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 40
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tributary streams, besides being essentially objectionable in its general bearing, had the effect of interfering directly with the actual rights of Great Britain, derived from nse, occupancy and settlement." The skill with which the British commissioners con- cealed their real designs deserves to be particularly noted. They desired to gain a foothold below the forty-ninth degree and to have that foothold recognized by the United States. Failing in that they desired the strip of country from the forty-second to the forty-ninth degrees to remain free and open to their agents. And these demands were made in the face of an utter absence of valid claims on their part to any substantial part of the Pacific coast.
At the twenty-third conference on July 13th, the British repre- sentatives presented a counter proposition to the effect "that the third article of the convention of 1818 should cease; that the boundary line between the territories claimed by his Britannic majesty and those claimed by the United States, to the west in both cases of the Rocky mountains, shall be drawn due west along the forty-ninth parallel of north latitude to the point where that parallel strikes the great northeasternmost branch of the Oregon or Columbia river, marked in the maps as McGillivray's river, thence down along the middle of the Oregon or Columbia to its junction with the Pacific ocean ;" that the channel should be for- ever free to the inhabitants of both countries ; and that no settle- ments should be formed by the Americans north of that line nor by Britons south of that line. Of course, the Americans refused to accept this proposition. During the discussions, the chains of cach party were rigidly scrutinized. hathat's the question arose as to whether the acquisition of Louisiana by the United States conferred any rightful claim to territory to the westward of the Rocky mountains.
The argument of the British commissioners against the right of the United States to clann an extension of the province of Louisi- ana westward to the Pacific, was laid before the American com- missioners in 1826 in the following language: "1. The United States cannot claim under their treaty with Spain any greater right than Spain then had ; and as the Nootka convention has no refer- ence to the discoveries of either party and is unlimited in its dura- tion, they cannot resort to any Spanish discovery in support of their presumed title to any part of the country. 2. As at the time of concluding the Nootla convention Louisiana belonged to Spain and she made no exception to the provisions of that con- vention on account of any presumed boundaries of that province having been established by former treaties with Great Britain or
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of right extending to the Pacific, the United States cannot claim any territory on that ocean as owners of Louisiana, either as a natural extension of its boundaries westwardly, or as implied from the designation of the boundary line ( the forty-ninth parallel of latitude) settled between Louisiana and Canada on the one part and the British possessions of Hudson's bay on the other part by the commissioners appointed in pursuance of the treaty of Utrecht. 3. This convention (the Nootka) must be considered generally as having become an international law, at least for the Pacific; superseded the claims ascribed to mere prior discovery ; set aside the exclusive pretensions of Spain to the northwest part of the American continent and opened it to the commerce and settlements of all countries whatever, including the United States. 4. Actual occupancy and regard to mutual convenience are there- fore the only bases of any arrangement for the establishment of a boundary for the partition between the only Powers having settle- ments or laying claims thereto of a country which was heretofore held in common."
. The claims of the Americans were set forth by Mr. Gallatin to the following effect: "1. The United States claimed a natural extension of their territory to the Pacific ocean, on the ground of contiguity and population, which gave them a better right to the adjacent unoccupied land than could be set up by any other nation. This was strengthened by the doctrine admitted to its fullest extent by Great Britain, as appeared by all ber charters, extending from the Atlantic to the Pacific ocean, to colonies estab- lished then only on the borders of the Atlantic. How much more natural and stronger the claim, when made be a nation whe e population extended to the central parts of the continent, and whose dominions were by all acknowledged to extend to the Stony mountains. If the principle assumed by Great Britain from 1580 to 1732, as related to Atlantic colonies, was correct, she could not deny its application to the United States now owners of Louisiana. The boundary line agreed on by the commissioners appointed in pursuance of the treaty of Utrecht ( the forty-ninth parallel of latitude), though falling short of what might be claimed by the United States on other grounds, was offered by them and must at all events be binding on Great Britain. That line was indefi- nite ; it had already been confirmed to the Stony mountains ; there was no reason why it should not be continued as far as the claims of both parties extended. In point of fact the occupancy on which Great Britain principally relied, was solely owing to that west- wardly extension of their trading settlements of Hudson's bay
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and its waters. 2. In right of their own discoveries, viz: the month of Columbia river by Captain Gray, and the complete exploration of the river from its most westerly sources to its mouth, before any of its branches had been explored by the British. The United States has a right to claim against Great Britain and every other nation the whole territory drained by that river and its various branches, together with a certain portion of the coast north and south of the mouth of the river. In this also we were supported by the established usages amongst nations, and as adopted by Great Britain in various instances (and amongst others in her charter to the Hudson's Bay Company, which charter extends to all the territory watered by the rivers emptying into the bay). 3. By virtue of their treaty with Spain, the United States claimed all which Spain might have lawfully claimed north of forty-two degrees of latitude, cither as derived from Spanish discoveries or by virtue of rights of sovereignty acknowledged by other nations and by Great Britain particularly."*
In commenting on the attitude of Great Britain, Mr. Gallatin wrote that "It must always be kept in mind that Great Britain insists that the whole country west of the Stony mountains is a vacant territory, to which no nation has any exclusive right, which is open to all and to which a title may be acquired and can only be acquired by actual occupancy and settlement." The English commissioners, therefore, desired that the country should remain common or neutral ground for the term of fifteen years longer, without any weakening of the rights of either nation. This request was undoubtedly made at the instance of the Hudson's Bay Company, who desired an unrestricted and unlimited intercourse with the western Indians as far south as possible. This claim was not admitted by the Americans, the strength of whose pretensions lay in their own discoveries and those of Spain, which they had acquired. They insisted on an extension of the boundary along the forty-ninth parallel to the Pacific ocean.
