Front Page Titles (by Subject) GALLATIN TO HENRY CLAY. - The Writings of Albert Gallatin, vol. 2
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GALLATIN TO HENRY CLAY. - Albert Gallatin, The Writings of Albert Gallatin, vol. 2 
The Writings of Albert Gallatin, ed. Henry Adams (Philadelphia: J.B. Lippincott, 1879). 3 vols.
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GALLATIN TO HENRY CLAY.
New York, 29th June, 1826.
I had the honor to receive on the 26th instant, through Mr. Ironsides, your despatches Nos. 1 to 4, dated 19th to 21st of this month, together with the accompanying books and documents.
There has not been time sufficient thoroughly to examine instructions so voluminous and applying to so many important subjects; and I embark to-morrow. This must be my apology if I have not fully understood some parts of the instructions, and for any erroneous views of the subject which may be discovered in the cursory observations I beg leave to submit to your consideration.
I. North-Eastern boundary. I had understood that it was intended to confide to me the negotiation which the government of the United States is desirous to open with that of Great Britain, in order to attempt to settle the differences on that matter, and to avoid the difficulties which lie in the way of a settlement of the question in the mode stipulated by treaty. And my full powers, which must be communicated to the British commissioners at the very outset of my negotiation, authorize me to treat and to sign a convention or treaty on the boundaries generally between the two countries. But, according to the instructions, I am only authorized to try to have the subject referred to a direct negotiation at Washington; and should that attempt fail, and the British commissioners agree to the other proposal, that of a statement of the case agreed to by both parties and to be exhibited to the umpire, the modifications of that statement if it is drawn by the British government, or the preparing of it if drawn by the government of the United States, are also to be referred to Washington without any agency on my part.
This course will render my task very simple and easy, and though somewhat unpleasant to me on account of the apparent discrepancy between the powers and the instructions, I may give an explanation at the time of communicating the powers. But it seems to me that there may arise cases under which a more enlarged authority would be advantageous to the public service.
The great inconvenience of a reference to a third power is acknowledged, and much injury may arise to the United States from the manner in which the subject will be presented to that sovereign if no statement of the case is agreed on. Prussia is amongst the powers I am directed to propose. She lives in daily and deadly fear of Russia, relies for support principally on England, and has nothing to fear or to hope from the United States. Mr. Canning, in one of his notes to Mr. King, says that she is less under the influence of Russia than is generally supposed. There is little doubt that she will be the choice of England. But even if struck from our list, the same considerations, though with less force, will apply more or less to every other European sovereign. But supposing that we have an umpire who, if not altogether impartial, may have sufficient respect for character not to commit a flagrant injustice, he may find sufficient pretences to cover this in the very imperfect and improper manner in which the proceedings of the commissioners have been carried on.
At the first outset the British commissioner refused to concur in surveying and ascertaining the meridian line from the source of the St. Croix River to the point contended on the part of the United States to be the north-west corner of Nova Scotia, and he equally refused to have the residue of the boundary, as claimed by the United States, surveyed under the joint authority of the commissioners. In a suit between individuals where the title to a tract of land or certain boundaries are in question, the first order of the court is to direct a survey to be made which shall clearly exhibit the conflicting claims of the contending parties. Such survey decides no question, and is intended only to enlighten the tribunal; to place all the facts before it. In the case now under consideration, the survey of the territory, showing the lines contended for by each party, was equally necessary, either to enable the commissioners to make a correct decision, or with a view to the contingent reference to a third power. The refusal to concur in so reasonable a demand was so preposterous that a stand should at once have been made on that ground; instead of which, if I understand rightly the proceedings, the commissioner of the United States assented to a survey, under the joint authority of the commission, of the river Restook, and to an ascertainment by barometric observations of the height of certain hills or ranges of hills; thereby seeming to admit that the extraordinary ground assumed by the British government was tenable, and, in fact, more tenable than our own. Finally, the British commissioner made a very long report to both governments, in which all the facts and arguments on that side of the question are embodied and brought together in view. And, on application for the report of the commissioner of the United States, I was informed at the office of the Department of State that there was no other but a reference to the arguments of the agent and to other papers and maps, most of which were made without the joint authority of the commission, and are only to be considered as ex-parte evidence.
These facts are alluded to only for the purpose of calling once more your attention to the very unfavorable position in which the United States may be placed before a third power. If the British government shall reject the two proposals I am authorized to make, that for a direct negotiation at Washington and that for a statement of the case mutually agreed to; and if, according to the instructions, I acquiesce in the immediate reference to a third power, you will have to decide on official reports and complete evidence on one side, and on inofficial statements and ex-parte evidence on ours, it is much to be apprehended that, with the right entirely on our side, a decision may be given against the United States and the undeniable territorial rights of the State of Maine. Every effort at least ought to be used that may avert that result, either by increasing the chance of a direct negotiation, or by raising reasonable objections against a reference unless a joint statement shall be agreed on, or all the informal or ex-parte maps, surveys, &c., on our part shall be admitted by Great Britain as of equal weight with those on their part.
