resuming the
negotiations, proposed, in his letter of January 16, 1819, (British and
Foreign State Papers, 1819-20, p. 565,) to concede, on the part of his
Catholic Majesty, as the boundary between the two states, "a line from the
source of the Missouri, westward, to the Columbia River, and along the
middle thereof to the Pacific Ocean," and trusted it would be accepted, as
presenting "the means of realizing the President's great plan of extending
a navigation from the Pacific to the remotest points of the northern seas,
and of the ocean," no claim was advanced to the valley of the Columbia;
but Mr. Adams briefly stated, in reply, 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." Again, when the Spanish commissioner,
in his letter of February 1, 1819, stated that, "considering the motive
for declining 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," and proposed
to draw the boundary along the River S. Clemente, or Multnomah, to the
sea; and delivered a project of a treaty, in which it was stipulated that
his Catholic Majesty should cede all the country belonging to him eastward
of the boundary line to the United States; no original title to the entire
valley of the Columbia, no claim to the settlement of Astoria, as a
national settlement, was advanced by the United States: yet Astoria was on
the western side of the Multnomah or Willamette River, as it is now
called, and was assumed in both the above proposals to be beyond the
limits of "the dominions of the Republic."
Astoria passed into the hands of the North-west Company by peaceable
transfer. It was sold by the partners resident in the establishment, after
they had dissolved the association, which, by the terms of the contract,
the parties had power to do. When Captain Black, in his Britannic
Majesty's sloop-of-war the Racoon, arrived there in 1813, he did not
capture Astoria, for it was not the property of an enemy, but he took
possession of it in the name of his Britannic Majesty, and hoisted the
British ensign; thereby formally asserting the sovereignty of Great
Britain over the property of British subjects. In 1818, the government of
the United States was formally placed in possession of Astoria; and this
was the first occasion on which an act of sovereignty was exercised by
that Power. Mr. Calhoun states that this act "placed our possession where
it was before it passed into the hands of British subjects." On the
contrary, it placed Astoria in the hands of the government of the United
States, in which hands it had never been before: for, antecedently to the
transfer to the North-west Company by purchase, it was in the hands of an
association, the majority of which were British subjects, who could not,
according to any received principle of international law, be held to have
represented the sovereignty of the United States.
It was admitted by Lord Castlereagh, in the discussions with Mr. Rush
antecedent to the restoration of Astoria, that the United States were
entitled to be reinstated there, and "to be the party in possession
_whilst treating of the title_." At that time the United States had
confined their claims to the restitution of a post, which, as they
asserted, "had been established by them on the Columbia River, and had
been taken during the war, and consequently came within the provisions of
the first article of the Treaty of Ghent." Mr. Bagot, in his reply to Mr.
Adams, of 26th November, 1817, (British and Foreign State Papers, 1821-22,
p. 461,) stated that, "from the reports made to him, it appeared that the
post 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." The whole discussion was thus evidently limited
to the settlement at Astoria; and Lord Castlereagh admitted, on the
statement of the United States, that they had a prima facie claim to be
reinstated in the post, in conformity to the provisions of the treaty, and
_to be the party in possession whilst treating of the title_.
