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• No . Xxiii 1

no. XIII

1795.

The fourth and fifth articles of the treaty, from similarity of object, will naturally be considered together. The fourth, reciting a doubt, “whether the river Mississippi extends so far northwestward as to be intersected by a line drawn due west from the Lake of the Woods, in the manner mentioned by the treaty of peace,” agrees that measures shall be taken in concert between the two governments, to make a joint survey of that river, from a degree of latitude below the falls of St. Anthony, to the principal source or sources thereof, and of the parts adjacent thereto; and that if in the result it should appear that the said river would not be intersected by such a line as above mentioned, the two parties will proceed by amicable negotiation to regulate the boundary line in that quarter, as well as all other points to be adjusted between them, according to justice and mutual convenience, and the intent of the treaty of peace. The fifth, reciting that doubts have arisen, what river was truly intended under the name of the river St. Croix, mentioned in the treaty of peace, and forming a part of the boundary therein described, provides that the ascertainment of the point shall be referred to three commissioners, to be appointed thus: One to be named by his Britannic Majesty, another by the President of the United States, with the advice and consent of the Senate, the third by these two, if they can agree in the choice; but if they cannot agree, then each of them to name a person, and out of the persons named, one drawn by lot in their presence to be the third commissioner. These commissioners are to meet at Halifax, with power to adjourn to any place or places they may think proper; are to be sworn to examine and decide the question according to the evidence which shall be laid before them by both parties; and are to pronounce their decision, which is to be conclusive, by a written declaration under their hands and seals, containing a description of the river, and particularly the latitude and longitude of its mouth and of its source.

These articles, though they have been adjusted with critical propriety, have not escaped censure. They have even in one instance been severely reprobated, as bringing into question things about which there was no room for any—and which a bare inspection of the map was sufficient to settle.

With regard to the Mississippi, there is no satisfactory evidence that it has ever been explored to its source. It is even asserted that it has never been ascended beyond the 45th degree of north latitude, about a degree above the falls of St. Anthony. Fadeus’s map, in 1793, will serve as a specimen of the great uncertainty which attends this matter. It notes that the river had not been ascended beyond the degree of latitude just mentioned, and exhibits three streams, one connected with the Marshy Lake in that latitude, another with the White Bear Lake near the 46th degree, and the third with the Red Lake in the 47th degree; denominating each of the two first, “the Mississippi by conjecture,” and the last, “Red Lake River, or Lahontan’s Mississippi,”—all of them falling considerably short, in their northern extent, of the Lake of the Woods, which is placed as high as the 50th degree of north latitude. Thus stands this very clear and certain point, which, we are told, it was disgraceful on the part of our envoy to have suffered to be brought into question.

There is, however, a specific topic of blame of the article which has greater plausibility. It is this: that it does not finally settle the question, but refers the adjustment of the closing line to future negotiation, in case it should turn out that the river does not stretch far enough north to be intersected by an east and west line from the Lake of the Woods. I answer, that the arrangement is precisely such as it ought to have been. It would have been premature to provide a substitute till it was ascertained that it was necessary. This could only be done by an actual survey. A survey is therefore provided for, and will be made at the joint expense of the two countries.

That survey will not only determine whether a substitute be requisite or not, but it will furnish data for judging what substitute is proper and most conformable to the true intent of the treaty. Without the data which it will afford, any thing that could have been done would have been too much a leap in the dark. National acts, especially on the important subject of boundary, ought to be bottomed on a competent knowledge of circumstances. It ought to be clearly understood how much is retained, how much is relinquished. Had our envoy proceeded on a different principle, if what he had agreed to had turned out well, it would have been regarded as the lucky result of an act of supererogation. If it had proved disadvantageous, it would have been stigmatized as an act of improvidence and imprudence.

The strong argument for having settled an alternative is the avoiding of future dispute. But what alternative could have been agreed upon, which might not have bred controversy? The closing line must go directly or indirectly to the Mississippi—which of the streams reputed or conjectured to be such, above the falls of St. Anthony, is best entitled to be so considered? To what known point was the line to be directed? How was that point to be identified with adequate certainty? The difficulty of answering these questions will evince that the danger of controversy might have been increased by an impatience to avoid it, and by anticipating, without the necessary lights, an adjustment which they ought to direct.

The facts with regard to the river St. Croix are these: the question is, which of two rivers is the true St. Croix? The dispute concerning it is as old as the French possession of Nova Scotia. France set up one river; Great Britain another. The point was undecided when the surrender of Nova Scotia by the former to the latter put an end to the question as between those parties. It was afterward renewed between the colonies of Nova Scotia and Massachusetts Bay, which last, in the year 1762, appointed commissioners to ascertain, in conjunction with commissioners which might be appointed by the province of Nova Scotia, the true river, but no final settlement of the matter ensued.

The treaty of peace gives us for one boundary, the river St. Croix, but without designating it. Hence it has happened that not long after the peace was concluded, the question, which had been before agitated between France and Great Britain, and between the provinces of Massachusetts and Nova Scotia, was revived between the State of Massachusetts and that province, and it has ever since continued a subject of debate.

