Chapter XIII: Treaty of Washington

The Treaty of San Ildefonso.--Ineffectual Negotiations between Spain
and the United States, in 1805, respecting the Boundary of
Louisiana.--Resumed in 1817.--M. Kerlet's Memoir cited by Spain,
Crozat's Charter by the United States, as Evidence.--Spain proposes
the Missouri as the mutual Boundary.--The United States propose to
cross the Rocky Mountains, and draw the Line from the Snow Mountains
along 41 deg. to the Pacific.--Negotiations broken off.--Spain proposes
the Columbia River as the Frontier.--Offers the Parallel of 41 deg. to the
Multnomah, and along that River to the Sea.--Error in Melish's
Map.--The United States propose the Parallel of 41 deg. to the
Pacific.--Spain proposes the Parallel of 42 deg. to the Multnomah, and
along that River to 43 deg., thence to the Pacific.--The 42 deg. Parallel
adopted.--Source of the Multnomah or Willamette River, in about
44 deg.--Wilkes' exploring Expedition--Third Article of the Treaty.--The
asserted Rights of Spain to the Californias.--Her Title by
Discovery.--The United States decline to discuss them.--The asserted
Rights of the United States to the Valley of the Mississippi.--Mr.
Greenhow's Remarks.--The Spanish Commissioner declines to
negotiate.--Design of the President of the United States.--Question of
Rights abandoned.--Object of the Spanish Concessions.--Santa
Fe.--Ultimate Agreement.--Review of the Claims of the two
Parties.--Principles of international Law advanced by the United
States.--Possession of the Sea-coast entitles to Possession of the
interior Country.--Vattel.--Inconsistency of the Diplomatists of the
United States.--Treaty of Paris.--Natural Boundary of conterminous
Settlements, the Mid-distance.--Vattel.--Wheaton.--Acquisition of
Title from Natives barred by first Settlers against other European
Powers.--Right of Pre-emption.

In the same year in which the Convention of 1818 was concluded at London between the United States and Great Britain, negotiations were being carried on at Washington between Spain and the United States, with the view of determining the effects of the Treaty of 1803, whereby Louisiana had been ceded by France to the latter power. It had been stipulated in the treaty of San Ildefonso in 1800, that Spain should retrocede "the colony or province of Louisiana, with the same extent which it now has in the hands of Spain, and which it had when France possessed it, and such as it ought to be according to the treaties subsequently made between Spain and other powers." (British and Foreign State Papers, 1817-18, p. 267-9.) The Treaty of 1803 in its turn ceded Louisiana to the United States, "in the name of the French republic, for ever and in full sovereignty, with all its rights and appurtenances, as fully and in the same manner as they have been acquired by the French republic, in virtue of the above-mentioned treaty with his Catholic Majesty." It thus became requisite to determine the limits of this new acquisition of the United States, both on the side of the Floridas, and on that of New Spain. An examination of the discussion regarding the eastern boundary towards the Floridas is unnecessary on the present occasion. The question respecting the western limit was, perhaps, the more difficult to settle, from the circumstance that Texas was claimed by Spain as a province of New Spain, whilst the United States insisted that it was a portion of Louisiana: whilst Spain contended that she had only ceded the _Spanish province_ of Louisiana, the United States maintained that she had retroceded the _French colony_. Spain thereupon proposed a line which, "beginning at the Gulf of Mexico between the River Carecut or Cascasiu, and the Armenta or Marmentoa, should go to the north, passing between Adaes and Natchitoches, until it cuts the Red River," on the ground that the Arroyo-Hondo, which is midway between Natchitoches and Adaes, had been, in fact, considered to be the boundary in 1763. The United States on the other hand, insisted on the Rio Bravo del Norte as the western frontier, on the ground that the settlement of La Salle in the Bay of St. Bernard (Matagorda) carried with it a right to the territory as far as the Rio Bravo. Beyond the Red River Spain proposed that the boundary should be determined by commissioners, after a survey of the territory, then but little known, and a reference to documents and dates, "which might furnish the necessary light to both governments upon limits which had never been fixed or determined with exactness." (State Papers, 1817-18, p. 321.) Such was the proposal made by Don Pedro Cevallos on the part of Spain, on April 9th, 1805. Messrs. Pinckney and Moore, in reply, proposed a compromise in connection with the western frontier, that a line along the River Colorado, from its mouth to its source, and from thence to the northern limits of Louisiana, should be the boundary; but the Spanish government declined to accept their proposal, and the negotiations were not resumed till the year 1817.

