Hernando de Soto discovers the Mississippi, in 1542.—British Discoveries in 1654 and 1670.—French Expeditions.—De la Salle, in 1682.—Settlement in the Bay of St. Bernard, in 1685.—D’Iberville, in 1698.—Charter of Louis XIV. to Crozat, in 1712.—The Illinois annexed, in 1717, in the Grant to Law’s Mississippi Company.—The Treaty of Paris, in 1763.—Secret Treaty between France and Spain.—Louisiana ceded to Spain, in 1769.—Retroceded to France, in 1800, by the secret Treaty of San Ildefonso.—Transferred by Purchase to the United States, in 1803.—Discussions with Spain as to the Boundaries of Louisiana.—Grants by Charter only valid against other Nations upon Principles recognised by the Law of Nations.—Western Boundaries of Louisiana.—Evidence of Charters against the Grantors.—Conflict of Titles between France and England on the Ohio, between France and Spain on the Missouri.—Title of Great Britain by Treaties.—Extent of New France westwardly.—Escarbot’s Histoire de la Nouvelle France.—Map of 1757.—Jefferys’ History of the French Dominions in America.—Questionable Authority of Maps.
Hernando de Soto discovers the Mississippi, in 1542.—British Discoveries in 1654 and 1670.—French Expeditions.—De la Salle, in 1682.—Settlement in the Bay of St. Bernard, in 1685.—D’Iberville, in 1698.—Charter of Louis XIV. to Crozat, in 1712.—The Illinois annexed, in 1717, in the Grant to Law’s Mississippi Company.—The Treaty of Paris, in 1763.—Secret Treaty between France and Spain.—Louisiana ceded to Spain, in 1769.—Retroceded to France, in 1800, by the secret Treaty of San Ildefonso.—Transferred by Purchase to the United States, in 1803.—Discussions with Spain as to the Boundaries of Louisiana.—Grants by Charter only valid against other Nations upon Principles recognised by the Law of Nations.—Western Boundaries of Louisiana.—Evidence of Charters against the Grantors.—Conflict of Titles between France and England on the Ohio, between France and Spain on the Missouri.—Title of Great Britain by Treaties.—Extent of New France westwardly.—Escarbot’s Histoire de la Nouvelle France.—Map of 1757.—Jefferys’ History of the French Dominions in America.—Questionable Authority of Maps.
The Spaniards are entitled to claim for their countryman Hernando de Soto and his followers the merit of having first discovered the River Mississippi. About the same time that Vasquez de Coronado was despatched to explore the district which is supposed to correspond to the modern province of Sonora, in search of the great city of Cibola and the rich country of Quivira, the Viceroy Mendoza granted a commission to Soto for the discovery of Florida, which at that time was the general name for the countries on the northern shores of the Gulf of Mexico. According to the Spanish accounts, Soto and his followers succeeded, in 1542, in marching across the continent from Apalache, to the great river (Mississippi,) and thence penetrated as far west as the Rio Negro. Soto himself, however, died at Guachoya, and his companions, having committed the body of their leader in a hollow tree to the river, descended the Mississippi in boats, and after a series of conflicts with the natives, succeeded in reaching the Mexican Gulf, under the guidance of Luis de Moscoso and Juan de Añasco. Thence they continued their voyage westwardalong the coast until they arrived at Panuco, which was the northernmost part of New Spain, being within a few miles of the sea, a little higher up the river than the modern Tampico. (Herrera, Decade iv., ch. vii. and x., British and Foreign State Papers, 1817-18, p. 427.)
The Spaniards, however, do not appear to have availed themselves of this discovery of the mouth of the Mississippi for the purpose of settlement. On the other hand, the northern branches of the river appear to have been first explored by subjects of other powers than Spain, in the latter portion of the seventeenth century. Mr. Greenhow (p. 277) has inserted an extract from Jefferys’ History of the French Dominions in America, published in 1754, to the effect that “the Mississippi, the chief of all the rivers of Louisiana, which it divides almost into two equal parts, was discovered by Colonel Wood, who spent almost ten years, or from 1654 to 1664, in searching its source, as also by Captain Bolt, in 1670.” No further particulars are given by Jefferys, but it may be observed that both the above persons were British subjects.
In the year 1678, the French Government determined upon an expedition to explore the western parts of New France, and to discover, if possible, a road to penetrate to the Spanish possessions in Mexico. In consequence, Louis XIV. issued letters patent to the Sieur de la Salle, to authorise him to execute this enterprise, which he commenced towards the end of the following year. It was not, however, till February 1682, that he reached the river Colbert or Mississippi, by following the course of the Illinois River. His voyage down the Mississippi was accomplished by the 7th of April following, and on the 9th, La Salle took formal possession, in the name of the French monarch, “of the country of Louisiana, from the mouth of the great river St. Louis, otherwise called Ohio, on the eastern side, and also above the River Colbert or Mississippi, and the rivers which discharge themselves into it, from its source in the country of the Kious or Nadiouessious, as far as its mouth at the sea, or Gulf of Mexico;” and “upon the assurance which they had received from all the natives through whose country they had passed, that they were the first Europeans who had descended or ascended the said river Colbert, they hereby protested against all those who may in future undertake to invade any or all of these countries, people, or lands above described, to the prejudice of the right of his Majesty, acquired by the consent of the nations herein named.”
The proces-verbal drawn up on this occasion, of which the above is an extract, which is preserved in the archives of the Department of the Marine at Paris, was first published by Mr. Jared Sparks of Boston, the well-known author of the Life of Washington, and may be found most readily in Mr. Falconer’s able treatise on the discovery of the Mississippi. La Salle, on his return to France, obtained authority to form a colony near the mouth of the Mississippi, but in his voyage outwards he miscalculated his course, and reached the coast far to the westward of that river. Here indeed, in 1685, he established a settlement in the Bay of St. Bernard, called by him the Bay of St. Louis, which is supposed by some to have been Matagorda Bay, by others to have been the Bay of Espiritu Santo. This colony met with great disasters; but the French Government did not abandon its object, and in 1698 we find that the illustrious Canadian d’Iberville entered the Mississippi, and established a settlement at about one hundred leagues from its mouth. Before 1710, many French settlements had been made on the banks of the great river, but it was not until 1712 that a royal charter was granted by the French King to Antoine Crozat, which is the earliest document relied upon to establish the limits of Louisiana, and which Mr. Greenhow has inserted in his work, (p. 277.)
