Chapter XI

NEGOTIATION BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1818.

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

The Treaty of Ghent, between Great Britain and the United States of America, was signed on the 24th of December 1814, and it was agreed in the first article, "that all territory, places, and possessions whatsoever taken by either party from the other during the war, or which may be taken after the signing of this treaty, excepting only the islands hereinafter mentioned [in the bay of Passamaquoddy,] shall be restored without delay." By virtue of this article, Mr. Monroe, the Secretary of State at Washington, wrote to Mr. Baker, the British charge d'affaires, on July 18, 1815, to inform him that measures would be taken by the United States to occupy without delay the post on the Columbia river, which a British expedition had succeeded in taking possession of during the war, as not being within the exception stipulated. [British and Foreign State Papers, 1821-22, p. 459.] To this communication an indecisive reply was made by Mr. Baker, and the affair was allowed to rest till 1817, when it appears that the United States despatched the Ontario sloop of war to resume possession of this post, without giving previous notice to Mr. Bagot, the British minister at Washington. This led to an inquiry on the part of Mr. Bagot, relative to the destination of the Ontario, and the object of her voyage, and to a statement from him, that "the post in question had not been captured during the late war, but that the Americans had retired from it under an agreement made with the North-west Company, who had purchased their effects, and who had ever since retained peaceable possession of the coast." He further observed, that no claim for the restitution of this post could be grounded upon the first article of the Treaty of Ghent, and that "the territory itself was early taken possession of in his Majesty's name, and has been since considered as forming a part of his Majesty's dominions."

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

Mr. Adams, in the course of his subsequent instructions to Mr. Rush, in his letter of May 20, 1818, sets forth very clearly and fully the pretensions of the United States. "As it was not anticipated that any disposition existed in the British government to start questions of title with us on the borders of the South Sea, we could have no possible motive for reserve or concealment with regard to the expedition of the Ontario. In suggesting these ideas to Lord Castlereagh, rather in conversation than in any formal manner, it may be proper to remark the minuteness of the present interests, either to Great Britain or to the United States, involved in this concern; and the unwillingness, for that reason, of this Government, to include it among the objects of serious discussion with them. At the same time you might give him to understand, though not unless in a manner to avoid every thing offensive in the suggestion, that from the nature of things, if in the course of future events it should ever become an object of serious importance to the United States, it can scarcely be supposed that Great Britain would find it useful or advisable to resist their claim to possession by systematic opposition. If the United States leave her in undisturbed enjoyment of all her holds upon Europe, Asia, and Africa, with all her actual possessions in this hemisphere, we may very fairly expect, that she will not think it inconsistent with a very wise or friendly policy, to watch with eyes of jealousy and alarm every possibility of extension to our natural dominion in North America, which she can have no solid interest to prevent, until all possibility of her preventing it shall have vanished." (State Papers, 1821-22, p. 464.)

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

Great Britain, in admitting the right of the United States to be the party in possession of Fort George pending the discussion of the title to it, attached the most liberal interpretation to the Treaty of Ghent, and certainly gave to the United States, in all future discussions, the advantage of the presumption of law, on the ground of possession, as against Great Britain:--"Commodum possidentis in eo est, quod etiamsi ejus res non sit, qui possidet, si modo actor non potuerit suam esse probare, remanet in suo loco possessio." But, beyond this, nothing was conceded. Doubtless, in order to oust the United States, it would now be necessary for Great Britain to make out a perfect and exclusive title, which she does not attempt to set up, but the re-occupation of the post by the officers of the United States, expressly in conformity to the Treaty of Ghent, established nothing further than the fact that they were in the possession of it before the war broke out.