A mode of settling the dispute was under the consideration of Congress in the year 1785; and powers were given to our then Minister at the Court of London, to adjust the affair, but nothing was concluded. And we learn from a letter of Mr. Jefferson to Mr. Hammond, dated the 15th December, 1784, that it then also engaged the attention of our government; that the ascertaining of the point in dispute was deemed a matter of “present urgency,” and that it had before been the subject of application from the United States to the Government of Great Britain.

It is natural to suppose, that a dispute of such antiquity between such different parties, is not without colorable foundation on either side; at any rate, it was essential to the preservation of peace that it should be adjusted.

If one party could not convince the other by argument, of the superior solidity of its pretensions, I know of no alternative but arbitration or war. Will any one pretend that honor required us in such a case to go to war, or that the object was of a nature to make it our interest to refer it to that solemn, calamitous, and precarious issue? No rational man will answer this question in the affirmative. It follows, that an arbitration was the proper course, and that our envoy acted rightly in acceding to this expedient. It is one, too, not without precedent among nations, though it were to be wished, for the credit of human moderation, that it was more frequent.

Is there any good objection to the mode of the arbitration? It seems impossible that any one more convenient or fair could have been devised, and it is recommended by its analogy to what is common among individuals.

What the mode is, has been already detailed, and need not be repeated here. It is objected, that too much has been left to chance; but no substitute has been offered which would have been attended with less casuality. The fact is, that none such can be offered. Conscious of this, those who make the objection have not thought fit to give an opportunity of comparison by proposing a substitute. What is left to chance? Not that there shall be a final decision; for this is most effectually provided for. It is not only positively stipulated that commissioners, with full and definitive power, shall be appointed, but an ultimate choice is secured, by referring, in the last resort, to a decision by lot, what it might not be practicable to decide by agreement. This is the ne plus ultra of precaution. Is it that this reference to lot leaves it too uncertain of what character or disposition the third commissioner may be? If this be not rather a recommendation of the fairness of the plan, how was it to be remedied? Could it have been expected of either of the parties, to leave the nomination to the other? Certainly not. Would it have been advisable to have referred the ultimate choice to some other state or government? Where would one have been found, in the opinion of both parties, sufficiently impartial? On which side would there have been the greatest danger of a successful employment of undue influence? Is it not evident that this expedient would have added to equal uncertainty, as to character and disposition, other casualities and more delay? Should it have been left to the two commissioners appointed by the parties to agree at all events? It might have been impossible for them to come to an agreement, and then the whole plan of settlement would have been frustrated. Would the sword have been a more certain arbiter? Of all uncertain things, the issues of war are the most uncertain. What do objections of this kind prove, but that there are persons resolved to object at all events?

The submission of this question to arbitration has been represented as an eventual dismemberment of empire, which, it has been said, cannot rightly be agreed to, but in a case of extreme necessity. This rule of extreme necessity is manifestly only applicable to a cession or relinquishment of a part of a country, held by a clear and acknowledged title; not to a case of disputed boundary.

It would be a horrid and destructive principle that nations could not terminate a dispute about the title to a particular parcel of territory, by amicable agreement, or by submission to arbitration as its substitute; but would be under an indispensable obligation to prosecute the dispute by arms, till real danger to the existence of one of the parties should justify, by the plea of extreme necessity, a surrender of its pretensions.

Besides, the terms in which writers lay down the rule, and the reason of it, will instruct us that where it does apply, it relates not to territory as such, but to those who inhabit it, on the principle that the social compact entitles all the members of the society to be protected and maintained by the common strength in their rights and relations as members. It is understood that the territory between the two rivers in dispute is either uninhabited, or inhabited only by settlers under the British. If this be so, it obviates all shadow of difficulty on our side. But be it as it may, it would be an abuse of the rule, to oppose it to the amicable adjustment of an ancient controversy, about the title to a particular tract of country, depending on a question of fact, whether this or that river be the one truly intended by former treaties between the parties. The question is not, in this case, Shall we cede a part of our country to another power? It is this—To whom does this tract of country truly belong? Should the weight of evidence be on the British side, our faith, pledged by the treaty, would demand from us an acquiescence in their claim. Not being able to agree in opinion on this point, it was most equitable and most agreeable to good faith to submit it to an impartial arbitration.

It has been asked, among other things, whether the United States were competent to the adjustment of the matter without the special consent of the State of Massachusetts. Reserving a more particular solution of this question to a separate discussion of the constitutionality of the treaty here. I shall content myself with remarking that our treaty of peace with Great Britain, by settling the boundaries of the United States without the specific consent or authority of any State, assumes the principle that the Government of the United States was of itself competent to the regulation of boundary with foreign powers—that the actual government of the Union has even more plenary authority with regard to treaties than was possessed under the confederation, and that acts, both of the former and of the present government, presuppose the competency of the national authority to decide the question in the very instance under consideration. I am informed, also, that the State of Massachusetts has, by repeated acts, manifested a corresponding sense on the subject.

A reflection not unimportant occurs here. It was, perhaps, in another sense than has been hitherto noticed, a point of prudence in both governments to refer the matter in dispute to arbitration. If one had yielded to the pretensions of the other, it could hardly have failed to draw upon itself complaints, and censures, more or less extensive, from quarters immediately interested or affected.

Camillus.

(From the Argus.)