“Nous avons par ces présentes, signés de notre main, établi, et établissons ledit Sieur Crozat, pour faire seul le commerce dans toutes les terres par nous possédées, et bornées par le Nouveau Mexique, et par celles des Anglais de la Caroline, tous les établissemens, forts, havres, rivières, et principalement le port et havre de l’isle Dauphine, appellée autrefois de Massacre, le fleuve St. Louis, autrefois appellée Mississippy, depuis le bord de la mer jusqu’aux Illinois, ensemble les rivières St. Philippe, autrefois appellée des Missourys, et St. Hierosme, autrefois appellée Ouabache, avec tous les pays, contrées, lacs dans les terres, et les rivières qui tombent directement ou indirectement dans cette partie du fleuve St. Louis. Voulons que les dites terres, contrées, fleuves, rivières et isles, soient et demeurent compris sous le nom du gouvernement de la Louisiane, qui sera dependant du gouvernement général de la Nouvelle France, auquel il demeurera subordonné; et voulons en outre quetoutes les terres que nous possédons, depuis les Illinois, soient réunis, en tant que besoin est,au gouvernement général de la Nouvelle France, et en fassent partie: nous reservant néanmoins d’augmenter, sinous le jugeons à-propos, l’étendue du gouvernement dudit pays de Louisiane.”
Louisiana, it will be thus seen, according to this authoritative document of the French crown, was the country watered by the Mississippi, and its tributary streams from the sea-shore to the Illinois: such was the limitation affixed to the province by the French themselves; and, by the same public instrument, all the rest of the French possessions were united under the government of New France. It is true that the Illinois was subsequently annexed to Louisiana by a royal decree in 1717, after Crozat had relinquished his charter, and the whole region was granted to Law’s Mississippi Company; but the Illinois were still spoken of as the Illinois, and the district was not merged in Louisiana, though it was annexed to that province, to give the company access to Canada, in which the monopoly of the beaver-trade had been granted to them. It has been already observed, that the limits of the Hudson’s Bay territories and French Canada were settled by the peace of Utrecht, in 1713: one great object of that treaty was to provide against the commercial disputes of the subjects of the two crowns, which had led to a series of conflicts on the shores of Hudson’s Bay; it was in furtherance of this object that the fur-trade of Canada was now diverted from the St. Lawrence to the Mississippi, by this grant of the monopoly of the beaver-trade to the Compagnie d’Occident, and the annexation of the Illinois country to Louisiana.
Upon the surrender of Canada to the British arms, considerable discussion arose as to the respective limits of the provinces of Canada and Louisiana. The British Government insisted, as already stated, p. 150, on a line which would take in the river Ouabache, as far as its junction with the Ohio; and from thence along the Ohio to the Mississippi, the country to the south of the Ohio being at this time either British possessions, as part of Virginia, or occupied by Indian tribes. In the course of these negotiations, the Marquis de Vaudreuil, who signed the surrender, published his own account of what passed between Sir J. Amherst and himself, of which he considered the English account to be incorrect. “On the officer showing me a map which he had in his hand, I told him the limits were not just, and verbally mentioned others, extending Louisiana on one side to the carrying-place of the Miamis,which is the height of the lands whose rivers run in the Ouabache; and on the other tothe head of the river of the Illinois.”[Annual Register, 1761, p. 268.] Even thus, then, all to the north of the Illinois was admitted to be Canada. However, the French Government, in its memorial of the 9th September, 1761, “agreed to cede Canada in the most ample manner, and to admit the line on which England rested her demand, as, without doubt, the most extensive bound which can be given to the cession.” In accordance with this we find that, by the seventh article of the Treaty of Paris, the French possessions were declared to be thenceforth limited by the mid-channel of the Mississippi, from its source to the River Iberville.
The Treaty of Paris, however, has not furnished the only occasion upon which intricate discussions have arisen respecting the limits of Louisiana. By a secret treaty with Spain, made in 1762, but not signed till 1764, France ceded to her all the country known under the name of Louisiana. This transfer, however, was not promulgated till 1765, two years after the Treaty of Paris had been signed by France, Spain, and Great Britain; nor did the Spaniards obtain possession of the country till 1769. From that time Spain retained it till 1800, when she retroceded it to France by the secret Treaty of San Ildefonso, in exchange for an augmentation of the territories of the Duke of Parma in Italy. France, having thus been reinstated in possession of her ancient province, found she had unexpectedly given alarm and umbrage to the United States of America, and, in order to detach them from their disposition to unite with Great Britain, ceded it in full to the United States, in 1803, for the sum of sixty thousand francs. This led to a protracted negotiation between the United States and Spain, as to the limits of Louisiana, on the side both of Florida and Mexico respectively; which, though commenced in 1805, was not concluded till 1818. The claims of the two states are discussed in full, in a correspondence which may be found in the British and Foreign State Papers for 1817-18, and 1819-20.
The United States, in the course of these discussions, insisted upon the limits marked out in the letters patent which Louis XIV. had granted to Crozat,on the authority of the discovery made, and of the possession taken, by Father Hennepin in 1680, and by La Salle in 1682. Thus the validity of the title conveyed by the letters patent was sought to be grounded by the United States upon principles recognised by the law of nations. Charters, by their own intrinsic force,can only bind those who are subject to the authority from which they emanate: against the subjects of other states they can only avail on the supposition that the title of the grantor is valid by the law of nations. Thus the charter given by Charles II. to the Hudson’s Bay Company, granted to them,by virtue of the discoveriesmade in those parts, all the lands, &c., within the entrance of the straits commonly called Hudson’s Straits, “whichare not now actually possessedby any of our subjects, orby the subjects of any other Christian Prince or State;” and thus we find in the negotiations antecedent to the Treaty of Utrecht, it was expressly urged in support of the British title to the territories of Hudson’s Bay, “that Mons. Frontenac, then Governor of Canada, did not complain of any pretended injury done to France by the said Company’s settling a trade and building of forts at the bottom of Hudson’s Bay, nor made pretensions to any right of France to that bay, till long after that time.” [Anderson’s History of Commerce,A. D.1670, vol. ii., p. 516.] In other words, the title which this charter created was good against other subjects of the British Crown, by virtue of the charter itself; but its validity against other nations rested on the principle that the country was discovered by British subjects, and, at the time of their settlement, was not occupied by the subjects of any other Christian prince or state; and in respect to any special claim on the part of France, the non-interference of the French governor was successfully urged against that Power as conclusive of her acquiescence.