The United States claimed exclusive sovereignty over the coun- try from the forty-second to the forty-ninth degree of north lati- tude. The British commissioners sought to gain a foothokl here by securing from the United States the practical relinquishment of its exclusive claims in permitting the country to remain "free and open" for the term of fifteen years to the citizens of subjects of both nations. But although the Americans finally agreed to a ten year clause, they luckily did not yield their claim to the
. Writings of Albert Gallatin.
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exclusive sovereignty of that tract of country. The one object in here presenting these counter claims, is to show whether the United States, under the Louisiana purchase, had any rightful claims beyond the Rocky mountains. The British commissioners said, "The right derived from the cession of Louisiana to the United States, is founded on the assumption that that province, its boundaries never having been exactly defined longitudinally, may fairly be asserted to extend westward across the Rocky mountains to the shore of the Pacific. . If the title of Spain by first discovery, or the title of France as the original possessor of Louisiana, be valid, then must one or the other of those Kingdoms have been the lawful possessor of that territory at the moment when the United States claim to have discovered it. If on the other hand the Americans were the first discoverers, there is necessarily an end of the Spanish claim; and if priority of dis- covery constitutes the title that of France falls equally to the ground. . . The third ground of claim of the United States rests on the right supposed to be derived from the cession to them of Louisiana by France. In arguing this branch of the question it will not be necessary to examine in detail the very dubious point of the assumed extent of that province, since by the treaty between France and Spain of 1763 the whole of that territory, defined or undefined, real or ideal, was ceded by France to Spain and consequently belonged to Spain not only in 1790 when the convention of Nootka was signed between Great Britain and Spain, but also subsequently in 1793, the period of Gray's dis- covery of the mouth of the Columbia. If then Louisiana embraced the country west of the Rocky mountains to the south of the forty-ninth parallel of latitude, it must have embraced the Column- bia itself, which that parallel intersects; and consequently Gray's discovery must have been made in a country avowedly already appropriated to Spain, and if so appropriated necessarily included with all other Spanish possessions and claims in that quarter in the stipulations of the Nootka convention. Even if it could be shown, therefore, that the district west of the Rocky mountains was within the boundaries of Louisiana, that circumstance would in no way assist the claims of the United States. To expose the futility of the attempt to include that district within those bound- aries, it is only necessary to refer to the original grant of Louisi- ana made to De Crozat by Louis XIV shortly after its discovery by La Salle. That province is therein expressly described as 'the country drained by the waters emptying directly or indirectly into the Mississippi.' Now unless it can be shown that any of the II-26
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tributaries of the Mississippi cross the Rocky mountains from west to east, it is difficult to conceive how any part of Louisiana can be found to the west of that ridge."*
This argument was combatted by Mr. Gallatin, who among other things said .; "Crozat's grant was not for the whole of the province of Louisiana, as it was afterwards extended by France herself and as it is now held by the United States. It was bounded in that grant of 1712 by Carolina to the east, by New Mexico to the west, and on the north by the Illinois, which were then part of Canada. The most northerly branches of the Mississippi embraced in the grant were the Ohio, at that time called Wabash by the French, and the Missouri, the tine course of which was not known at that time, and the sources of which were not supposed to extend north of the forty-second parallel of latitude. No territory on the west of the Mississippi was intended to be included in the grant north of that parallel; and as New Mexico which bounded it on the west was understood to extend even farther north, it was impossible that any territory should have been included west of the sources of the rivers emptying into the Mississippi. All the ter- ritory north of the forty-second parallel of latitude claimed by France was included at that time not in Louisiana, but in the Government of New France, as Canada was then called; and by referring to the most authentic French maps, it will be seen that New France was made to extend over the territory drained or supposed to be drained by rivers emptying into the South Seas. The claim to a westwardly extension to those seas was thus early asserted as a part not of Louisiana but of New France. The King has reserved to himself in Crocat's grant the right of chlag- ing the Government of Louisiana. This was done by an ordon- nance dated in the year 1717, which annexed the Illinois to it, and from that time the province extended as far as the most northern limit of the French possessions in North America and thereby west of Canada or New France. The settlement of that northern limit still further strengthens the claim of the United States to the territory west of the Rocky mountains. The limits between the northerly possessions of Great Britain in North America and those of France in the same quarter, namely, Canada and Louisiana, were determined lo commissioners appointed in pursuance of the treaty of Utrecht. From the coast of Labrador to a certain point north of Lake Superior, those limits were fixed according to cer- tain metes and bounds, and from that point the line of demare .-
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· American Stale Papers.
