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try, and was not afterwards resumed. But the following observations upon the 2 Articles, contained in a Letter from Mr. Madison' to Messrs. Monroe and Pinkney, of 30th July, 1807, show how far Mr. Jefferson, then President of The United States, had authorized those Commissioners to accede to them.
“ Access by land or inland navigation from the British Territories, through the Territory of The United States to the River Mississippi, is not to be allowed to British Subjects, with their goods or effects, unless such articles shall have paid all the duties, and be within all the Custom-house Regulations, applicable to goods and effects of Citizens of The United States. An access through the Territory of The United States to the Waters running into the Western side of the Mississippi, is under no modification whatever to be stipulated to British Subjects."
Such, then, was the state of things in relation to this interest in question, at the time when the War of 1812 broke out; and at the Negotiation of Ghent, the same question of Boundary again occurred for adjustment. The right of the British to a line from the Lake of the Woods to the Mississippi, had never been renounced : and, at the last Negotiation between the Parties, 4 Years after The United States had acquired Louisiana, and with it all the Spanish rights upon the Mississippi, the British Government, in assenting to take the 49th parallel of Latitude, as a substitute for the line to the Mississippi, had expressly re-stipulated for the free Navigation of the River, and free access to it from our Territories; to both of which Messrs. Monroe and Pinkney had been explicitly authorized to accede.
Under this state of things, it had never been admitted by the British, nor could we maintain against them by argument, even that the Mississippi River was within our exclusive jurisdiction : for so long as they had a right by Treaty to a Line of Boundary to that River, and consequently to Territory upon it, they also had jurisdiction upon it; nor, consequently, could the Instructions of 15th April, 1813, had they even been still in full force, have restricted the American Commissioners from making or receiving a proposition, for continuing to the British the right of navigating the River, which they had enjoyed, without ever using it, from the time of the Treaty of 1783, when The United States had received, by cession from them, the right of enjoying it jointly with them.
Bearing in mind this state of things, we are also to remember, that, in the Conference of 19th August, 1814, and in the Letter of that date, from the British to the American Plenipotentiaries, (see Wait's State Papers, Vol. IX. pp. 334 and 338,) they had claimed a new North-western Boundary Line from Lake Superior to the Mississippi, and the free navigation of that River. To this the American Commissioners had answered on the 24th of August, 1814: The Undersigned perceive that the British Government "propose, without purpose specifically alleged, to draw the Boundary Line Westward, not from the Lake of the Woods, as it now is, but from Lake Superior :" and they objected to it, as demanding a cession of Territory.
The British Plenipotentiaries, on the 4th September, 1814, replied:
“As the necessity for fixing some Boundary for the North-western Frontier has been mutually acknowledged, a proposal for a discussion on that subject cannot be considered as a demand for a cession of Territory, unless The United States are prepared to assert that there is no limit to their Territories in that direction, and that, availing themselves of the geographical error upon which that part of the Treaty of 1783 was founded, they will acknowledge no Boundary whatever ; then, unquestionably, any proposition to fix one, be it what it may, must be considered as demanding a large cession of Territory from The United States.
“Is the American Government prepared to assert such an unlimited right, so contrary to the evident intention of the Treaty itself? Or, is His Majesty's Government to understand that the American Plenipotentiaries are willing to acknowledge the Boundary from the Lake of the Woods to the Mississippi, (the arrangement made by a Convention in 1803, but not ratified,) as that by which their Government is ready to abide ?
« The British Plenipotentiaries are instructed to accept favourably such a proposition, or to discuss any other Line of Boundary which may be submitted for consideration.”
I stop here for a moment to observe how instinctively, if the ex. pression may be allowed, both the Parties in this Correspondence recur to the Treaty of 1783, with a consciousness that it was yet in full force, as an appeal for either in support of its Claims. The expression in the above American Note, applied to the Boundary, “as it now is;" the reference of the British Note to the geographical error in the Treaty of 1783, and their willingness to discuss the arrangement of 1803, (the shortest Line from the Lake of the Woods to the Mississippi,) both acknowledge the Treaty of 1783 as the basis of all proposition and all argument, and as being yet in force for every thing which should not be otherwise provided for in the new Treaty.
