USA > Louisiana > The province and the states, a history of the province of Louisiana under France and Spain, and of the territories and states of the United States formed therefrom, Vol. II > Part 37
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* Chalmers' Collection of Treaties.
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to be about the forty-ninth degree of north latitude, though vary- ing much from that parallel on the Atlantic coast. In accordance with the provisions of the treaty, commissioners were appointed by cach power to ascertain within the specified time the bound- aries between the possessions of the two countries in America. They met on the Atlantic coast and, having agreed as a starting point on a cape or promontory in latitude fifty-eight degrees thirty minutes north, proceeded thence southwest to Lake Mistasin, thence still farther southwest until the parallel of forty-nine degrees was intersected, and thence west along that line indefi- nitely.
When the whole territory passed to Great Britain as a result of the "Seven Years War," it was not necessary longer to con- sider such line for any purpose; but after the Revolution, when the rights of the United States began to figure, the old boundary between the Hudson bay settlements and Canada was revived to show the intentions of the parties and to show that the English possessions had extended southward to the forty-ninth degree of latitude. If such had been the intentions, the northern boundary of Canada would, of course, have been the forty-ninth parallel, and its extension to the westward would have been bounded on the north by the same line. By parity of reasoning, other things being equal, it was argued that the line should be continued west- ward to the Pacific in an extension to that ocean of the domains of the United States and Great Britain. This would have been the logical result of the English policy of colonial expansion, had not other countries secured a foothold on the Pacific coast and had it not been necessary to take other considerations into account. Spain, Great Britain and the United States acquired separate and independent claims generally to the Pacific coast where the forty- ninth parallel intersected the shore line and to other places above and below that point, with or without good grounds. It should be noted that in the contentions with Great Britain the westward extension on parallels of latitude cut much more of a figure than they did in the negotiations with Spain, the reason therefor being that France had based her claims to the whole basin of the Mis- sissippi on the encompassing watershed regardless of parallels of latitude or meridians.
It was reasoned that if Canada was bounded on the north by the forty-ninth degree of latitude after the treaty of Utrecht, that parallel must have been its boundary when acquired by Great Britain in 1762-3 and was the northern boundary of the United States from the Lake of the Woods due westward to the Missis-
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sippi when the latter secured their independence. This was the argument before the peace commission in 1782-3. Later, this assumed boundary on the forty-ninth parallel, abandoned wholly from 1762-3 to 1782-3, regarded with apparent unconcern from 1783 to 1800, became the suggested parallel that should separate the British from the American possessions. However, had it not been for one consideration, the United States would never have been able to claim in 1782-3 farther north than the forty-ninth parallel or even that far. That consideration was the right under the Louisiana purchase to all of the territory watered by the Missouri and its branches. This would have thrown the bound- ary near the Rocky mountains north of the forty-ninth parallel. But the treaty of 1782-3 settled the question by carrying the northern boundary in the northwest up to the "northwesternmost point of the Lake of the Woods." Had it not been for the stipu- lations of this treaty, the chances are that the United States west of Lake Superior would have been bounded on the north by the forty-fifth parallel, the boundary mentioned in the grant to Crozat in 1712. Succeeding the Revolution, had the United States insisted on an extension westward from the "northwesternmost point of the Lake of the Woods," as they had an undoubted right to do, a large strip of land now possessed by Canada would have fallen to the United States. But it must also be borne in mind that the boundary mentioned in the treaty of Utrecht and the natural water-way extending from Lake Superior to the Lake of the Woods, were the conclusive factors by which the United States could claim so high as that lake in the peace deliberations of 1782-3. At that time the latade and longital of the Lake of the Woods were unknown, but the lake was supposed to be inter- sected by the forty-ninth parallel.