Spain had, in the mean time, during the captivity of the Spanish monarch in France, been unexpectedly deprived of the greater part of West Florida, in 1810, by the United States, without any declaration of war, or stipulation of peace, which could seem to authorise it. On re-opening the negotiation in 1817, the Spanish Government, having waived all demands on this head, proposed to cede the two Floridas to the United States in exchange for the territory which lies between the River Mississippi and the well-known limit which now separates, and has separated Louisiana, when France possessed it, before the year 1764, and even before the death of King Charles II. of Spain, from the Spanish province of Texas: so that the Mississippi might be the only boundary of the dominions of his Catholic Majesty and of those of the United States. (State Papers, 1817-1818, p. 356.)

In the course of the subsequent negotiations, the Spanish commissioner, Don Luis de Onis, in a letter of the 12th of March 1818, refused to admit the authority of the grant of Louis XIV. to Crozat as evidence of the limits of Louisiana, and referred to the memoir drawn up by M. Kerlet, for many years governor of the province before it was ceded to Spain by the Treaty of 1763, containing a description of its proper extent and limits. This memoir had been delivered by the Duc de Choiseul, minister of France, to the Spanish ambassador at Paris, as a supplement to the Act of Cession of Louisiana. (State Papers, 1817-18, p. 437.) On the other hand, the Secretary of State, on the part of the United States, maintained that "the only boundaries ever acknowledged by France, before the cession to Spain in Nov. 3, 1762, were those marked out in the grant from Louis XIV. to Crozat." She always claimed the territory which Spain called Texas, as being within the limits, and forming part of Louisiana, "which in that grant is declared to be bounded westward by New Mexico, eastward by Carolina, and extending inward to the Illinois, and to the sources of the Mississippi, and of its principal branches." (State Papers, 1817-18, p. 470.)

These discussions were suspended for a short time, in consequence of difficulties between the two governments respecting the Seminole Indians in Florida; but on the 24th of October Don Luis d'Onis proposed, that "to avoid all causes of dispute in future, the limits of the respective possessions of both governments to the west of the Mississippi shall be designated by a line beginning on the Gulf of Mexico, between the rivers Marmentoa and Cascasiu, following the Arroyo-Hondo, between Adaes and Natchitoches, crossing the Rio Roxo, or Red River, at 32 deg. of latitude and 98 deg. of longitude, from London, according to Melish's map, and thence running directly north, crossing the Arkansas, the White, and the Osage Rivers, till it strikes the Missouri, and then following the middle of that river to its source, so that the territory on the right bank of the said river will belong to Spain, and that on the left bank to the United States. The navigation of the Mississippi and Marmentoa shall remain free to the subjects of both parties." (State Papers, 1818-19, p. 276.)