In their Note of 21st October, 1814, the British Commissioners said:
“ On the subject of the Fisheries, the Undersigned expressed with so much frankness, at the Conference already referred to, the views of their Government, that they consider any further observations on that topic as unnecessary at the present time.
“On the question of the Boundary between the Dominions of His Majesty and those of the United States, the Undersigned are led to expect, from the discussion which this subject has already undergone, that the North-western Boundary, from the Lake of the Woods to the Mississippi, (the intended arrangement of 1803,) will be admitted without objection.”
Thus stood the Parties and the subject, when, on the 10th of November, 1814, the American Plenipotentiaries sent the first Projet of a Treaty to the British Commissioners. It contained no Article relating either to the Fisheries or to the Mississippi; but, in the Note which accompanied it, to meet the notification twice given on the part of the British Government, that they did not intend to grant, without equivalent, the liberty of fishing within the British Jurisdiction, the counter-notification, already noticed, was introduced, informing them that the American Government did not consider the fishing liberties as forfeited by the War, and that they would remain in full force without needing any new grant to confirm them. At this stage of the Negotiation, therefore, the American Plenipotentiaries did actually pursue the first of those three other ways of proceeding, which Mr. Russell, in the Postscript to the Original of his Letter of 11th February, 1815, says they might have taken, and to which he adds that he would have assented, namely, to contend for the continuance of the Fishing Privilege, notwithstanding the War, without saying any thing about the navigation of the Mississippi. It cannot but be surprising to find Mr. Russell, within 3 months after these events, writing privately to the Secretary of State, stating this as a course other than that which we had pursued, and that he would have assented to it if we had; when it was the very course that we did pursue, and he had assented to it. We did contend, not for the indestructibility, as Mr. Russell terms it, of the Treaty of 1783, but that, from its peculiar character, it was not abrogated by the mere occurrence of War. We never maintained that the Treaty of 1783 was indestructible, or imperishable, but that the Rights, Liberties, and Boundaries, acknowledged by it as belonging to us, were not abrogated by mere War. We never doubted, for example, that we might be compelled to stipulate a new Boundary; but that would have been, not as a consequence of mere War, but the effect of conquest, resulting from War. The difference between our principle and that of the British, was, that they, considering the Rights acknowledged as belonging to us by the Treaty, as mere grants, held them as annulled by War alone; while we, viewing them as Rights existing before the Treaty, and only acknowledged by it, could not admit them to be forfeited without our own assent. Britain might have recovered them by conquest; but that could not be consummated without our acquiescence, tacit or expressed. Mr. Russell, who assented to our principle, and asserted it with us, now says he always thought the British principle was the true one. If the American Mission, at that trying time, had acted upon it, he never would have prophesied the Convention of October, 1818.
The 8th Article of the Projet of a Treaty, sent by the American Commissioners on the 10th of November, offered the Boundary which had been proposed in 1807, a Line North or South to Latitude 49, and Westward, on that parallel, as far as the Territories of the two Countries extended; and said nothing about the Mississippi. But when, on the 26th of November, the British Plenipotentiaries returned the Projet, with their proposed Amendments, they accepted the 49th parallel, Westward, from the Lake of the Woods, for the Boundary, but with the following addition to the Article: “And it is further agreed, the Subjects of His Britannick Majesty shall at all times have access, from His Britannick Majesty's Territories, by land or inland navigation, into the aforesaid Territories of The United States to the River Mississippi, with their goods, effects, and merchandise, and that His Britannick Majesty's Subjects shall have and enjoy the free navigation of the said River."