Mr. Calhoun, in the further course of his argument, contends that, after
this admission on the part of Lord Castlereagh, the Convention of 1818
"preserved and perpetuated _all our claims to the territory_, including
the acknowledged right to be considered _the party in possession_;" and
Mr. Buchanan, in still more explicit language, maintains the same
position. "He claims, and he thinks he has shown, a clear title, on the
part of the United States, _to the whole region drained by the Columbia_,
with the right of being _reinstated, and considered the party in
possession whilst treating of the title_; in which character he must
insist on their being considered, in conformity with _positive treaty
stipulations_. He cannot, therefore, consent that they shall be regarded,
during the negotiations, merely as _occupants in common_ with Great
Britain. Nor can he, while thus regarding their rights, present a
counter-proposal, based on the supposition of joint occupancy merely,
until the question of title to the territory is fully discussed." This
argument is essentially unsound throughout. The title of the United States
to possess the settlement, in other words, _not to be excluded from the
territory_, is strangely confounded with the title _to exclude the British
from the entire territory_. These titles are assumed to be identical,
being most distinct. Great Britain does not require to be considered as an
_occupant in common of Astoria_. The United States were never admitted _by
positive treaty stipulations_ to be the party entitled to be considered
_in possession of the whole region of the Columbia_, which Mr. Buchanan
maintains to have been conceded by Lord Castlereagh. But Great Britain
does require to be considered as _an occupant in common of the region of
the Columbia_, and the United States is entitled to the _right of adverse
possession as far as the settlement at the mouth of the river_, on its
south bank is concerned. What, however, is the effect of such a right of
possession? Simply that, as far as the settlement of Astoria is concerned,
it is not necessary for the United States to prove its _right of
dominion_. Its _right of possession_ is a valid right, unless a right of
dominion can be established by some other Power. But Great Britain asserts
no right of dominion,--she does not claim to evict the United States from
its actual possession,--but, as she claims no exclusive title for herself,
so she recognises no exclusive title in any other Power. The principle of
a mutual right of occupancy of the territory was admitted, when it was
agreed that the United States should be placed in possession _sub modo_,
whilst treating of the title. The question, however, between the two
governments was not one of _law_, but of _fact_. Issue had been joined in
the previous letters between the Secretary of State and the Minister of
Great Britain, at Washington: whilst the former asserted Astoria had been
captured during the war, the latter maintained that it had passed into the
hands of the North-west Company by peaceable purchase.
The United States asserted that Astoria had become a British possession by
virtue of the _jus belli_, the operation of which was in this case
expressly suspended by the first article of the Treaty of Ghent: on this
plea they claimed that it should be restored to them. Great Britain, on
the other hand, maintained that it had passed into the hands of the
North-west Company by peaceable purchase: on this plea they contended that
the United States were not entitled to demand its restoration. When,
therefore, the United States acquiesced in the proposal of Lord
Castlereagh, they admitted the legal effect of the fact asserted by Great
Britain, if it could be substantiated. They thus admitted the common right
of Great Britain to form settlements, by agreeing to treat of the title on
the ground alleged by Great Britain, precisely as Great Britain admitted a
corresponding right in the United States, by agreeing to discuss the
alleged fact that Astoria had passed into the hands of the British _jure
belli_, by which it was implied that it had been antecedently a possession
of the United States. We thus find in the negotiations of 1818, which
terminated in the Convention of the 20th October, concluded fourteen days
after the actual restoration of Astoria, that Messrs. Gallatin and Rush
nowhere hint at an exclusive title in the United States. "We did not
assert," they say in their letter to Mr. Adams, of October 20, 1818, "that
the United States had a _perfect right_ to that country, but insisted that
their claim was at least good against Great Britain," (British and Foreign
State Papers, 1819-20, p. 169.) Yet, in the face of this solemn admission,
at the commencement of the earliest negotiations, and of the fact that the
title has been treated of on so many occasions, Mr. Buchanan now asserts
that "our own American title to the extent of the valley of the Columbia,
resting as it does on discovery, exploration, and possession--a possession
acknowledged by a most solemn act of the British government itself, is a
_sufficient assurance against all mankind_; whilst our superadded title
derived from Spain _extends our exclusive rights_ over the whole territory
in dispute against Great Britain."
Such is the outline of the grounds on which the United States set up an
exclusive title to the entire valley of the Columbia, that is, a title to
exclude Great Britain from making settlements there. Mr. Buchanan
observes, that this title is "older than the Florida Treaty of February
1819, under which the United States acquired all the right of Spain to the
north-west coast of America, and exists independently of its provisions.
Even supposing, then, that the British construction of the Nootka Sound
Convention was correct, it could not apply to this portion of the
territory in dispute. A convention between Great Britain and Spain,
originating from a dispute concerning a petty trading establishment at
Nootka Sound, could not abridge the rights of other nations. Both in
public and private law, an agreement between two parties can never bind a
third, without his consent, expressed or implied."