In the provisional articles of peace of November 30, 1782 and in the definitive treaty of September 3, 1783, part of Article II was made to read as follows, reference being had to the line bounding the United States on the northwest: "Thence through Lake Superior northward of the isles Royal and Philippeaux to the Long Lake; thence through the middle of said Long Lake and the water communication between it and the Lake of the Woods to the said Lake of the Woods; thence through the said lake to the most northwestern point thereof, and from thence on a due west course to the river Mississippi ; thence by a line to be drawn along the middle of said river Mississippi until it shall intersect the northernmost part of the thirty-first degree of north latitude." Article VIII of this treaty, as stated elsewhere, granted Great Britain the right to navigate the Mississippi from its source to
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the sea, because it was then thought that the Mississippi extended as far to the north as the northernmost point of the Lake of the Woods and to the westward of such point, thus giving that nation . territory on its banks. This was in accordance with the opinion expressed then and argued afterward by the United States, that the laws of nature and of nations gave any country which pos- sessed territory on any part of the banks of a river the right to navigate such river from its source to the sea. It is clear from the above article that the commissioners who negotiated the peace of 1783 thought that the Mississippi lay to the westward of the Lake of the Woods -- that is, that its sources were located at a degree of latitude as far north as the northwesternmost point of that lake. Therefore, their clear intention was to extend the northern boundary of the United States westward along the parallel which intersected the northwesternmost point of the lake.
Under date of August 6, 1791, John Jay, minister of the United States to Great Britain, presented the following proposition to Lord Grenville:# "Whereas, the boundaries of the United States, as delineated in the said treaty of peace (1783), and every article in the said treaty contained, are hereby recognized, ratified and forever confirmed ; and whereas, it is doubtful whether the river Mississippi extends so far to the north- ward as to be intersected by the west line from the Lake of the Woods, which is mentioned in the said treaty, it is agreed that the actual extent of the said river to the northward shall be explored and ascertained by commissioners for that purpose, to be appointed and authorized as follows, viz: It is agreed that if, from the report of the said commissioners, it should appear that the said river does not extend so far to the northward as to be inter- sected by the west line aforesaid, by reason whereof the bound- ary lines of he United States in that quarter would not close, then and forthwith thereupon such a closing line shall be established as shall be adjudged and determined to be most consistent with the true intent and meaning of the said treaty by commissioners to be appointed and authorized in the manner prescribed in other articles herein." To this communication Lord Grenville returned the following counter proposition: "That whereas it is now understood that the river Mississippi would at no point thereof, be intersected by such westward line as is described in the said treaty ; and whereas it was stipulated by the said treaty that the navigation of the Mississippi should be free to both parties, it is agreed that the boundary line shall run in the manner described
· American State Papers.
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by the treaty from the Lake Huron to the northward of the Isle Philippeaux in Lake Superior ; and that from thence the said line shall proceed to the bottom of West Bay in the said lake; and from thence in a due west course to the river of the Red Lake or eastern branch of the Mississippi and down the said branch to the main river of the Mississippi; and that as well on the said branch as on [- or - through Lake Supe- rior ; and from thence to the water communication between the . said lake and the Lake of the Woods to the point where the said water communication shall be intersected by a line running due north from the mouth of the river St. Croix, which falls into the Mississippi below the Falls of St. Anthony, and that the boundary line shall proceed from such point of intersection in a due south- erly course along the said line to the Mississippi, and that as well on the said water communication as on ] every part of the Missis- sippi where the same bounds the territory of the United States, the navigation shall be free to both parties, and his majesty's sub- jects shall always be admitted to enter freely into the bays, ports and creeks on the American side and to land and dwell there for the purposes of their commerce; and for greater certainty the undersigned ministers have annexed to each of the copies of this treaty a copy of the map made use of by them with the bound- aries marked thereon agreeably to this article; and the bound- aries of the United States as fixed by the said treaty of peace and by this treaty, together with all the other articles of the said treaty are hereby recognized, ratified and forever confirmed." The matter within the brackets of this proposition was an alternative offer presented for the consideration of Mr. Jav. It should be noted that these propositions of the British minister differed vastly from the manifest intention of the parties to the treaty of 1783.