It was to meet this demand that, at the Conference of 1st December, the American Plenipotentiaries proposed to strike out all those words, and to substitute the Amendment contained in the Protocol of that Conference, already communicated to Congress. It was thus that the relation which Mr. Russell, within 3 months afterwards, so singularly professess not to perceive between the Fishing liberties and the Mississippi navigation, not only naturally arose, but forced itself upon the American Plenipotentiaries. They had saved the Fishing liberties from surrender, as they had been specially instructed to do, by asserting that the Treaty of 1783 had not been abrogated, ipso facto, by the War. Two days before receiving this Counter-projet, they had received from Washington a fresh Instruction, expressly authorizing them to conclude a Treaty on the basis of the status ante bellum, including, of course, the Fishing liberty on one side, and the navigation of the Mississippi on the other. They could not, therefore, consistently with those Instructions, either reject this British demand, or abandon to surrender the Fisheries. They offered, therefore, the Amendment containing the renewed acknowledgment of both; and they said to the British Plenipotentiaries-We have told you that we consider all the rights, secured to us by the Treaty of 1783, as still in force. What we demand, if you assent to it, we must yield in return. If, as we say, the Treaty of 1783 is yet in force, you have the right of navigating the Mississippi, and we have the Fishing rights and liberties unimpaired. If, as you say, the Treaty is abrogated, how can you claim the right of navigating the Mississippi ? You must admit the one, or not demand the other. We offer you the alternative of a new stipulated admission of both, or a total omission of both. We offer you in application the choice of our principle or of your own.
The British Commissioners took the proposal for reference to their Government, by whom it was immediately rejected. But, to show how anxious they were to obtain from us the surrender of our Fishing liberties, and how cheaply they valued the rightof navigating the Mississippi, as one of the last expedients of Negotiation, they offered us an Article agreeing that, after the Peace, the Parties would further negotiate "respecting the terms, conditions, and regulations, under which the Inhabitants of The United States" should again enjoy the Fishing liberties in consideration of a fair equivalent, to be agreed apon between His Majesty and the said United States, and granted by the said United States for such liberty aforesaid;" and a reciprocal Stipulation with regard to the British Right of navigating the Mississippi. As the Parties after the Peace would have been just as competent further to negotiate on these points, if so disposed, without this Article as with it, its only effect would have been a mutual surrender, on the American side, of the Fishing liberties, and on the British side, of the right to navigate the Mississippi ; with this difference, that we should have surrendered, in direct violation of our Instructions, a real, existing, practical Liberty, which, even in the War of our Independence, had been deemed of the highest importance, and at its close had been, with infinite difficulty, secured; a Liberty, of which that portion of the Union, whom it immediately concerns, had been, from the time of the Treaty of 1783, in the constant, real, and useful possession; while the British would have surrendered absolutely nothing -a right which, by inference from their own principle, was abrogated by the War; a right which, under the Treaty of 1783, they had enjoyed for 30 years, without ever using it, and which, in all human probability, never would have been of more beneficial nse to the British Nation, than would be to the People of The United States, the right of navigating the Bridgewater Canal, of the Danube.
There was certainly an inconsistency on the part of the British Government, in claiming a right to navigate the Mississippi, while asserting that the Treaty of 1783 was abrogated by the War: and when pressed by us to say on what principle they claimed it without offering for it an equivalent, they said the equivalent was, their acceptance of the 49th parallel of Latitude for the North-western Boundary, instead of the Line, to which they were entitled by the Treaty of 1783, to the Mississippi. As they gave up the Line to the river, they said they had a right to reserve its Navigation, and access to it for that purpose. They had said the same thing to Messrs. Monroe and Pinkney in 1807; and the principle had been assented to by them, with the subsequent sanction of President Jefferson. Still the whole argument leaned upon the continuing validity of the Treaty of 1783; for the Boundary Line, as well as the Mississippi Navigation, was null and void, if that Treaty was abrogated. We replied to them, that, although we were willing to agree to the 49th parallel of Latitude for