Mr. Buchanan thus appears disposed to renounce the derivative title of
Spain, upon which, as completing the defects in the original title of the
United States, considerable stress had been elsewhere laid, "supposing the
British construction of the Nootka Convention to be correct:" in other
words the commissioners of the United States claim to avail themselves of
the provisions of this convention, if they can be made to support their
title, but to repudiate them, if they should be found to invalidate it,
which of course is inadmissible. But when Mr. Buchanan says, "A convention
between Great Britain and Spain _could not abridge the rights of other
nations_," though the proposition be abstractedly true, yet on this
occasion it does not apply. First of all, because Great Britain, in
recognising the right of Spain to make settlements on the north-west coast
in places not yet occupied, did not either at the time of the convention,
or subsequently, recognise such a right as an exclusive right in respect
to other nations. Secondly, because Spain, in recognising the right of
Great Britain to make settlements in an analogous manner, did not thereby
declare other nations excluded from making settlements; in fact, there is
not a single word within "the four corners" of the treaty, which can be
held to abridge the rights of other nations. Thirdly, because the United
States, at the time when the convention was concluded, had no other right
than that of making settlements, which Great Britain has never once
maintained that the Nootka Convention abridged, nor does it at this moment
contend so.
If, on the other hand, the United States had an _exclusive title_ to the
valley of the Columbia before the Treaty of Florida, or in other words, as
asserted in 1824, to the entire territory between 51 deg. and 42 deg., and that
title existed independently of its provisions, it is difficult to
understand the object of the protracted negotiations between Don Luis de
Onis and Mr. Adams, which resulted in his Catholic Majesty first
withdrawing from the Rocky Mountains to the Columbia River, then from the
Columbia to the Multnomah or Willamette River, and finally ceding all his
rights, claims, and pretensions to the territory north of the parallel of
42 deg. Mr. Buchanan's position is untenable in the face of the negotiations
antecedent to the Florida Treaty.
The original title, however, of the United States, does not satisfy the
requirements of the law of nations, in the extent in which it is
maintained to be effective. Let it be kept in mind that Great Britain has
never claimed the exclusive privilege of settling on the north-west coast
of America, to the north of the parts occupied by Spain, but she maintains
her right not to be excluded from any places not already occupied. The
United States, on the other hand, are not satisfied with claiming a right
to make settlements, but they assert a right to exclude Great Britain from
making settlements, and this, too, by virtue of an act performed by a
private citizen, without any commission from the state, subsequent to the
time when the right of Great Britain to make settlements had been formally
recognised by Spain in a solemn treaty, and was thus _patent_ to the
civilised world.
This very act, however, Mr. Calhoun admits to be defective for the purpose
of establishing an exclusive title, when he says, "Time, indeed, so far
from impairing our claims, has greatly strengthened them since that
period, for since then the Treaty of Florida transferred to us all the
rights, claims, and pretensions of Spain to the whole territory, as has
been stated. In consequence of this, our claims to the portion drained by
the Columbia River--the point now the subject of consideration--have been
_much strengthened_ by giving us the _incontestable claim to the discovery
of the river by Heceta_ above stated."
It is thus admitted, that the first entering of the River Columbia by
Gray, was not a _discovery_, but an _exploration_. There can be _no second
discovery_ for the purpose of founding an exclusive title. Heceta's
discovery is incontestable for the _purpose of barring any subsequent
claim by discovery_, and the original title of the United States,
resolves itself into a title founded upon the first exploration of the
entrance of the Columbia from the sea, and on the first exploration of its
southern branches from the Rocky Mountains. Such a title, however, can
neither from the nature of things, nor the practice of nations, establish
a right to exclude all other nations from every part of the entire valley
of the Columbia. On the contrary, the assertion of such a right is
altogether at variance with _the comity of nations_, on which alone title
by discovery rests. For, if the United States maintain that the discovery
of the Columbia River, for the purpose of establishing a territorial
title, dates from the enterprise of Gray, they set aside the discovery of
Heceta, in opposition to the comity of nations; yet it is upon this very
comity of nations that they must rely to obtain respect for their own
asserted discovery.