No proposal had as yet been advanced by either party to carry the boundary line across the Rocky Mountains till October 31, 1818, when Mr. Adams offered, as the ultimatum of the United States, a "line from the mouth of the River Sabine, following its course to 32 deg. N. L., thence due north to the Rio Roxo, or Red River, following the course of that river to its source, touching the chain of the Snow Mountains in latitude 37 deg. 25' north, thence to the summit, and following the chain of the same to 41 deg., thence following the same parallel to the South Sea." The Spanish commissioner, in his reply, undertook to admit the River Sabine instead of the Marmentoa, on condition "that the line proposed by Mr. Adams should run due north from the point where it crosses the Rio Roxo till it strikes the Missouri, and thence along the middle of the latter to its source;" but in regard to the extension of the line beyond the Missouri, _along the Spanish possessions to the Pacific_, he declared himself to be totally unprepared by his instructions to discuss such a proposal. The negotiations were in consequence broken off. Subsequently, the Spanish commissioner, having received fresh instructions from his government in a letter of June 16, 1819, proposed to draw the western boundary line between the United States and the Spanish territories from the source of the Missouri to the Columbia River, and along the course of the latter to the Pacific, which Mr. Adams, on the part of the United States, rejected as inadmissible. Don Luis d'Onis thereupon, having expressly waived all questions as to the right of either power to the territory in dispute, and also as to the limits of Louisiana, proposed that the boundary line, as suggested by Mr. Adams, should follow the Sabine river to its source, thence by the 94th degree of longitude to the Red River of Natchitoches, and along the same to the 95th degree; and crossing it at that point, should run by a line due north to the Arkansas, and along it to its source, thence by a line due west till it strikes the source of the River St. Clemente or Multnomah, in latitude 41 deg., and along that river to the Pacific Ocean: the whole agreeably to Melish's map. This is another very remarkable instance of the danger of referring even to the best maps, when territorial limits are to be regulated by the physical features of a country. There must have been a monstrous error in Melish's map, which the Spanish commissioner had before him, if such a line could have been drawn upon it from the source of the Arkansas _due west_ to the source of the Multnomah, the modern Willamette River. Mr. Adams, in reply, proposed a slightly modified line "to the source of the Arkansas in 41 deg., and thence due west to the Pacific along the parallel of 41 deg. according to Melish's map up to 1818; but if the source of the Arkansas should fall south or north of 41 deg., then the line should be drawn due north or south from its source to the 41st parallel, and thence due west to the sea." This would have been an intelligible line. Don Luis d'Onis then communicated a project of a further modified line from the 100th parallel of longitude west of Greenwich along the middle of the Arkansas to the 42d parallel; "thence a line shall be drawn westward, by the same parallel of latitude, to the source of the River San Clemente, or Multnomah, following the course of that river to the 43 deg. of latitude, and thence by a line due west to the Pacific Ocean." Another counter project was proposed by Mr. Adams on the 13th of February, and ultimately it was agreed between the parties to admit the parallel of 42 deg. from the source of the Arkansas westward to the Pacific Ocean, with the proviso that if the source of the Arkansas should be north or south of 42 deg., the line should be drawn from it south or north to the 42d parallel. It was fortunate that this proviso was adopted, for actual surveys have since determined the source of the Arkansas to be at the foot of the Sierra Verde, in about 46 deg. 45' north latitude. On the other hand, as an illustration of the lamentable want of information on the part of the Spanish commissioner in respect to the boundary line which he proposed to be drawn, first of all along the parallel of 41 deg. due west to the source of the Multnomah, and secondly along the parallel of 42 deg. due west to the same river, it may be observed, that the source of this river is ascertained to be very little further south than the 44th parallel of latitude, as may be seen in the excellent American map attached to Commander Wilkes' Exploring Expedition, though even so late as in Mitchell's map for 1834 it is placed in about 42 deg.

The Treaty of Washington, or the Floridas, was thus at last concluded on the 22d February, 1819, and by the third article, after specifying the boundary line, as above described, between the two countries west of the Mississippi, it concludes thus: "The two high contracting parties agree to cede and renounce all their rights, claims, and pretensions to the territories described by the said line; that is to say, the United States hereby cede to his Catholic Majesty, and renounce for ever, all their rights, claims, and pretensions to the territories lying west and south of the above described line; and in like manner his Catholic Majesty cedes to the United States all his rights, claims, and pretensions to any territories east and north of the said line, and for himself, his heirs and successors, renounces all claim to the said territories for ever." (Martens' Nouveau Recueil des Traites, v., p. 333.)