Mr. Jay returned an answer to the effect that if the provisions of the treaty of 1783 could not be carried out in toto they should be so far as possible by closing over the shortest and most reason- able path or line the gap between the northwesternmost point of the Lake of the Woods and the source of the main branch of the Mississippi ; that such source had not yet been ascertained ; that the only sources of that river governing the deliberations of the convention were wholly a matter of conjecture; that a joint sur- vey should be made for determining the best mode of closing the gap in the line; that "neither Great Britain nor the United States ought to cede or to acquire any territory further than what such closing line might possibly render unavoidable;" that neither country should be content "with delusive conjectures and prob- abilities when absolute certainty could easily be had;" that if a
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line drawn westward of the Lake of the Woods could not inter- sect the Mississippi, other and reasonable measures should be taken to close the lines in that quarter ; that there was nothing in the treaty of 1783 to show that the line which should reach the Mississippi must do so at some navigable point ; that the undoubted intention had been to intersect the Mississippi at some point far above the Falls of St. Anthony which obstructed navigation ; that the parties did not know, could not have known, whether the line to be drawn due west from the Lake of the Woods would inter- sect the Mississippi at a navigable point or not ; that the stipulation in the treaty of 1783 concerning the navigation of the Mississippi, was an after-thought which gave rise to the eighth article; that there had been no thought concerning navigable water; that no stipulation was asked for nor introduced regarding facilities for the navigation of the river from the British dominions on the north ; and that the propositions of Great Britain contemplated the cession by the United States of more than thirty thousand square miles of territory no matter which of them was accepted.
Lord Grenville replied that the language of the treaty of 1783 stipulated the line should be drawn from the Lake of the Woods due west to the Mississippi; that as such a line could not be drawn, no stipulation concerning such line could be fixed or bind- ing ; that in establishing a new boundary it was as reasonable to suppose that Great Britain would be required to cede territory as the United States would be to do so; that in all settlements of the boundary the right of Great Britain to navigate the Mississippi should be borne in mind ; that as the navigation of the Mississippi had been provided for in the treaty of 1783. it must have than the intention of the parties that Great Britain should possess land upon its banks ; that if after a survey the line of 1783 could be drawn, it should be made the boundary ; that there could be no objection to the appointment of commissioners to determine the boundary, provided the rights of Great Britain to the navigation of the Mississippi were duly considered; and that no objection occurred to making a survey save that of delay.
The ministers were thus far apart in their respective demands, with almost every argument in favor of the claims of the United States. One proposition of the British minister ran the line directly north from the month of the river St. Croix till it inter- sected Rainy Lake and thence down the water courses to Lake Superior, leaving the present site of St. Paul and Minneapolis outside of the limits of the United States. The other approxi- mately ran the line westward from the present Ashland, Wis .. in about the direction of Aitkin, Minn., until it should
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' intersect "Red Lake river or Lahontan's Mississippi" some dis- tance south of Red lake, leaving the present site of Duluth north of the line. Under the former line, the American minister esti- mated that the United States would relinquish thirty-two thou- sand four hundred square miles, and under the latter thirty-five thousand five hundred and seventy-five square miles. The British contentions had no ground to stand on ; whereupon Lord Grenville, trusting that time and skillful negotiation in the future would deal more kindly with the desires of Great Britain, agreed with Mr. Jay that before concluding the boundary the necessary survey should be made. However, particular attention is called to the extravagance of the British demands and pretensions. This attitude, so carly taken in the controversy, became even more pronounced and unjustifiable as time passed and as the rights of the United States improved with the acquisition of Louisiana and the Spanish claims on the Pacific coast.
However, in the treaty of November 19, 1794, usually called "Jay's Treaty," it was stated in Article III that* "the river Mis- sissippi shall, according to the treaty of peace, be entirely open to both parties : and it is further agreed that all the ports and places on its eastern side, to whichsoever of the parties belonging, may, freely be resorted to and used by both parties in as ample a man- ner as any of the Atlantic ports or places of the United States or any of the ports or places of His Majesty in Great Britain." It was this provision to which Spain took serious and emphatic objection the following year, on the ground that the United States had no right to presume to code to England freedom to navigate the Mississippi south of the thirty first degree et latitude, because it did not own either of the banks south of that parallel. The following article was embraced in Jay's Treaty :*
"Article IV. Whereas, it is uncertain whether the river Mis- sissippi extends so far to the northward as to be intersected by a line to be drawn due west from the Lake of the Woods in the manner mentioned in the treaty of peace between His Majesty and the United States, it is agreed that measures shall be taken in concert between His Majesty's Government in America and the Government of the United States for making a joint survey of the said river from one degree of latitude below the falls of St. Anthony to the principal source or sources of said river and the parts adjacent thereto; and that if on the result of such survey it should appear that the said river would not be intersected by such a line as above mentioned, the two parties will thereupon proceed
· American State Papers.