+ Writings of Albert Gallatin.
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tion was agreed to extend indefinitely due west along the forty- ninth parallel of north latitude. It was in conformity with that arrangement that the United States did claim that parallel as the northern boundary of Louisiana. It has been accordingly thus settled as far as the Stony mountains by the convention of 1818 . between the United States and Great Britain ; and no adequate reason can be given why the same boundary should not be con- tinued as far as the claims of the two countries extend -- that is to say as far as the Pacific ocean. This argument is not weakened by the fact that the British settlements west of the Stony mountains are solely due to the extension of those previously formed on the waters emptying into Hudson bay. And it is from respect to a demarcation considered as binding on the parties, that the United States had consented to confine their claim to the forty-ninth par- allel of latitude, namely, to a territory of the same breadth as Louisiana east of the Stony mountains, although as founded on prior discoveries that claim would have extended much farther . north."
In a letter dated June 19, 1826, Mr. Clay said to Mr. Gallatin,+ "It is not conceivable that Great Britain has or can make out even a colorable title to any portion of the northwest coast. If she had any claim prior to the treaty of 1763, it was renounced by that treaty, according to which the Mississippi was fixed as the western limit of her territories on this continent. If she acquired any title subsequent to that epoch we have yet to learn how and by what means it was obtained. The settlement at Nootka Sound in 1788 cannot be admitted to have conferred any; but if it did that settle- ment was north of the line to which we are now willing to agree. By the renunciation and transfer contained in the treaty with Spain of 18ty, our right extended to the sixtieth degree of north latitude. By our treaty with Russia of April, 1824, it has been agreed to limit it to the fifty-fourth degree. As by the convention of 1818 the forty-ninth parallel has been agreed to be the line of boundary between the territories of the United States and Great Britain cast of the Stony mountains, there would seem to arise from that stipulation a strong consideration for the exten- sion of the line along the same parallel west of them to the Pacific ocean. In bringing themselves to consent to this boundary the Government of the United States feel that they are animated by a spirit of concession and compromise which they persuade them- selves that of Great Britain cannot but recognize and ought not to hesitate in reciprocating. You are then authorized to propose the
· American State Papers.
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annulment of the third article of the convention of 1818, and the extension of the line on the parallel of forty-nine from the eastern side of the Stony mountains where it now terminates, to the Pacific ocean as the permanent boundary between the territories of the two Powers in that quarter. This is our ultimatum and you may so announce it. We can consent to no other line more favorable to Great Britain." Mr. Clay at this time was secretary of state, and Mr. Gallatin was minister to Great Britain. The negotiations at this time resulted in the adoption of the following articles, which were incorporated in the treaty of August 6, 1827 :*
"Article I. All the provisions of the third article of the con- vention concluded between the United States of America and Ilis Majesty the King of Great Britain and Ireland on the 20th of October, ISIS, shall be and they are hereby further indefinitely extended and continued in force in the same manner as if all the provisions of the said article were herein specifically recited.
"Article II. It shall be competent, however, to either of the contracting parties, in case either should think fit, at any time after the 20th of October, 1828, on giving due notice of twelve months to the other contracting party, to annul and abrogate this convention and it shall in such case be accordingly entirely annulled and abrogated after the expiration of the said term of notice.
"Article III. Nothing contained in this convention, or in the third article of the convention of the 20th of October, 1818, hereby continued in force, shall be construed to impair or in any manner affect the claims which either of the contra ting parties may have to any part of the country westward of the Story of Kocky moun- tains."
Thus these articles postponed indefinitely the settlement of the line beyond the Rocky mountains. In 1842 it was mutually determined to again take up the question in the hope that a settle- ment could be attained, but definite results were delayed by the action of Hundson's Bay Company, who were reaping immense fortunes from such delay. Finally, the two countries in 1846 agreed practically that the boundary line should extend westward of the Rocky mountains along the parallel of forty-nine degrees, except that all of Vancouver's island should belong to Great Britain. But the treaty establishing this line was not ratified, owing to disputes over the small islands between the main land and Vancouver's island ; and the controversy was renewed and continued for the space of twenty years, with intermissions for the
· Treaties of the United States.