It will be observed from the words of the above article, that the nature of the rights reciprocally ceded are in no manner specified. It thus becomes necessary to look to the antecedent negotiations to determine this question. In the first communication from the Chevalier d'Onis, on January 5, 1818, in respect to the western boundary of Louisiana, we find him assert that "the right and dominion of the Crown of Spain to the north-west coast of America, as high up as the Californias, is not less certain and indisputable (than her claim to West Florida,) the Spaniards having explored as far as the 47th degree in the expedition under Juan de Fuca in 1592, and in that of Admiral Fonte to the 55th degree in 1640.

"The dominion of Spain in these vast regions being thus established, and her rights of discovery, conquest, and possession, being never disputed, she could scarcely possess a property founded on more respectable principles, whether of the law of nations, of public law, or any others which serve as a basis to such acquisitions as all the independent kingdoms and states of the earth consist of." (State Papers, 1817-18, p. 427.)

Mr. Adams, in his reply of January 16, 1818, stated that "the President of the United States considered it would be an unprofitable waste of time to enter again at large upon topics of controversy, which were at that time [1805] so thoroughly debated, and upon which he perceives nothing in your notes, which was not then substantially argued by Don Pedro Cevallos, and to which every reply essential to elucidate the rights and establish the pretensions on the part of the United States was then given." Without, therefore, noticing even in the slightest manner that portion of the Spanish title now for the first time set out in respect of the Californias, and which had not in any manner been alluded to in the previous correspondence, he simply proposed, "the Colorado River from its mouth to its source, and from thence to the northern limits of Louisiana, to be the western boundary; or to leave that boundary unsettled for future arrangement." It may be observed, that the paramount object of the United States at this moment, was to obtain the cession of the Spanish claims to territories _eastward_ of the Mississippi. [State Papers, 1817-18, p. 450.] The western frontier was comparatively of less pressing importance.

Various communications having in the mean time been exchanged, Mr. Adams at last, in his letter of Oct. 31, 1818, proposed for the first time, on the part of the United States, an extension of the boundary to the Pacific Ocean, namely, a line drawn due west along the 41st parallel. He did not attempt, on this occasion, to contest the position which Spain had taken up in respect to territory west of the Rocky Mountains, but contented himself with again asserting, that the rights of the United States to the entire valley of the Mississippi and its confluents were established beyond the reach of controversy. Mr. Greenhow [p. 316] observes, "On these positive assertions of the Spanish minister, Mr. J. Q. Adams, the American plenipotentiary and Secretary of State, did not consider himself required to make any comment; and the origin, extent, and value of the claims of Spain to the north-western portion of America, remained unquestioned during the discussion."

The Spanish commissioner seems to have regarded the silence of Mr. Adams as a tacit admission that his position was unassailable, and therefore was totally unprepared for the proposal of the United States, if we may judge from his reply:--"What you add respecting the extension of the same line beyond the Missouri, along the Spanish possessions to the Pacific Ocean, exceeds by its magnitude and its transcendency all former demands and pretensions stated by the United States. Confining, therefore, myself to the power granted to me by my sovereign, I am unable to stipulate any thing on this point." [State Papers, 1818-19, p. 284.]

Mr. Adams, in his reply of Nov. 30, 1818, [ibid. 291,] writes, "As you have now declared that you are not authorised to agree, either to the course of the Red River, [Rio Roxo,] for the boundary, nor to the 41st parallel of latitude, from the Snow Mountains to the Pacific Ocean, the President deems it useless to pursue any further the attempt at an adjustment of this object by the present negotiation." Don Luis, in withdrawing for the present moment from the negotiation, in his letter of Dec. 12, 1818, [ibid., p. 502,] observes, "I even expressed my earnest desire to conclude the negotiation, so far as to admit the removal of the boundary line, from the Gulf of Mexico, on the river Sabine, as proposed by you; and I only added, that it should run more or less obliquely to the Missouri, thereby still keeping in view the consideration of conciliating the wish that your government might have, of retaining such other settlements as might have been formed on the bank of that river, and observing, nevertheless, that it was not to pass by New Mexico, or _any other provinces or dominions of the crown of Spain_."