That the province of Louisiana did not at any time extendfurther norththan the source of the Mississippi, either if we regard the evidence of public instruments in the form of charters and treaties, or of historical facts, is most assuredly beyond the reach of argument. What, however, were thewesternlimits of the province, has not been so authoritatively determined. Mr. Greenhow, (p. 283,) after examining this question, concludes thus:—“In the absence of more direct light on the subject from history, we are forced to regard the boundaries indicated by nature—namely, the highlands separating the waters of the Mississippi from those flowing into the Pacific or Californian gulf—as thetrue western boundariesof the Louisiana ceded by France to Spain in 1762, and retroceded to France in 1800, and transferred to the United States by France in 1803: but then it must also be admitted, for the same as well as for another and stronger reason, thatthe British possessions further north were bounded on the coast by the same chain of highlands; for the charter of the Hudson’s Bay Company, on which the right to those possessions was founded and maintained, expressly included only the countries traversed by the streams emptying themselves into Hudson’s Bay.”
Charters may certainly be appealed to as evidence against the parties which have granted them, that on their own admission they do not extend their claim beyond the limits of them, and Mr. Greenhow is perfectly justified in confining the limits of Rupert’s Land, for such seems to have been the name recognised in the charter, to the plantation in Hudson’s Bay, and the countries traversed by the streams emptying themselves into the Bay; but the right to those possessions, as against France, was not founded upon the charter, but generally upon recognised principles of international law, and especially upon the Treaty of Utrecht. So in respect to the northern limit of Louisiana, Crozat’s grant, or the grant to Law’s Mississippi Company, might be alleged against France, to show that its limits did not extend further north, on the right bank of the Mississippi, than the Illinois. On the other hand, the Treaty of Paris might be appealed to, in order to show against Great Britain, that it did extend on the right bank of the Mississippi as far north as the sources of that river. Again, in respect to the western boundary of Louisiana, Crozat’s grant might be cited against France, to show that the province of Louisiana did not extend further westward than the confines of New Mexico. What, however, was the boundary of New Mexico, does not seem to have been determined by any treaty between France and Spain. France seems, indeed, from the words of Crozat’s grant, to have considered herself exclusively entitled to the Missouri river on the right bank, and to the Ohio on the left. The claims, however, of Great Britain, clashed with her on the banks of the Ohio, as remarked by Mr. Calhoun in his letter to Mr. Packenham of Sept. 3, 1844. In an analogous manner the Spanish title conflicted with the French title on the banks of the Missouri; for we find that, in the negotiations antecedent to the Treaty of Washington, in 1819, the Spanish commissioner maintained, that after Santa Fé, the capital of New Mexico, was built, Spain considered all the territory lying to the east and north of New Mexico, so far as the Mississippi and Missouri, to be her property. [British and Foreign StatePapers, 1817-18, p. 438.] The United States, indeed, on succeeding to the French title, declined to admit that the Spanish frontier ever extended so far to the north-east as was alleged; on the other hand, the letter of President Jefferson, of August 1803, shows that they considered their own claims to be limited by “the high lands on the western side of the Mississippi, enclosing all its waters, [the Missouri of course.”]
By the Treaty of Utrecht, the British possessions to the north-west of Canada were acknowledged to extend to the head-waters of the rivers emptying themselves into the bay of Hudson: by the Treaty of Paris, they were united to the British possessions on the Atlantic by the cession of Canada and all her dependencies; and France contracted her dominions within the right bank of the Mississippi. That France did not retain any territory after this treaty to the north-west of the sources of the Mississippi, will be obvious, when it is kept in mind that the sources of the Mississippi are in 47° 35′, whilst the sources of the Red River, which flows through Lake Winnipeg, and ultimately finds its way by the Nelson River into the bay of Hudson, are in Lake Travers, in about 45° 40′.
Some writers are disposed to consider that the limits of New France extended westwardly across the entire continent to the Pacific Ocean, but no authoritative document has been cited to show that the French Crown ever claimed such an extent of unknown territory, or that its claim was ever admitted. Escarbot’s description, in 1617, of New France, which, however, is of no authority, embraces within its limits almost the entire continent of North America, as may be seen from the extract from his “Histoire de la Nouvelle France,” which M. Duflot de Mofras gives: “Ainsi nostre Nouvelle France a pour limites du côté d’ouest les terres jusqu’à la mer dite Pacifique en deça du tropique du Cancer; au midi, les côtes de la mer Atlantique du côté de Cube et de l’Isle Hespagnole; au levant, la mer du Nord qui baigne la Nouvelle France; et au septentrion, cette terre qui est dite inconnue, vers la mer glacée jusqu’au pole arctique.”
The same author cites a map of the year 1757, as confirmatory of this view, in which a great river is exhibited in 45°, on the north-west coast of America, the direction of which is exactly that of the Columbia; but Mr. Greenhow, in the new edition of his work, p. 159, states, that this map was drawn and presented by the French commissaries appointed under the Treaty of Aix-la-Chapelle in 1748, to expose the extravagantpretensions of the British in North America, and that it does not contain the wordCanada, orNouvelle France, or any other sign of French dominion, the whole division of the continent, between 48° and 31° north latitude, being represented by strong lines and express notes, as included in the limits of the British provinces; nor does it show any large river falling into the Pacific north of the peninsula of California, nor any river entering that ocean north of 36°. A map perhaps better authenticated than this may be referred to in the History of the French Dominions in America, by Jefferys, the geographer to the King of England, in 1760, which does not, indeed, extend New France to the Pacific: on the contrary, whilst it exhibits the River of the West flowing in a course not unlike that of the Columbia, it does not include the Pacific Ocean at all in its limits, but leaves the west coast of the continent in its real obscurity.
Maps, however, are but pictorial representations of supposed territorial limits, the evidence of which must be sought for elsewhere. There may be cases, it is true, where maps may be evidence; when, for instance, it has been specially provided that a particular map, such as Melish’s Map of North America, shall be the basis of a convention: but it is to be regretted that maps of unsurveyed districts should ever have been introduced into diplomatic discussions, where limits conformable to convenient physical outlines, such as headlands or water-courses, are really sought for, and are understood to be the subject of negotiation. The pictorial features of a country, which, in such cases, have been frequently assumed as the basis of the negotiation, have not unusually caused greater embarrassment to both the parties in the subsequent attempt to reconcile them with the natural features, than the original question in dispute, to which they were supposed to have furnished a solution. That the name of Nouvelle France should have been applied by French authors and in French maps to the country as far as the shores of the Pacific Ocean, was as much to be expected as that the name of California should have been extended by the Spaniards to the entire north-west coast of America, which we know to have been the fact, from the negotiations in the Nootka Sound controversy.