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apparent purpose of getting fresh breath for a still further pro- longation of the agony. It was not until 1872 that the emperor of Germany rendered the final decision in the celebrated case, and extended the line through the Canal de Haro, as the United States from the start had demanded as their right. The president of the United States, in his next message, exultingly declared that for the first time in its history the country was free from bound- ary disputes. masunich as he soon afterward issued a proclama- tion for national thanksgiving and prayer, it may safely be con- cluded that he thought the people had something to be thankful for in the amicable settlement of this ancient controversy.
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CHAPTER X
The Meaning of the Eighth Article
T HIE interpretation of the 8th article of the treaty of 1803 between France and the United States became a serious question in 1817, when Baron Hyde de Neuville, envoy extraordinary and minister plenipotentiary of France, dispatched a note of inquiry and protest to Mr. Adams, secretary of state, claiming the infraction of treaty stipulations on the part of the United States. The statements of several masters of French ves- sels had been received by him he declared "affirming that French vessels are not treated, in the ports of Louisiana, upon the footing of the most favored nations; upon investigation, it not only appears that such is actually the case, but the undersigned has even found that several prote to have been ! ha! in sin against this manifest infraction." . The French man ter, in this note of December 15, 1817, courteously asked for a reparation of the injury.
Mr. Adams in his reply to this note, under date of December 23, 1817, stated that the vessels of France were treated in the ports of Louisiana on the footing of the most favored nations ; that no other foreign nation enjoyed gratuitous advantage there which was not also enjoyed by the French ; that in consideration that the vessels of the United States should be admitted to English ports upon payment of the same duty as English vessels, the latter were permitted to enter the ports of Louisiana upon payment of the same duty as American vessels; and that this privilege was this paid for by the English. The secretary thus continued :
"The 8th article of the Treaty of Cession stipulates that the ships of France shall be treated upon the footing of the most
· American Sinte Papers.
:- :
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THE MEANING OF THE EIGHTH ARTICLE.
favored nations in the ports of the ceded territory ; but it does not say, and cannot be understood to mean, that France shall enjoy as a free gift that which is conceded to other nations for a full equivalent.
"It is obvious that if French vessels should be admitted into the ports of Louisiana upon payment of the same duties as the vessels of the United States, they would be treated, not upon the footing of the most favored nation, according to the article in question, but upon a footing more favored than any other nation, since other nations, with the exception of England, pay higher tonnage duties, and the exemption of English vessels is not a free gift, but a purchase, at a fair and equal price."
The secretary continued by saying that a more extensive con- struction of the aritele in question was inconsistent with the con- stitution of the United States, and that the articles of the treaty were incompatible with a different construction, since one of them purported to cede the territory to the United States "in full sov- ereignty," and another declared that its inhabitants "shall be incorporated in the union of the United States, and be admitted as soon as possible, according to the principles of the federal con- stitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States."
The secretary concluded his note as follows: "The under- signed is happy to be authorized to add, that the government of the United States is willing to extend to France, not only in the ports of Louisiana, but in those of all the United States, every advantage enjoyed by the vessels of Great Britain, upon the fair and just equivalent of reciprocity; and that is the mantale the vessels of France shall be treated in all the ports of the United! States, including Louisiana, on the footing of the most favored nation, enjoying gratuitously every favor indulged gratuitously to others, and every conditional favor upon the reciprocation of the same to vessels of the United States in France." *
But this construction of the articles in question, and of the treaty as a whole was not satisfactory to the French minister, who proceeded to give it an entirely different direction. He said: "} shall, in the first place, have the honor to observe, that France asks not for a free gift ; she claims the enjoyment of a right, which it is not even necessary for her to acquire, since it proceeds from herself, being a right which, when she consented to dispose of Louisiana, she had power to reserve for the interest of her trade, and the actual reservation of which is established,
. American State Papers.
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not implicitly, but in the most precise and formal terms, by the 8th article of the Louisiana treaty. France, I repeat it, asks no free gift, since the territory ceded is the equivalent already by her for all the clauses, changes and conditions, executed, or which remain to be fulfilled, by the United States; and which, prin- cipally, consist in the 7th and Sth articles of the treaty and first of the convention."
The arguments presented by the French minister in support of his construction of the treaty stipulations were artfully drawn and persistently urged. With ready skill he shifted his claims as a study of the articles in question widened his horizon. Many associated questions were brought into the discussion, and several years clapsed before the controversy was conchided.
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