The Spanish commissioner, after obtaining fresh instructions to authorize him to extend the boundary line to the Pacific Ocean, stated in a letter of Jan. 16, 1819, to Mr. Adams, [State Papers, 1819-20, p. 565,] that "his Majesty will agree that the boundary line between the two states shall extend from the source of the Missouri, westward to the Columbia River, and along the middle thereof to the Pacific Ocean;" in the hope that this basis would be accepted by the President, "as it presents the means of realizing his great plan of extending a navigation from the Pacific to the remotest points of the northern states."

This offer was not accepted, and Mr. Adams, in his reply of Jan. 29, 1819, simply stated, "that the proposal to draw the western boundary line between the United States and the Spanish territories on this continent, from the source of the Missouri to the Columbia River, cannot be admitted," (ibid. p. 566;) and at the same time he renewed his proposal of the 31st of October last, as to the parallel of 41 deg.

Don Luis de Onis, as might be expected, did not accede to this, and in his next letter, of Feb. 1, 1819, writes, "I have proved to you in the most satisfactory manner, that neither the Red River of Natchitoches, nor the Columbia, ever formed the boundary of Louisiana; but as you have intimated to me that it is useless to pursue the discussion any further, I acquiesce with you therein, and I agree that, keeping out of view the rights which either party may have to the territory in dispute, we should confine ourselves to the settlement of those points which may be for the mutual interest and convenience of both.

"Upon this view, therefore, of the subject, and considering that the motive for declining to admit my proposal of extending the boundary line from the Missouri to the Columbia, and along that river to the Pacific, appears to be the wish of the President to include, within the limits of the Union, all the branches and rivers emptying into the said River Columbia, I will adapt my proposals on this point, so as fully to satisfy the demand of the United States, without losing sight of the essential object, namely, that the boundary line shall, as far as possible, be natural and clearly defined, and leave no room for dispute to the inhabitants on either side."

He therefore proposed, as the Red River rose within a few leagues of Santa Fe, the capital of New Mexico, to substitute the Arkansas for the Red River; so that the line along the Red River should not be drawn further westward than the 95th degree of longitude, and crossing it at that point, should run "due north to the Arkansas, and along it to its source; thence, by a line due west, till it strikes the source of the River St. Clemente, or Multnomah, in latitude 41 deg., and along that river to the Pacific Ocean. The whole agreeably to Melish's map."--(State Papers, 1819-20, p. 568.)

Mr. Adams on the other hand, on Feb. 6, 1819, repeated the proposal of the United States as to the line from the source of the Arkansas River being drawn along the parallel of 41 deg. N. L. to the Pacific, with other modifications in the general detail of the boundary.

This proposal, however, was not accepted, and the Spanish commissioner in his turn, on Feb. 9, proposed a different line, to be drawn "along the middle of the Arkansas to the 42 deg. of latitude; thence a line shall be drawn westward by the same parallel of latitude to the source of the River San Clemente or Multnomah, following the course of that river to the 43 deg. of latitude, and thence by a line to the Pacific Ocean." (Ibid. p. 570.)

Mr. Adams, in his answer of February 13, 1819, still retained the parallel of 41 deg. of latitude from the source of the Arkansas to the South Sea, according to Melish's map. (Ibid. p. 575.)

The Chevalier de Onis, on the 16th of February 1819, ultimately agreed "to admit the 42 deg. instead of the 43 deg. of latitude from the Arkansas to the Pacific Ocean." (Ibid. p. 580.)