TREATY OF WASHINGTON.
The Treaty of San Ildefonso.—Ineffectual Negotiations between Spain and the United States, in 1805, respecting the Boundary of Louisiana.—Resumed in 1817.—M. Kerlet’s Memoir cited by Spain, Crozat’s Charter by the United States, as Evidence.—Spain proposes the Missouri as the mutual Boundary.—The United States propose to cross the Rocky Mountains, and draw the Line from the Snow Mountains along 41° to the Pacific.—Negotiations broken off.—Spain proposes the Columbia River as the Frontier.—Offers the Parallel of 41° to the Multnomah, and along that River to the Sea.—Error in Melish’s Map.—The United States propose the Parallel of 41° to the Pacific.—Spain proposes the Parallel of 42° to the Multnomah, and along that River to 43°, thence to the Pacific.—The 42° Parallel adopted.—Source of the Multnomah or Willamette River, in about 44°.—Wilkes’ exploring Expedition—Third Article of the Treaty.—The asserted Rights of Spain to the Californias.—Her Title by Discovery.—The United States decline to discuss them.—The asserted Rights of the United States to the Valley of the Mississippi.—Mr. Greenhow’s Remarks.—The Spanish Commissioner declines to negotiate.—Design of the President of the United States.—Question of Rights abandoned.—Object of the Spanish Concessions.—Santa Fé.—Ultimate Agreement.—Review of the Claims of the two Parties.—Principles of international Law advanced by the United States.—Possession of the Sea-coast entitles to Possession of the interior Country.—Vattel.—Inconsistency of the Diplomatists of the United States.—Treaty of Paris.—Natural Boundary of conterminous Settlements, the Mid-distance.—Vattel.—Wheaton.—Acquisition of Title from Natives barred by first Settlers against other European Powers.—Right of Pre-emption.
The Treaty of San Ildefonso.—Ineffectual Negotiations between Spain and the United States, in 1805, respecting the Boundary of Louisiana.—Resumed in 1817.—M. Kerlet’s Memoir cited by Spain, Crozat’s Charter by the United States, as Evidence.—Spain proposes the Missouri as the mutual Boundary.—The United States propose to cross the Rocky Mountains, and draw the Line from the Snow Mountains along 41° to the Pacific.—Negotiations broken off.—Spain proposes the Columbia River as the Frontier.—Offers the Parallel of 41° to the Multnomah, and along that River to the Sea.—Error in Melish’s Map.—The United States propose the Parallel of 41° to the Pacific.—Spain proposes the Parallel of 42° to the Multnomah, and along that River to 43°, thence to the Pacific.—The 42° Parallel adopted.—Source of the Multnomah or Willamette River, in about 44°.—Wilkes’ exploring Expedition—Third Article of the Treaty.—The asserted Rights of Spain to the Californias.—Her Title by Discovery.—The United States decline to discuss them.—The asserted Rights of the United States to the Valley of the Mississippi.—Mr. Greenhow’s Remarks.—The Spanish Commissioner declines to negotiate.—Design of the President of the United States.—Question of Rights abandoned.—Object of the Spanish Concessions.—Santa Fé.—Ultimate Agreement.—Review of the Claims of the two Parties.—Principles of international Law advanced by the United States.—Possession of the Sea-coast entitles to Possession of the interior Country.—Vattel.—Inconsistency of the Diplomatists of the United States.—Treaty of Paris.—Natural Boundary of conterminous Settlements, the Mid-distance.—Vattel.—Wheaton.—Acquisition of Title from Natives barred by first Settlers against other European Powers.—Right of Pre-emption.
In the same year in which the Convention of 1818 was concluded at London between the United States and Great Britain, negotiations were being carried on at Washington between Spain and the United States, with the view of determining the effects of the Treaty of 1803, whereby Louisiana had been ceded by France to the latter power. It had been stipulated in the treaty of San Ildefonso in 1800, that Spain should retrocede “the colony or province of Louisiana, with the same extent which it now has in the hands of Spain, and which it had when France possessed it, and such as it ought to be according to the treaties subsequently made between Spain and other powers.” (British and Foreign State Papers,1817-18, p. 267-9.) The Treaty of 1803 in its turn ceded Louisiana to the United States, “in the name of the French republic, for ever and in full sovereignty, with all its rights and appurtenances, as fully and in the same manner as they have been acquired by the French republic, in virtue of the above-mentioned treaty with his Catholic Majesty.” It thus became requisite to determine the limits of this new acquisition of the United States, both on the side of the Floridas, and on that of New Spain. An examination of the discussion regarding the eastern boundary towards the Floridas is unnecessary on the present occasion. The question respecting the western limit was, perhaps, the more difficult to settle, from the circumstance that Texas was claimed by Spain as a province of New Spain, whilst the United States insisted that it was a portion of Louisiana: whilst Spain contended that she had only ceded theSpanish provinceof Louisiana, the United States maintained that she had retroceded theFrench colony. Spain thereupon proposed a line which, “beginning at the Gulf of Mexico between the River Carecut or Cascasiu, and the Armenta or Marmentoa, should go to the north, passing between Adaes and Natchitoches, until it cuts the Red River,” on the ground that the Arroyo-Hondo, which is midway between Natchitoches and Adaes, had been, in fact, considered to be the boundary in 1763. The United States on the other hand, insisted on the Rio Bravo del Norte as the western frontier, on the ground that the settlement of La Salle in the Bay of St. Bernard (Matagorda) carried with it a right to the territory as far as the Rio Bravo. Beyond the Red River Spain proposed that the boundary should be determined by commissioners, after a survey of the territory, then but little known, and a reference to documents and dates, “which might furnish the necessary light to both governments upon limits which had never been fixed or determined with exactness.” (State Papers, 1817-18, p. 321.) Such was the proposal made by Don Pedro Cevallos on the part of Spain, on April 9th, 1805. Messrs. Pinckney and Moore, in reply, proposed a compromise in connection with the western frontier, that a line along the River Colorado, from its mouth to its source, and from thence to the northern limits of Louisiana, should be the boundary; but the Spanish government declined to accept their proposal, and the negotiations were not resumed till the year 1817.
Spain had, in the mean time, during the captivity of the Spanish monarch in France, been unexpectedly deprived ofthe greater part of West Florida, in 1810, by the United States, without any declaration of war, or stipulation of peace, which could seem to authorise it. On re-opening the negotiation in 1817, the Spanish Government, having waived all demands on this head, proposed to cede the two Floridas to the United States in exchange for the territory which lies between the River Mississippi and the well-known limit which now separates, and has separated Louisiana, when France possessed it, before the year 1764, and even before the death of King Charles II. of Spain, from the Spanish province of Texas: so that the Mississippi might be the only boundary of the dominions of his Catholic Majesty and of those of the United States. (State Papers, 1817-1818, p. 356.)