A previous direct negotiation is not provided for by treaty. If, when we ask for it, the British commissioners shall acquiesce in our demand, but insist that the negotiation shall be carried on in London, and not at Washington, I am not authorized to agree to this, and the chance of a negotiation may be lost. I beg leave to observe that, provided we can only obtain that a negotiation shall be opened anywhere, it not only gives a chance of an amicable final settlement of that important point, but it also gives us opportunities of supplying the want of a joint statement and the defects in the proceedings of the commissioners, by inserting in the protocol such paper or papers in support of our claim as will be a substitute for either, and must necessarily go as an official paper before the umpire, if a reference becomes still ultimately necessary.
Finally, the negotiation may be protracted to a certain extent, giving thereby, also, a chance of a better sense of justice and more friendly disposition pervading the British counsels; and it may ultimately be transferred to Washington, if that course should appear to both parties best calculated to promote a friendly arrangement.
With this view of the subject, I respectfully submit to the consideration of the President the following modifications to that part of the instructions:
1. That I may be authorized to open the negotiation on that point in London, in case either this should be insisted on by the British commissioners, or I should think that course most favorable to the interest of the United States. I think that I may be safely trusted in that respect. It has ever been my first wish not that business should be transacted by me, but that it should be done in the manner most advantageous to the public service. Whilst in France I did not hesitate to have the negotiation respecting discriminating duties referred to Washington the moment I was satisfied, and experience proved that my decision was correct, that there was a better prospect in that way of adjusting the differences on that subject. But I do not care how strict and limited the authority that may be given to conclude an arrangement. The important point at present, in my view of the subject, is to open a negotiation rather than to make immediately a final adjustment or compromise. In thus limiting the authority, the difficulty may be obviated which may arise from the necessity of consulting the wishes of the State of Maine before a conclusive arrangement can be made.
2. That, in case of a refusal on the part of Great Britain either to open a negotiation at Washington or London, or to agree to a joint statement of the case, I may not be bound to propose an immediate reference to a third power; but that I may be allowed to raise such previous objections to that reference as I may think tenable and consistent with good faith. A demand that a survey of the country in dispute, exhibiting the lines contended for by each party, should previously be made under the joint authority of both governments, or if, on inspection of the maps, arguments, &c., they shall appear sufficient, that these maps and surveys, though taken ex parte, should be admitted as if made by common consent, are the first that occur to my mind; but other objections as valid may be suggested by a further inspection of the proceedings and documents. And this is one of the reasons why I have already requested that they might all be transcribed and forwarded to me.
II. The boundary west of the Stony Mountains. The parallel of the 49th degree of north latitude will intersect the Caledonia River a short distance above its mouth, leaving the mouth to the United States, and almost the whole course of the river to Great Britain. This renders it improbable that she will accede to our proposed line without modification. A deviation not greater than what may be sufficient to give them the mouth of that river would be of no importance to the United States, and might facilitate an arrangement. The two governments being in some degree committed by the respective rejection of the line proposed by each, the pride of both may be saved by a small alteration of the line; and this consideration is in practice not to be altogether disregarded.
The time proposed for permitting British subjects to continue in settlements heretofore made south of the 49th degree of latitude seems too short. Five years are hardly sufficient to close and withdraw from the business in which the occupants are engaged. If no adjustment of the boundaries can be concluded, and the convention of 1818 is prolonged, ten years’ possession will be allowed, merely in order to prevent collisions. An equal or even longer period may certainly be allowed for the sake of coming to a final arrangement. And I should suggest fifteen instead of five years as the longest time that should be allowed for the final evacuation of the country by British traders, if that period should be insisted on, as a condition of such an arrangement. The British are excluded from any share of the Indian trade within our limits east of the Stony Mountains, not by virtue of any special treaty stipulation, but as a natural consequence of the territorial sovereignty of the United States. To provide specially for that exclusion west of the Stony Mountains does not seem necessary; but, if deemed useful, it seems to me that it should be extended to the whole Indian country, as otherwise an unfavorable inference might be drawn against our right to exclude on the east side of the mountains.
III. St. Lawrence navigation and intercourse with Canada. This subject, though perhaps less important at this time than other points of difference, and although the real interest of Great Britain does not essentially differ from ours on that question, is one of the most difficult and intricate to arrange by treaty.