These extracts from the documentary correspondence preliminary to the Treaty of 1819, will show the nature of the claims maintained by the two parties, and thus serve to explain the meaning of the third article of the treaty. Spain asserted her right and dominion over the northwest coast of America as high up as the Californias, as based upon the discoveries of Juan de Fuca in 1592, and Admiral Fonte in 1640. The United States made _no claim_ to territory west of the Rocky Mountains. On the other hand, the United States asserted her right over the coasts of the Mexican Gulf from the Mississippi to the Rio Bravo by virtue of Crozat's grant, and of the settlement of La Salle in the Bay of St. Bernard, whilst Spain maintained that the expedition of Hernando de Soto and others entitled her by discovery to the entire coasts of the Mexican Gulf, and that the crown of Spain, before 1763, had extended her dominion eastward over the right side of the Mississippi from its mouth to the mouth of the Missouri, and northward over the right side of the latter river from its mouth to its source; in other words, that the dependencies of the Spanish province of New Mexico extended as far as the Missouri and the Mississippi, and the Spanish province of Texas as far as the Red River and Mississippi. The rights, claims, and pretensions, therefore, to any territories lying east and north of the parallel of 42 deg., which Spain, by the 3rd article of the Treaty of 1819, ceded to the United States, had respect to the Spanish province of Texas, the Spanish province of New Mexico, and the Californias; the rights, claims, and pretensions which the United States ceded to his Catholic Majesty to any territories west and south of this line, had reference to the coasts of the Gulf of Mexico as far the Rio Bravo, and the inland country; for no claim or pretension had been advanced by the United States to territory beyond the Rocky Mountains, and the object of the negotiation was expressly to determine the boundaries of Louisiana, which the United States insisted had been ceded to them in the full extent in which it had been possessed by France, according to the limits marked out by Louis XIV. in his grant to Crozat.

In the course of these negotiations, we find certain principles of international law laid down by the commissioners of the United States as applicable to the question of disputed boundaries. They seem to have been advanced after careful consideration, for Messrs. Pinckney and Monroe formally enunciated them on the 20th of April 1805, as "dictated by reason, and adopted in practice by European Powers in the discoveries and acquisitions which they have respectively made in the new world;" and Mr. Adams, on the 12th of March 1820, restated them again as principles "sanctioned alike by immutable justice, and the general practice of the European nations, which have formed settlements and held possessions in this hemisphere." (British and Foreign State Papers, 1817-18, pp. 327, 467.)

The _first_ is, "That whenever _any European nation takes possession of any extent of sea-coast_, that possession is understood as extending into the interior country, to the sources of the rivers emptying _within that coast_, to all their branches, and the country they cover, and to give it a right in exclusion of all other nations to the same."

"It is evident," write Messrs. Pinckney and Monroe, (ibid., p. 327,) "that some rule or principle must govern the rights of European Powers in regard to each other in all such cases, and it is certain that none can be adopted, in those to which it applies, more reasonable or just than the present one. Many weighty considerations shew the propriety of it. Nature seems to have destined a range of territory so described for the same society, to have connected its several parts together by the ties of a common interest, and to have detached them from others. If this principle is departed from, it must be by attaching to such discovery and possession, a more enlarged or contracted scope of acquisition; but a slight attention to the subject will demonstrate the absurdity of either. The latter would be to restrict the rights of a European Power, who discovered and took possession of a new country, to the spot on which its troops or settlements rested, a doctrine which has been totally disclaimed by all the Powers who made discoveries and acquired possessions in America. The other extreme would be equally improper; that is, that the nation who made such discovery should, in all cases, be entitled to the whole of the territory so discovered. In the case of an island, whose extent was seen, which might be soon sailed round, and preserved by a few forts, it may apply with justice; but in that of a continent it would be absolutely absurd. Accordingly, we find, that this opposite extreme has been equally disclaimed and disavowed by the doctrine and practice of European nations. The great continent of America, north and south, was never claimed or held by any one European nation, nor was either great section of it. Their pretensions have been always bounded by more moderate and rational principles. The one laid down has obtained general assent.