In the course of the subsequent negotiations, the Spanish commissioner, Don Luis de Onis, in a letter of the 12th of March 1818, refused to admit the authority of the grant of Louis XIV. to Crozat as evidence of the limits of Louisiana, and referred to the memoir drawn up by M. Kerlet, for many years governor of the province before it was ceded to Spain by the Treaty of 1763, containing a description of its proper extent and limits. This memoir had been delivered by the Duc de Choiseul, minister of France, to the Spanish ambassador at Paris, as a supplement to the Act of Cession of Louisiana. (State Papers, 1817-18, p. 437.) On the other hand, the Secretary of State, on the part of the United States, maintained that “the only boundaries ever acknowledged by France, before the cession to Spain in Nov. 3, 1762, were those marked out in the grant from Louis XIV. to Crozat.” She always claimed the territory which Spain called Texas, as being within the limits, and forming part of Louisiana, “which in that grant is declared to be bounded westward by New Mexico, eastward by Carolina, and extending inward to the Illinois, and to the sources of the Mississippi, and of its principal branches.” (State Papers, 1817-18, p. 470.)
These discussions were suspended for a short time, in consequence of difficulties between the two governments respecting the Seminole Indians in Florida; but on the 24th of October Don Luis d’Onis proposed, that “to avoid all causes of dispute in future, the limits of the respective possessions of both governments to the west of the Mississippi shall be designated by a line beginning on the Gulf of Mexico, between the rivers Marmentoa and Cascasiu, following the Arroyo-Hondo, between Adaes and Natchitoches, crossing the RioRoxo, or Red River, at 32° of latitude and 98° of longitude, from London, according to Melish’s map, and thence running directly north, crossing the Arkansas, the White, and the Osage Rivers, till it strikes the Missouri, and then following the middle of that river to its source, so that the territory on the right bank of the said river will belong to Spain, and that on the left bank to the United States. The navigation of the Mississippi and Marmentoa shall remain free to the subjects of both parties.” (State Papers, 1818-19, p. 276.)
No proposal had as yet been advanced by either party to carry the boundary line across the Rocky Mountains till October 31, 1818, when Mr. Adams offered, as the ultimatum of the United States, a “line from the mouth of the River Sabine, following its course to 32° N. L., thence due north to the Rio Roxo, or Red River, following the course of that river to its source, touching the chain of the Snow Mountains in latitude 37° 25′ north, thence to the summit, and following the chain of the same to 41°, thence following the same parallel to the South Sea.” The Spanish commissioner, in his reply, undertook to admit the River Sabine instead of the Marmentoa, on condition “that the line proposed by Mr. Adams should run due north from the point where it crosses the Rio Roxo till it strikes the Missouri, and thence along the middle of the latter to its source;” but in regard to the extension of the line beyond the Missouri,along the Spanish possessions to the Pacific, he declared himself to be totally unprepared by his instructions to discuss such a proposal. The negotiations were in consequence broken off. Subsequently, the Spanish commissioner, having received fresh instructions from his government in a letter of June 16, 1819, proposed to draw the western boundary line between the United States and the Spanish territories from the source of the Missouri to the Columbia River, and along the course of the latter to the Pacific, which Mr. Adams, on the part of the United States, rejected as inadmissible. Don Luis d’Onis thereupon, having expressly waived all questions as to the right of either power to the territory in dispute, and also as to the limits of Louisiana, proposed that the boundary line, as suggested by Mr. Adams, should follow the Sabine river to its source, thence by the 94th degree of longitude to the Red River of Natchitoches, and along the same to the 95th degree; and crossing it at that point, should run by a line due north to the Arkansas, andalong it to its source, thence by a line due west till it strikes the source of the River St. Clemente or Multnomah, in latitude 41°, and along that river to the Pacific Ocean: the whole agreeably to Melish’s map. This is another very remarkable instance of the danger of referring even to the best maps, when territorial limits are to be regulated by the physical features of a country. There must have been a monstrous error in Melish’s map, which the Spanish commissioner had before him, if such a line could have been drawn upon it from the source of the Arkansasdue westto the source of the Multnomah, the modern Willamette River. Mr. Adams, in reply, proposed a slightly modified line “to the source of the Arkansas in 41°, and thence due west to the Pacific along the parallel of 41° according to Melish’s map up to 1818; but if the source of the Arkansas should fall south or north of 41°, then the line should be drawn due north or south from its source to the 41st parallel, and thence due west to the sea.” This would have been an intelligible line. Don Luis d’Onis then communicated a project of a further modified line from the 100th parallel of longitude west of Greenwich along the middle of the Arkansas to the 42d parallel; “thence a line shall be drawn westward, by the same parallel of latitude, to the source of the River San Clemente, or Multnomah, following the course of that river to the 43° of latitude, and thence by a line due west to the Pacific Ocean.” Another counter project was proposed by Mr. Adams on the 13th of February, and ultimately it was agreed between the parties to admit the parallel of 42° from the source of the Arkansas westward to the Pacific Ocean, with the proviso that if the source of the Arkansas should be north or south of 42°, the line should be drawn from it south or north to the 42d parallel. It was fortunate that this proviso was adopted, for actual surveys have since determined the source of the Arkansas to be at the foot of the Sierra Verde, in about 46° 45′ north latitude. On the other hand, as an illustration of the lamentable want of information on the part of the Spanish commissioner in respect to the boundary line which he proposed to be drawn, first of all along the parallel of 41° due west to the source of the Multnomah, and secondly along the parallel of 42° due west to the same river, it may be observed, that the source of this river is ascertained to be very little further south than the 44th parallel of latitude, as may be seen in the excellentAmerican map attached to Commander Wilkes’ Exploring Expedition, though even so late as in Mitchell’s map for 1834 it is placed in about 42°.
The Treaty of Washington, or the Floridas, was thus at last concluded on the 22d February, 1819, and by the third article, after specifying the boundary line, as above described, between the two countries west of the Mississippi, it concludes thus: “The two high contracting parties agree to cede and renounce all their rights, claims, and pretensions to the territories described by the said line; that is to say, the United States hereby cede to his Catholic Majesty, and renounce for ever, all their rights, claims, and pretensions to the territories lying west and south of the above described line; and in like manner his Catholic Majesty cedes to the United States all his rights, claims, and pretensions to any territories east and north of the said line, and for himself, his heirs and successors, renounces all claim to the said territories for ever.” (Martens’ Nouveau Recueil des Traités, v., p. 333.)