But when Mr. Calhoun maintains that, by the Florida Treaty, the title of
the United States was much _strengthened_ by the acquisition of the
incontestable claim to the discovery of the river by Heceta, he admits
that the title of the United States was _an imperfect title_ before that
treaty; for a perfect title is incapable of being
strengthened,--_exclusiveness does not admit of degree_. That the title of
the United States to form settlements in the parts not occupied was
strengthened by the Florida Treaty, is perfectly true. Great Britain,
before that treaty, _might have_ refused to recognise any title in the
United States under the general law of nations; but after that treaty, she
would be precluded by the provisions of the Nootka Sound Convention, as
the United States would thence-forward represent Spain, and allege a
recognised right of making settlements under that convention; but, that
the original title of the United States, which was not an exclusive title
by the law of nations, could become an exclusive title against Great
Britain by the acquisition of the title of Spain, which was expressly not
exclusive under a treaty concluded with Great Britain, independently of
other considerations which were duly weighed at the conclusion of the
Nootka Convention, requires only to be stated in plain language to carry
with it its own refutation.
The effects of the Nootka Convention, or rather Convention of the
Escurial, have already been discussed in the two preceding chapters. Mr.
Buchanan, in his letter of July 12, 1845, says, "Its most important
article (the third) _does not even grant in affirmative terms the right_
to the contracting parties to trade with the Indians and to make
settlements. It merely engages in negative terms, that the subjects of the
contracting parties 'shall not be disturbed or molested' in the exercise
of _these treaty-privileges_." Surely there is a contradiction of ideas in
the above passages. How can the right to trade with the Indians and to
make settlements be termed a _treaty-privilege_ in the latter sentence,
when in the former sentence it is expressly denied to have been _granted_
by the treaty? Mr. Buchanan, however, in asserting that the third article
did not _grant in affirmative terms the right_ specified in it, adopts
precisely the same view that the British commissioners have throughout
maintained; namely, that the third article did not contain a _grant_, but
a mutual _acknowledgment_ of certain rights in the two contracting
parties, with respect to those parts of the north-western coast of America
not already occupied. Mr. Buchanan, however, in a subsequent letter says,
"The Nootka Convention is arbitrary and artificial in the highest degree,
and is anything rather than the mere acknowledgment of simple and
elementary principles consecrated by the law of nations. In all its
provisions it is expressly confined to Great Britain and Spain, and
acknowledges no right whatever in any third Power to interfere with the
north-west coast of America. Neither in its terms, nor in its essence,
does it contain any acknowledgment of _previously subsisting territorial
rights_ in Great Britain, or any other nation. It is strictly confined to
future engagements, and these are of a most peculiar character. Even under
the construction of its provisions maintained by Great Britain, her claim
does not extend to _plant colonies_, which she would have had a right to
do under the law of nations, had the country been unappropriated; but it
is limited to a mere right of joint occupancy, not in respect to any part,
but to the whole, the sovereignty remaining in abeyance. And to what kind
of occupancy? _Not separate and distinct colonies, but scattered
settlements_, intermingled with each other, over the whole surface of the
territory, for the _single purpose of trading_ with the Indians, to all of
which the subjects of each Power should have free access, the right of
exclusive dominion remaining suspended. Surely, it cannot be successfully
contended that such a treaty is 'an admission of certain principles of
international law,' so sacred and so perpetual as not to be annulled by
war. On the contrary, from the _character of its provisions_, it cannot be
supposed for a single moment that it was intended for any purpose but
that of a mere _temporary arrangement_ between Great Britain and Spain.
The _law of nations_ recognises no such principles, in regard to
unappropriated territory, as those embraced in this treaty, and the
British plenipotentiary must fail in the attempt to prove that it contains
'an admission of certain principles of international law' which will
survive the shock of war."
Almost all the topics in the above passage have been already discussed in
the two previous chapters, as they were very dextrously urged by the
commissioners of the United States in the course of the previous
negotiations; so that a detailed examination of them on this occasion will
not be requisite. The first article, however, does contain an
acknowledgment of _previously subsisting territorial rights_, for it was
agreed that "_the buildings and tracts of land_, of which the subjects of
his Britannic Majesty were _dispossessed_, about the month of April 1789,
by a Spanish officer, shall be _restored_ to the said British subjects."