"This principle was completely established in the controversy which produced the war of 1755. Great Britain contended that she had a right, _founded on the discovery and possession of such territory_, to define its boundaries by given latitudes in grants to individuals, retaining the sovereignty to herself from sea to sea. This pretension on her part was opposed by France and Spain, and it was finally abandoned by Great Britain in the treaty of 1763, which established the Mississippi as the western boundary of her possessions. _It was opposed by France and Spain on the principle here insisted on, which of course gives it the highest possible sanction in the present case._"

To a similar purport Vattel, b. i., Sec. 266, writes: "When a nation takes possession of a country, with a view to settle there, it takes possession of every thing included in it, as lands, lakes, rivers, &c." It is universally admitted, that when a nation takes possession of a country, she is considered to appropriate to herself all its natural appendages, such as lakes, rivers, &c., and it is perfectly intelligible, why the practice of European nations has sanctioned the exclusive title of the first settlers on any extent of sea-coast to the interior country within the limits of the coast which they have occupied, because their settlements bar the approach to the interior country, and other nations can have no right of way across the settlements of independent nations. In reference, however, to the extent of coast, which a nation may be presumed to have taken possession of by making a settlement in a vacant country, the well-known rule of _terrae dominium finitur, ubi finitur armorum vis_, might on the first thought suggest itself; but it has not been hitherto held that there is any analogy between jurisdiction over territory, and jurisdiction over adjoining seas: on the contrary, it was ruled in the Circuit Court of New York, 1825, in the case of Jackson v. Porter, 1 Paine, 457, "that under the second article of the treaty with Great Britain, the precincts and jurisdiction of a fort are not to be considered three miles in every direction, by analogy to the jurisdiction of a country over that portion of the sea surrounding its coasts, but they must be made out by proof." The comity of nations, however, has recognised in the case of settlements made in a vacant territory for the purpose of colonisation, a title in the settlers to such an extent of territory as it may fairly be presumed that they intend to cultivate (Vattel, b. i., Sec. 81,) and the possession of which is essential either to the convenience or security of the settlement, without being inconvenient to other nations. The limitation of this extent seems rather to have been regulated by special conventions, than by any rule of uniform practice.

On the authority of this principle as above stated, Messrs. Pinckney and Monroe contended that "by the discovery and possession of the Mississippi in its whole length, and _the coast adjoining it_, the United States are entitled to the whole country dependent on that river, the waters which empty into it, and their several branches, _within the limits on that coast_. The extent to which this would go it is not in our power to say; but the principle being clear, dependent on plain and simple facts, it would be easy to ascertain it."

It will have been observed, that the opposition of France and Spain to the pretensions of Great Britain is adduced by Messrs. Pinckney and Monroe, as giving the highest sanction to this principle. A passage in Mr. Calhoun's letter of Sept. 3, 1844, to Mr. Pakenham forms a striking contrast. Having alluded to the claims of France and Great Britain, first conflicting on the banks of the Ohio, he writes: "If the relative strength of these different claims may be tested by the result of that remarkable contest, that of continuity westward must be pronounced to be the stronger of the two. England has had at least the advantage of the result, and would seem to be foreclosed against contesting the principle--particularly as against us, who contributed so much to that result, and on whom that contest, and her example and her pretensions from the first settlement of our country, have contributed to impress it so deeply and indelibly." In other respects Mr. Calhoun adopts the same view of the early European settlements in North America, that the respective nations "claimed for their settlements usually, specific limits _along the coasts_ or bays on which they were formed, and generally a region of _corresponding width_ extending across the entire continent to the Pacific Ocean."