It will be observed from the words of the above article, that the nature of the rights reciprocally ceded are in no manner specified. It thus becomes necessary to look to the antecedent negotiations to determine this question. In the first communication from the Chevalier d’Onis, on January 5, 1818, in respect to the western boundary of Louisiana, we find him assert that “the right and dominion of the Crown of Spain to the north-west coast of America, as high up as the Californias, is not less certain and indisputable (than her claim to West Florida,) the Spaniards having explored as far as the 47th degree in the expedition under Juan de Fuca in 1592, and in that of Admiral Fonte to the 55th degree in 1640.
“The dominion of Spain in these vast regions being thus established, and her rights of discovery, conquest, and possession, being never disputed, she could scarcely possess a property founded on more respectable principles, whether of the law of nations, of public law, or any others which serve as a basis to such acquisitions as all the independent kingdoms and states of the earth consist of.” (State Papers, 1817-18, p. 427.)
Mr. Adams, in his reply of January 16, 1818, stated that “the President of the United States considered it would be an unprofitable waste of time to enter again at large upon topics of controversy, which were at that time [1805] sothoroughly debated, and upon which he perceives nothing in your notes, which was not then substantially argued by Don Pedro Cevallos, and to which every reply essential to elucidate the rights and establish the pretensions on the part of the United States was then given.” Without, therefore, noticing even in the slightest manner that portion of the Spanish title now for the first time set out in respect of the Californias, and which had not in any manner been alluded to in the previous correspondence, he simply proposed, “the Colorado River from its mouth to its source, and from thence to the northern limits of Louisiana, to be the western boundary; or to leave that boundary unsettled for future arrangement.” It may be observed, that the paramount object of the United States at this moment, was to obtain the cession of the Spanish claims to territorieseastwardof the Mississippi. [State Papers, 1817-18, p. 450.] The western frontier was comparatively of less pressing importance.
Various communications having in the mean time been exchanged, Mr. Adams at last, in his letter of Oct. 31, 1818, proposed for the first time, on the part of the United States, an extension of the boundary to the Pacific Ocean, namely, a line drawn due west along the 41st parallel. He did not attempt, on this occasion, to contest the position which Spain had taken up in respect to territory west of the Rocky Mountains, but contented himself with again asserting, that the rights of the United States to the entire valley of the Mississippi and its confluents were established beyond the reach of controversy. Mr. Greenhow [p. 316] observes, “On these positive assertions of the Spanish minister, Mr. J. Q. Adams, the American plenipotentiary and Secretary of State, did not consider himself required to make any comment; and the origin, extent, and value of the claims of Spain to the north-western portion of America, remained unquestioned during the discussion.”
The Spanish commissioner seems to have regarded the silence of Mr. Adams as a tacit admission that his position was unassailable, and therefore was totally unprepared for the proposal of the United States, if we may judge from his reply:—“What you add respecting the extension of the same line beyond the Missouri, along the Spanish possessions to the Pacific Ocean, exceeds by its magnitude and its transcendency all former demands and pretensions stated by the United States. Confining, therefore, myself to thepower granted to me by my sovereign, I am unable to stipulate any thing on this point.” [State Papers, 1818-19, p. 284.]
Mr. Adams, in his reply of Nov. 30, 1818, [ibid. 291,] writes, “As you have now declared that you are not authorised to agree, either to the course of the Red River, [Rio Roxo,] for the boundary, nor to the 41st parallel of latitude, from the Snow Mountains to the Pacific Ocean, the President deems it useless to pursue any further the attempt at an adjustment of this object by the present negotiation.” Don Luis, in withdrawing for the present moment from the negotiation, in his letter of Dec. 12, 1818, [ibid., p. 502,] observes, “I even expressed my earnest desire to conclude the negotiation, so far as to admit the removal of the boundary line, from the Gulf of Mexico, on the river Sabine, as proposed by you; and I only added, that it should run more or less obliquely to the Missouri, thereby still keeping in view the consideration of conciliating the wish that your government might have, of retaining such other settlements as might have been formed on the bank of that river, and observing, nevertheless, that it was not to pass by New Mexico, orany other provinces or dominions of the crown of Spain.”
The Spanish commissioner, after obtaining fresh instructions to authorize him to extend the boundary line to the Pacific Ocean, stated in a letter of Jan. 16, 1819, to Mr. Adams, [State Papers, 1819-20, p. 565,] that “his Majesty will agree that the boundary line between the two states shall extend from the source of the Missouri, westward to the Columbia River, and along the middle thereof to the Pacific Ocean;” in the hope that this basis would be accepted by the President, “as it presents the means of realizing his great plan of extending a navigation from the Pacific to the remotest points of the northern states.”
This offer was not accepted, and Mr. Adams, in his reply of Jan. 29, 1819, simply stated, “that the proposal to draw the western boundary line between the United States and the Spanish territories on this continent, from the source of the Missouri to the Columbia River, cannot be admitted,” (ibid. p. 566;) and at the same time he renewed his proposal of the 31st of October last, as to the parallel of 41°.
Don Luis de Onis, as might be expected, did not accede to this, and in his next letter, of Feb. 1, 1819, writes, “I have proved to you in the most satisfactory manner, thatneither the Red River of Natchitoches, nor the Columbia, ever formed the boundary of Louisiana; but as you have intimated to me that it is useless to pursue the discussion any further, I acquiesce with you therein, and I agree that, keeping out of view the rights which either party may have to the territory in dispute, we should confine ourselves to the settlement of those points which may be for the mutual interest and convenience of both.
“Upon this view, therefore, of the subject, and considering that the motive for declining to admit my proposal of extending the boundary line from the Missouri to the Columbia, and along that river to the Pacific, appears to be the wish of the President to include, within the limits of the Union, all the branches and rivers emptying into the said River Columbia, I will adapt my proposals on this point, so as fully to satisfy the demand of the United States, without losing sight of the essential object, namely, that the boundary line shall, as far as possible, be natural and clearly defined, and leave no room for dispute to the inhabitants on either side.”