This article of the treaty, when placed side by side with the declaration
on the part of his Catholic Majesty of an exclusive right of forming
establishments at the port of Nootka, and with the counter-declaration on
the part of his Britannic Majesty of his right to such establishments as
his subjects might have formed, or should be desirous of forming in
future, at the said bay of Nootka, cannot be held to contain an
acknowledgment on the part of Spain of a previously subsisting territorial
right in Great Britain. In respect to its provisions for the future, and
to the interpretation which the commissioners of the United States have
sought to affix to the word "settlement," namely, that mere trading posts
or factories were contemplated, it has been shown in the previous
chapters, that, from the language of the treaty itself, in which the word
"settlements" is, in three other places, employed to designate territorial
possessions, and from the general language of treaties, such as the Treaty
of Paris in 1763, as contrasted with the Treaty of London in 1815, such a
view is quite incapable of being satisfactorily established: on the
contrary, it is by implication refuted by the very stipulations in the
fifth article, for free access and unmolested trade with these very
settlements. Again, the character of the provisions of the convention is
alleged to evince the intention of its being a mere temporary arrangement.
Such, however, was not the opinion of Mr. Fox, in respect to the sixth
article, when he charged the British Minister with having renounced the
previous rights of Great Britain _to plant colonies_ in the unoccupied
parts of South America; nor of Mr. Stanley, in reference to the third
article, when he said, "The southern fisheries will now be prosecuted in
peace and security;" nor of the Duke of Montrose, when he said, "The great
question of the southern fishery is _finally_ established, on such grounds
as must prevent all future dispute;" nor of Mr. Pitt, when he said, that
it was evident that "no claim (of Spain's) had been conceded,--that our
right to the fisheries had been acknowledged,--and that satisfaction had
been obtained for the insult offered to the Crown," (Hansard's
Parliamentary History, vol. xxviii., p. 970;) or, as otherwise reported,
"the claims of Spain had been receded from, and every thing stated in the
royal message had been gained," (Gentleman's Magazine, vol. lxx., A. D.
1790, part ii., p. 1160.) Mr. Fox's chief cause of complaint against the
treaty was, that it was a treaty of concessions on the part of Great
Britain, and not of acquisitions: and when Mr. Grey, in taunting the
Minister, complained, as instanced by Mr. Buchanan, "that where we might
form a settlement on one hill, the Spaniards might erect a fort upon
another," he in fact complained, not that we had not maintained a right to
form territorial settlements, and to exercise acts of sovereignty in them,
but that we had not asserted this right so as to exclude the Spaniards
entirely from the country. Reference has been made to these debates in the
British Houses of Parliament, rather to illustrate than to prove the fact
of the treaty having been regarded in a very different light from a mere
temporary engagement, by those who contended that Great Britain had
conceded more advantages than she had acquired. Mr. Pitt, indeed, denied
Mr. Fox's positions, and in answer to them maintained, "that though what
this country had gained consisted not of new rights, it certainly did of
new advantages. We had before a right to the Southern Whale Fishery, and a
right to navigate and carry on fisheries in the Pacific Ocean, and to
trade on the coasts of any part of it north-west of America: but that
right not only had not been acknowledged, but disputed and resisted:
whereas, by the convention, it was _secured to us_--a circumstance, which,
though _no new right_, was a _new advantage_." That the condition of
intermixed settlements, in regard to unappropriated lands, is clearly
recognised by the law of nations, as consistent with the full and absolute
independence of two separate nations, has been already shown by reference
to acknowledged authorities on international law, so that Mr. Buchanan's
entire argument appears to have been advanced rather upon specious than
solid grounds.
There are several other arguments in the correspondence of the
Commissioners of the United States that might deserve attention, were it
not that the discussion would exceed the contemplated limits of this work,
which has probably already attained too large a bulk. It has, however,
been found impossible to compress the inquiry within narrower bounds,
without incurring the double risk, on the one hand, of appearing to those
who are imperfectly informed on the subject, not to have given sufficient
consideration to the arguments of the Commissioners of the United
States,--and, on the other hand, of causing to those who are well
acquainted with the facts, some dissatisfaction by too cursory an exposure
of the unsoundness of those arguments. Besides, the course adopted has
been thought to be well warranted by the importance of the question, and
to be at the same time more consistent with the respect due to the
distinguished negotiators.