That the hypothesis of Mr. Calhoun's argument was meant to be affirmed, may be inferred from Mr. Gallatin having categorically asserted the same fact in 1826, as being notorious. It does not however appear from the protracted negotiations prior to the Treaty of Paris, that any conflicting principles of international law were advanced by the two parties, or any question of disputed title set at rest by the treaty. On the contrary, it was intimated in the course of the negotiations, by Great Britain, that she considered France to have the natives on the left bank of the Mississippi under her protection, when she proposed that the King of France should "consent to leave them under the protection of Great Britain."

The _second_ rule is, "that whenever a European nation makes a discovery, and takes possession of any portion of that continent, and another afterwards does the same _at some distance from it_, where the boundary between them is not determined by the principle above mentioned, the middle distance becomes such of course. The justice and propriety of this rule are too obvious to require illustration."

The principle here stated seems very analogous to that which is recognised by all writers on international law, as regulating the navigation of rivers. Thus Vattel (i., Sec. 266)--"When a nation takes possession of a country bounded by a river, she is considered as appropriating to herself the river also; for the utility of a river is too great to admit a supposition that the nation did not intend to reserve it for herself. Consequently, the nation that first established her dominion on one of the banks of the river, is considered as being the first possessor of all that part of the river which bounds her territory. Where there is a question of a _very broad river_, this presumption admits not of a doubt, so far, at least, as relates to a part of the river's breadth, and the strength of the presumption increases or diminishes in the inverse ratio with the breadth of the river; for the narrower the river is, the more does the safety and convenience of its use require that it should be subject entirely to the empire and property of that nation." To make the reasoning more complete, it might have been added, "the broader the river is, the stronger claim has each party to a portion of it, as requisite for its own convenience, and not likely to be attended with inconvenience to the other party."

Mr. Wheaton states the rule of division more explicitly (part ii., ch. iv.)--"Where a navigable river forms the boundary of conterminous states, the middle of the channel, or 'thalweg,' is generally taken as the line of separation between the two states, the presumption of law being, that the right of navigation is common to both: but this presumption may be destroyed by actual proofs of prior occupancy, and long undisturbed possession giving one of the riparian proprietors the exclusive title to the entire river."

In an analogous manner, where a large tract of unoccupied land forms the boundary of conterminous settlements, the middle distance is suggested by natural equity as the line of demarcation, where such line is not inconvenient to either party, and when one party cannot establish a stronger presumption than the other of a perfect right in its own favour.

Thus, Messrs. Pinckney and Monroe contended, that "by the application of this principle to the discovery made by M. de la Salle of the bay of St. Bernard, and his establishment there on the western side of the River Colorado, the United States have a just right to a boundary founded on the middle distance between that point and the then nearest Spanish settlement; which, it is understood, was in the province of Panuco, unless that claim should be precluded on the principle above mentioned. To what point that would carry us, it is equally out of our power to say; nor is it material, as the possession in the bay of St. Bernard, taken in connection with that on the Mississippi, has been always understood, as of right we presume it ought, to extend to the Rio Bravo, on which we now insist."

The _third_ rule is, "that whenever any European nation has thus acquired a right to any portion of territory on that continent, that right can never be diminished or affected by any other Power, by virtue of purchases made, by grants, or conquests of the natives within the limits described."

"It is believed," continued the commissioners, "that this principle has been admitted, and acted on invariably, since the discovery of America, in respect to their possessions there, by all the European Powers. It is particularly illustrated by the stipulations of their most important treaties concerning those possessions, and the practice under them, viz., the Treaty of Utrecht in 1713, and that of Paris in 1763."

The practice of European nations has certainly recognised in the nation which has first occupied the territory of savage tribes, that live by hunting, fishing, and roaming habits, the sole right of acquiring the soil from the natives by purchase, or cession, or conquest, for the purpose of establishing settlements. The more humane spirit of the modern code of nations seems disposed to reduce this right to a right of _pre-emption_, as against other European nations.

The applicability of the above principles to the solution of the questions at present under discussion between the governments of the United States and Great Britain, will be considered in a subsequent chapter.