He therefore proposed, as the Red River rose within a few leagues of Santa Fé, the capital of New Mexico, to substitute the Arkansas for the Red River; so that the line along the Red River should not be drawn further westward than the 95th degree of longitude, and crossing it at that point, should run “due north to the Arkansas, and along it to its source; thence, by a line due west, till it strikes the source of the River St. Clemente, or Multnomah, in latitude 41°, and along that river to the Pacific Ocean. The whole agreeably to Melish’s map.”—(State Papers, 1819-20, p. 568.)
Mr. Adams on the other hand, on Feb. 6, 1819, repeated the proposal of the United States as to the line from the source of the Arkansas River being drawn along the parallel of 41° N. L. to the Pacific, with other modifications in the general detail of the boundary.
This proposal, however, was not accepted, and the Spanish commissioner in his turn, on Feb. 9, proposed a different line, to be drawn “along the middle of the Arkansas to the 42° of latitude; thence a line shall be drawn westward by the same parallel of latitude to the source of the River San Clemente or Multnomah, following the course of that river to the 43° of latitude, and thence by a line to the Pacific Ocean.” (Ibid. p. 570.)
Mr. Adams, in his answer of February 13, 1819, stillretained the parallel of 41° of latitude from the source of the Arkansas to the South Sea, according to Melish’s map. (Ibid. p. 575.)
The Chevalier de Onis, on the 16th of February 1819, ultimately agreed “to admit the 42° instead of the 43° of latitude from the Arkansas to the Pacific Ocean.” (Ibid. p. 580.)
These extracts from the documentary correspondence preliminary to the Treaty of 1819, will show the nature of the claims maintained by the two parties, and thus serve to explain the meaning of the third article of the treaty. Spain asserted her right and dominion over the northwest coast of America as high up as the Californias, as based upon the discoveries of Juan de Fuca in 1592, and Admiral Fonte in 1640. The United States madeno claimto territory west of the Rocky Mountains. On the other hand, the United States asserted her right over the coasts of the Mexican Gulf from the Mississippi to the Rio Bravo by virtue of Crozat’s grant, and of the settlement of La Salle in the Bay of St. Bernard, whilst Spain maintained that the expedition of Hernando de Soto and others entitled her by discovery to the entire coasts of the Mexican Gulf, and that the crown of Spain, before 1763, had extended her dominion eastward over the right side of the Mississippi from its mouth to the mouth of the Missouri, and northward over the right side of the latter river from its mouth to its source; in other words, that the dependencies of the Spanish province of New Mexico extended as far as the Missouri and the Mississippi, and the Spanish province of Texas as far as the Red River and Mississippi. The rights, claims, and pretensions, therefore, to any territories lying east and north of the parallel of 42°, which Spain, by the 3rd article of the Treaty of 1819, ceded to the United States, had respect to the Spanish province of Texas, the Spanish province of New Mexico, and the Californias; the rights, claims, and pretensions which the United States ceded to his Catholic Majesty to any territories west and south of this line, had reference to the coasts of the Gulf of Mexico as far the Rio Bravo, and the inland country; for no claim or pretension had been advanced by the United States to territory beyond the Rocky Mountains, and the object of the negotiation was expressly to determine the boundaries of Louisiana, which the United States insisted had been ceded to them in the full extent in which it had been possessed by France,according to the limits marked out by Louis XIV. in his grant to Crozat.
In the course of these negotiations, we find certain principles of international law laid down by the commissioners of the United States as applicable to the question of disputed boundaries. They seem to have been advanced after careful consideration, for Messrs. Pinckney and Monroe formally enunciated them on the 20th of April 1805, as “dictated by reason, and adopted in practice by European Powers in the discoveries and acquisitions which they have respectively made in the new world;” and Mr. Adams, on the 12th of March 1820, restated them again as principles “sanctioned alike by immutable justice, and the general practice of the European nations, which have formed settlements and held possessions in this hemisphere.” (British and Foreign State Papers, 1817-18, pp. 327, 467.)
Thefirstis, “That wheneverany European nation takes possession of any extent of sea-coast, that possession is understood as extending into the interior country, to the sources of the rivers emptyingwithin that coast, to all their branches, and the country they cover, and to give it a right in exclusion of all other nations to the same.”
“It is evident,” write Messrs. Pinckney and Monroe, (ibid., p. 327,) “that some rule or principle must govern the rights of European Powers in regard to each other in all such cases, and it is certain that none can be adopted, in those to which it applies, more reasonable or just than the present one. Many weighty considerations shew the propriety of it. Nature seems to have destined a range of territory so described for the same society, to have connected its several parts together by the ties of a common interest, and to have detached them from others. If this principle is departed from, it must be by attaching to such discovery and possession, a more enlarged or contracted scope of acquisition; but a slight attention to the subject will demonstrate the absurdity of either. The latter would be to restrict the rights of a European Power, who discovered and took possession of a new country, to the spot on which its troops or settlements rested, a doctrine which has been totally disclaimed by all the Powers who made discoveries and acquired possessions in America. The other extreme would be equally improper; that is, that the nation who made such discovery should, in all cases, be entitled to the whole of the territory so discovered. In thecase of an island, whose extent was seen, which might be soon sailed round, and preserved by a few forts, it may apply with justice; but in that of a continent it would be absolutely absurd. Accordingly, we find, that this opposite extreme has been equally disclaimed and disavowed by the doctrine and practice of European nations. The great continent of America, north and south, was never claimed or held by any one European nation, nor was either great section of it. Their pretensions have been always bounded by more moderate and rational principles. The one laid down has obtained general assent.
“This principle was completely established in the controversy which produced the war of 1755. Great Britain contended that she had a right,founded on the discovery and possession of such territory, to define its boundaries by given latitudes in grants to individuals, retaining the sovereignty to herself from sea to sea. This pretension on her part was opposed by France and Spain, and it was finally abandoned by Great Britain in the treaty of 1763, which established the Mississippi as the western boundary of her possessions.It was opposed by France and Spain on the principle here insisted on, which of course gives it the highest possible sanction in the present case.”