In the mean time negotiations were being carried on in London for the settlement of various points at issue between the two governments--including the fisheries; the boundary line from the Lake of the Woods westwards; the settlement at the Columbia river; the indemnification for slaves carried off from the United States; and the renewal of a treaty of commerce. It would appear from a letter addressed by Messrs. Gallatin and Rush to Mr. Adams, in October 20, 1818, that in the course of the above negotiations the British commissioners were altogether unwilling to agree to a boundary line, unless some arrangement was made with respect to the country westward of the Stony Mountains. "This induced us to propose an extension of the boundary line [as drawn along the 49th degree of north latitude, from the Lake of the Woods to the Stony Mountains,] due west to the Pacific Ocean. _We did not assert that the United States had a perfect right to that country, but insisted that their claim was at least good against Great Britain._ The 49th degree of north latitude had, in pursuance of the Treaty of Utrecht, been fixed indefinitely as the line between the northern British possessions and those of France, including Louisiana, now a part of our territories. There was no reason why, if the two countries extended their claims westward, the same line should not be continued to the Pacific Ocean. So far as discovery gave a claim, ours to the whole country on the waters of the Columbia River, was indisputable. It had derived its name from that of the American ship, commanded by Captain Gray, who had first discovered and entered its mouth. It was first explored from its sources to the ocean by Lewis and Clarke, and before the British traders from Canada had reached any of its waters; for it was now ascertained that the river Tacoutche-Tesse, discovered by Mackenzie, and which he had mistaken for the Columbia, was not a branch of that river, but fell into the sound called 'the Gulf of Georgia.' The settlement at the place called Astoria, was also the first permanent establishment made in that quarter. The British plenipotentiaries asserted that former voyages, and principally that of Captain Cook, gave to Great Britain the rights derived from discovery, and they alluded to purchases from the natives south of the River Columbia, which they alleged to have been made prior to the American Revolution. They did not make any formal proposition for a boundary, but intimated that the river itself was the most convenient that could be adopted, and that they would not agree to any that did not give them the harbour at the mouth of the river, in common with the United States." [State Papers, 1819-20, p. 169.]

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

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

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

The framers, however, of the second article of the Treaty of 1783, were ignorant of the true position of the sources of the Mississippi. It was in consequence stipulated by the fourth article of the subsequent Treaty of 1794, that a "joint survey of the river from one degree below the falls of St. Anthony, to the principal source or sources of the said river, and of the parts adjacent thereto," should be made; and if, on the result of the survey, it should appear that the river could not be intersected by the above-mentioned line, the parties were to regulate the boundary line by amicable negotiation, according to justice and mutual convenience, and in conformity to the intent of the Treaty of 1783. This joint survey never took effect. In 1798, however, Mr. Thomson, the astronomer of the North-west Company determined the latitude of the sources of the Mississippi to be in 47 deg. 38', and thus it was definitively ascertained, that no line could be drawn due west from the north-western point of the Lake of the Woods, which is in latitude 49 deg. 37', so as to meet the head-waters of the Mississippi. In consequence, by a convention signed on the 12th of May 1803, by Mr. Rufus King and Lord Hawkesbury, it was agreed that the boundary should be a line from the north-west corner of the Lake of the Woods by the shortest line, till it touched the River Mississippi [British and Foreign State Papers, 1819-20, p. 158.] It is to this treaty that President Jefferson alludes in his letter of August 1803, referred to by Mr. Pakenham, in his letter of September 12, 1844:--"The boundaries [of Louisiana] which I deem not admitting question, are the high lands on the western side of the Mississippi, inclosing all its waters, [the Missouri of course,] and terminating in the line drawn from the north-west point of the Lake of the Woods to the nearest source of the Mississippi, _as lately settled_ between Great Britain and the United States." This treaty, however, was never ratified, most probably in consequence of the cession of Louisiana to the United States, by the treaty signed at Paris on the 30th April, 1803; as this cession gave to the United States the title which France had re-acquired from Spain, by the treaty of St. Ildefonso in 1800, to the western bank of the Mississippi. In consequence, we find that in a convention concluded at London between Messrs. Monroe and Pinckney, and the Lords Holland and Auckland, in 1806, it was agreed by the fifth article, "that a line drawn due north or south [as the case may require,] from the most north-western point of the Lake of the Woods, until it shall intersect the 49th parallel of north latitude, and from the point of such intersection due west, along and with the said parallel, shall be the dividing line between his Majesty's territories and those of the United States, to the westward of the said lake, as far as their said respective territories extend in that quarter; and that the said line shall, to that extent, form the southern boundaries of his Majesty's said territories, and the northern boundary of the said territories of the United States; provided that nothing in the present article shall be construed to extend to the north-west coast of America or to the territories belonging to or claimed by either party on the continent of America to the westward of the Stony Mountains." (Martens' Recueil des Traites, viii., p. 594.)

This was the first notice of any claim on the part of the United States to territory west of the Rocky Mountains: it may be presumed that the acquisition of the western bank of the Mississippi formed the ostensible basis of her claim, as on that ground the expedition of Lewis and Clarke had been despatched in the preceding year to follow up the Missouri to its source, and thence to trace down to the Pacific Ocean the most direct and practicable water-communication for the purposes of commerce. It may be observed, that the arrangement contemplated by this fifth article was highly favourable to the United States, as their acquired title to Louisiana would not strictly have entitled them to any territory north of the Mississippi. This convention, however was never ratified by the United States, on account of the absence of any provisions to restrain the impressment of British sailors serving on board of American ships. (Schoell, Histoire des Traites de Paix, ch. 40.)

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

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

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

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

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

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

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

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

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