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by amicable negotiation to regulate the boundary line in that quarter as well as all other points to be adjusted between the said parties according to justice and mutual convenience and in conformity to the intent of the said treaty."
The joint survey thus provided for was never carried into effect. It was a subject which did not press for adjustment at that time, and was permitted to lie dormant under the excitement of more important events at home and abroad. When the survey was finally made it was ascertained that the northwesternmost point of the Lake of the Woods was in latitude forty-nine degrees and thirty-seven minutes north of the equator. The United States should have insisted on this parallel for its westward extension to the Pacific ocean, because this point was fully countenanced by the treaty of 1783, and not disputed until the commissioners of the United States themselves proposed the demarcation of the forty- ninth parallel. The establishment of the forty-ninth parallel by the commissioners appointed under the treaty of Utrecht, was even declared at the time of the cession of Louisiana to the United States to be involved in considerable doubt. Of course, the United States did not anticipate the acquirement of Louisiana, and previous to the cession felt safe as to its boundaries, which were defined by the treaty of 1783. This will probably account for the lack of interest shown by the Americans prior to the cession. A few degrees more or less in the sharp angle at the Lake of the Woods would cut no serious figure; but when Louisiana was acquired the United States should at once have sent a competent surveyor to fix the northwestermost point of that lake, and then have demanded that the been ary westward should be on the parallel of that point. The unconcern before the cession may be excusable, but that afterward admits of no extenuation.
In June, 1802, Mr. Madison, secretary of state, instructed Rufus King, minister to Great Britain, to again open negotiations for the settlement of the northwestern boundary question .* He said, "The description supposes that a line running due west from that point ( the northwesternmost point of the Lake of the Woods), would intersect the Mississippi. It is now well understood that the highest source of the Mississippi is south of the Lake of the Woods; consequently that a line due west from its most north- western point would not touch any part of that river. To remedy this error it may be agreed that the boundary of the United States in that quarter, shall be a line running from that source of the Mississippi which is nearest to the Lake of the Woods, and strik-
· American Sinte Papers.
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ing it westwardly as a tangent, and from the point touched, along the watermark of the lake, to its most northwestern point, at which it will meet the line running through the lake." The question having been opened in London by Christopher Gore, charge of the United States, he wrote as follows to the secretary of state under date of October 6, 1802: "On the part of the boundary which is to connect the northwest point of the Lake of the Woods with the Mississippi, Lord Hawkesbury observed that it was evi- dently the intention of the treaty of peace that both nations should have access to and enjoy the free use of that river ; and he doubt- less meant that this access should be to each nation through their own territories. Ile remarked that commissions, which I had proposed for ascertaining the relation of the Lake of the Woods .and the Mississippi, if any doubt remained on this head, and run . ning the line between these two waters according to your proposal, might establish such a boundary as would secure to each nation this object. To the remark I made no reply, other than by observ- ing that the line suggested was what naturally seemed to be demanded by just interpretation, where such a mistake had hap- pened as was herein supposed ; but this I did, however, chiefly with a view of not assenting to his proposal and in a manner rather declining than courting the discussion. It will probably be per-' sisted in ; and I mich doubt if this Government will be inclined to adjust any boundary in this quarter that has not the right desired for its basis." Lord Hawkesbury further said that it had been the intention of the parties to the treaty of 1783 to open the Alis- sissippi freely to the vessels of both countries, and further inti- mated that such result should may to the ment of the same parties. The design of the British minister was thus easily faith- omed by Mr. Gore.