To a similar purport Vattel, b. i., § 266, writes: “When a nation takes possession of a country, with a view to settle there, it takes possession of every thing included in it, as lands, lakes, rivers, &c.” It is universally admitted, that when a nation takes possession of a country, she is considered to appropriate to herself all its natural appendages, such as lakes, rivers, &c., and it is perfectly intelligible, why the practice of European nations has sanctioned the exclusive title of the first settlers on any extent of sea-coast to the interior country within the limits of the coast which they have occupied, because their settlements bar the approach to the interior country, and other nations can have no right of way across the settlements of independent nations. In reference, however, to the extent of coast, which a nation may be presumed to have taken possession of by making a settlement in a vacant country, the well-known rule ofterræ dominium finitur, ubi finitur armorum vis, might on the first thought suggest itself; but it has not been hitherto held that there is any analogy between jurisdiction over territory, and jurisdiction over adjoining seas: on the contrary, it was ruled in theCircuit Court of New York, 1825, in the case of Jackson v. Porter, 1 Paine, 457, “that under the second article of the treaty with Great Britain, the precincts and jurisdiction of a fort are not to be considered three miles in every direction, by analogy to the jurisdiction of a country over that portion of the sea surrounding its coasts, but they must be made out by proof.” The comity of nations, however, has recognised in the case of settlements made in a vacant territory for the purpose of colonisation, a title in the settlers to such an extent of territory as it may fairly be presumed that they intend to cultivate (Vattel, b. i., § 81,) and the possession of which is essential either to the convenience or security of the settlement, without being inconvenient to other nations. The limitation of this extent seems rather to have been regulated by special conventions, than by any rule of uniform practice.
On the authority of this principle as above stated, Messrs. Pinckney and Monroe contended that “by the discovery and possession of the Mississippi in its whole length, andthe coast adjoining it, the United States are entitled to the whole country dependent on that river, the waters which empty into it, and their several branches,within the limits on that coast. The extent to which this would go it is not in our power to say; but the principle being clear, dependent on plain and simple facts, it would be easy to ascertain it.”
It will have been observed, that the opposition of France and Spain to the pretensions of Great Britain is adduced by Messrs. Pinckney and Monroe, as giving the highest sanction to this principle. A passage in Mr. Calhoun’s letter of Sept. 3, 1844, to Mr. Pakenham forms a striking contrast. Having alluded to the claims of France and Great Britain, first conflicting on the banks of the Ohio, he writes: “If the relative strength of these different claims may be tested by the result of that remarkable contest, that of continuity westward must be pronounced to be the stronger of the two. England has had at least the advantage of the result, and would seem to be foreclosed against contesting the principle—particularly as against us, who contributed so much to that result, and on whom that contest, and her example and her pretensions from the first settlement of our country, have contributed to impress it so deeply and indelibly.” In other respects Mr. Calhoun adopts the same view of the early European settlements in North America, that the respective nations “claimed for their settlements usually, specific limitsalong the coastsor bays on which they were formed, and generally a region ofcorresponding widthextending across the entire continent to the Pacific Ocean.”
That the hypothesis of Mr. Calhoun’s argument was meant to be affirmed, may be inferred from Mr. Gallatin having categorically asserted the same fact in 1826, as being notorious. It does not however appear from the protracted negotiations prior to the Treaty of Paris, that any conflicting principles of international law were advanced by the two parties, or any question of disputed title set at rest by the treaty. On the contrary, it was intimated in the course of the negotiations, by Great Britain, that she considered France to have the natives on the left bank of the Mississippi under her protection, when she proposed that the King of France should “consent to leave them under the protection of Great Britain.”
Thesecondrule is, “that whenever a European nation makes a discovery, and takes possession of any portion of that continent, and another afterwards does the sameat some distance from it, where the boundary between them is not determined by the principle above mentioned, the middle distance becomes such of course. The justice and propriety of this rule are too obvious to require illustration.”
The principle here stated seems very analogous to that which is recognised by all writers on international law, as regulating the navigation of rivers. Thus Vattel (i., § 266)—“When a nation takes possession of a country bounded by a river, she is considered as appropriating to herself the river also; for the utility of a river is too great to admit a supposition that the nation did not intend to reserve it for herself. Consequently, the nation that first established her dominion on one of the banks of the river, is considered as being the first possessor of all that part of the river which bounds her territory. Where there is a question of avery broad river, this presumption admits not of a doubt, so far, at least, as relates to a part of the river’s breadth, and the strength of the presumption increases or diminishes in the inverse ratio with the breadth of the river; for the narrower the river is, the more does the safety and convenience of its use require that it should be subject entirely to the empire and property of that nation.” To make the reasoning more complete, it might have been added, “the broader the river is, the stronger claim has each party to a portion of it, as requisitefor its own convenience, and not likely to be attended with inconvenience to the other party.”
Mr. Wheaton states the rule of division more explicitly (part ii., ch. iv.)—“Where a navigable river forms the boundary of conterminous states, the middle of the channel, or ‘thalweg,’ is generally taken as the line of separation between the two states, the presumption of law being, that the right of navigation is common to both: but this presumption may be destroyed by actual proofs of prior occupancy, and long undisturbed possession giving one of the riparian proprietors the exclusive title to the entire river.”
In an analogous manner, where a large tract of unoccupied land forms the boundary of conterminous settlements, the middle distance is suggested by natural equity as the line of demarcation, where such line is not inconvenient to either party, and when one party cannot establish a stronger presumption than the other of a perfect right in its own favour.
Thus, Messrs. Pinckney and Monroe contended, that “by the application of this principle to the discovery made by M. de la Salle of the bay of St. Bernard, and his establishment there on the western side of the River Colorado, the United States have a just right to a boundary founded on the middle distance between that point and the then nearest Spanish settlement; which, it is understood, was in the province of Panuco, unless that claim should be precluded on the principle above mentioned. To what point that would carry us, it is equally out of our power to say; nor is it material, as the possession in the bay of St. Bernard, taken in connection with that on the Mississippi, has been always understood, as of right we presume it ought, to extend to the Rio Bravo, on which we now insist.”
Thethirdrule is, “that whenever any European nation has thus acquired a right to any portion of territory on that continent, that right can never be diminished or affected by any other Power, by virtue of purchases made, by grants, or conquests of the natives within the limits described.”
“It is believed,” continued the commissioners, “that this principle has been admitted, and acted on invariably, since the discovery of America, in respect to their possessions there, by all the European Powers. It is particularly illustrated by the stipulations of their most important treaties concerning those possessions, and the practice under them, viz., the Treaty of Utrecht in 1713, and that of Paris in 1763.”
The practice of European nations has certainly recognised in the nation which has first occupied the territory of savage tribes, that live by hunting, fishing, and roaming habits, the sole right of acquiring the soil from the natives by purchase, or cession, or conquest, for the purpose of establishing settlements. The more humane spirit of the modern code of nations seems disposed to reduce this right to a right ofpre-emption, as against other European nations.
The applicability of the above principles to the solution of the questions at present under discussion between the governments of the United States and Great Britain, will be considered in a subsequent chapter.
NEGOTIATIONS BETWEEN GREAT BRITAIN AND THE UNITED STATES IN 1823-24.