In September, 1802, the latter submitted the plans of the United States. o Lord Hawkesbury, to the following effect :* That as the second article of the treaty of 1783 supposed that a line drawn due west from the northwesternmost point of the Lake of the Woods would intersect the Mississippi, and as the highest source of the Mississippi is south of said point and such line could not thus intersect it, some provision should be made to settle the discrepancy and be incorporated in the pending treaty in accordance with the fourth article of the treaty of 1794. Mr. Gore suggested that it was "consistent with justice and the mutual convenience of the parties to establish the boundary of the United States in this quarter, by a line running from that
. Diplomatic Correspondence. .
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source of the Mississippi which is nearest to the Lake of the Woods, and striking it westwardly as a tangent, and from the point touched, along the watermark of the lake, to its most north- western point at which it will meet the line running through the lake." He further suggested that the appointment of com- missioners should be provided for in the convention.
Previous to this event, the latitude and longitude of various points in the western country, among which was the Lake of the Woods, had been ascertained for the Northwestern Fur Com- pany by its astronomer, Mr. Thomson ; but these were the figures of a private company and should not have formed the only basis for the arguments and calculations of the United States. A report of this survey* was contained in a work issued to describe the discoveries of Mckenzie's voyage or expedition. It placed the Lake of the Woods in latitude forty-nine degrees thirty-seven minutes north, and longitude ninety-four degrees thirty-one minutes west ; the northwesternmost branch of the source of the Mississippi was placed at latitude forty seven degrees thirty-eight minutes north, and longitude ninety-five degrees six minutes west. These figures were obtained in the spring of 1798. The commis- sioners of the United States had no figures of their own as to the location of these points, and were obliged to rely on those above mentioned.
In commenting upon what Mr. Gore stated Lord Hawkesbury had said as above narrated, Mr. Madison wrote as follows under date of December 16, 1802, to Mr. King :; "By the communi- cation of the 6th day of October, received from Alr. Gore, it appears that the proposition be adjusting the boundary in the northwest corner of the United States i not relished In the Brit- ish Government. The proposition was considered by the Presi- dent as a liberal one, inasmuch as the more obvions remedy for the error of the treaty would have been by a line running due north from the most northern source of the Mississippi and inter- secting the line running due west from the Lake of the Woods; and inasmuch as the branch leading the nearest the Lake of the Woods may not be the largest or most navigable one, and may consequently favor the wish of the British Government to have access to the latter. The proposition for these reasons would not have been made but for a desire to take advan- tage of the present friendly dispositions of the parties for the purpose of closing all questions of boundary between them. As
· History of the Fur Trade: Mckenzie.
t American State Papers.
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it is not probable, however, that the settlement of this particular boundary will for some time be material, and as the adjustment proposed is not viewed by the British Government in the same light as by the President, it is thought proper that it should not for the present be pursued." Ile suggested that in the mean- time provision should be made for surveys to ascertain the rights of the respective parties. It will thus be seen that Great Brit- ain, having learned as early as 1798 that the source of the Mis- sissippi was far south of the Lake of the Woods, and being impressed with the importance to her of the privilege of freely navigating the Mississippi, which had been granted her by the treaty of 1783, and confirmed by the treaty of 1794, chung at first to the idea of a boundary line running westward from the west- ern point of Lake Superior till it intersected the Mississippi, the object of the British ministry being to secure a foothold on the bank of that river by throwing its upper sources within English limits, in which case their rights to navigate the Mississippi would not be disputed by the United States. When this demand was justly refused by the latter, the British representatives persisted in requiring, as their right under the treaties of 1783 and 1794, freedom to navigate the Mississippi, regardless of where the northwestern boundary should be established. This was asking for more than their right, and for more than the parties to the treaty of 1783 had contemplated, because the latter had proceeded on the supposition that the sources of the Mississippi were within the British possessions. When they were found not to be so, but were really found to be many miles within the American territory, the right of Great Britain to navigate that stream was rendered an absolute nullity by every construction and every law. Neither party at this time had the least idea that Louisiana was soon to pass to the possession of the United States. The lan- guage nsed in the treaty of 1783, and the manifest intention of the parties at that time, were the sole bases employed for settling the respective rights of the two countries.
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