Generally speaking, two courses present themselves: 1, to insist on the right and wait for a favorable opportunity to assert it, even at the risk of losing for the present the advantages which might be derived from a practical arrangement; 2, to waive for the present without renouncing the right, and to make a commercial arrangement which may remove or lessen the evils now complained of.
To look simply at the letter of the Articles A and B, the first course appears to be that which the President has determined to adopt. The Article B is stated to be a minimum, to secure the least that we can take. And it provides that the navigation of the St. Lawrence within the British dominions shall ever remain free and open to the citizens of the United States, and that, to render effectual that right, his Britannic Majesty will permit them for five years to have places of deposit at Quebec and Montreal, and afterwards either to continue that permission, or to assign them an equivalent establishment on the banks of the St. Lawrence. Nothing more can be asked as a matter of right. It is a complete admission, though not recognition, of the right claimed by the United States, and with all the characteristics belonging to a matter of right, viz., perpetuity and want of reciprocity. In this last respect, the real reciprocity consists only in the right obtained by the British to navigate that part of the channel of the St. Lawrence which is exclusively within the United States; but they are admitted in none of the navigable lakes connected with the St. Lawrence which are exclusively within the United States, whilst the citizens of the United States are to enjoy the navigation of the St. Lawrence within the British dominions. This want of reciprocity would hardly be proposed in a commercial arrangement founded solely on mutual convenience; its propriety rests on the inherent right of the citizens of the United States to navigate the river St. Lawrence through its whole extent.
I am sure that, if this is the ground really intended to be adhered to, I can add nothing to the forcible argument urged by Mr. Rush, and I certainly can entertain no hope of succeeding better than he did. Neither this nor any of the preceding observations is made for the purpose of raising any objection whatever against that course, if it has been decided on. I only fear that I may mistake the object in view. Perhaps it is not intended that I should strictly adhere to the Article or Articles A and B. There are several passages in the instructions whence it might be inferred that the intention was to waive the right for the present without renouncing it, and merely to make a temporary practical arrangement. Thus it is there said that it is more agreeable to turn from a protracted discussion which, although we are entirely confident of having the right on our side, may terminate by leaving each party in possession of the same opinion which he entertained at its commencement, to the consideration of some practical arrangement which, if possible, shall reconcile the views of both, and that the mutual interests of the two countries, independently of any considerations of right in the navigation of the St. Lawrence, should produce an arrangement satisfactory to both parties. And again, though literally limited to the Articles A and B, it is anticipated that such an arrangement may be made when, without any authority to discuss them, I am instructed to take any counter-proposals which the British government may offer for reference to my own. For what purpose is that reference if in fact the Article B secures the least that the United States can take?
But if the reference alluded to is only intended as an act of courtesy towards the British government, if it has been determined not to treat on the subject of the navigation of the St. Lawrence, properly so called, unless the substance of the Article B and which is common to the Article A can be obtained, I do not understand what objection there can be to secure by a treaty stipulation, if practicable, that exemption from duties of our produce or of the principal articles of it when imported into Canada, which it seems it would be satisfactory to obtain, though with no better guarantee than some assurances of the British government. This exemption, or at least a considerable reduction of the rate of such duties, would be a mere commercial regulation, unconnected with and not at all affecting the question respecting the right of navigating the St. Lawrence, and would, it seems, afford at this time more relief than any other measure. It is in fact nothing more than confining the treaty stipulation to the subject-matter of that paragraph of the Article A which is not common to the Article B. I have been led to take this view of the subject from the perusal of the report of the committee of the Legislature of New York, dated March 28, 1825. Though they may not be authority on questions of international law, they must certainly be allowed to understand the practical question, the interest of their constituents, the real grievance of which they complain, the remedy which will remove it.
In that report the committee say expressly that “the right to navigate the St. Lawrence can be of very little use to us unless we are allowed to trade at Montreal, and that our trade there is placed on a liberal footing;” and again, alluding to the right of deposit, that “it will afford a very uncertain and feeble protection to our Northern citizens.” The reasons for both opinions are given at large in the report, and they appear to be correct, so far at least as relates to the lumber trade, which, since the great canal is navigable, constitutes almost the sole object, and for a long time will continue to be the principal object, of exportation from the United States to Canada. To be liable to no duty or to an inconsiderable duty there, is the only efficient remedy to the evil, unless resort be had to retaliation.
It would follow that if, contrary to expectation but in conformity with the instructions, the Article B was to become part of a treaty, it would for the present afford no relief to the inhabitants of the St. Lawrence country. And we would, moreover, lose thereby what is considered by them as the only mode of obtaining redress, since the British obtaining by that article the right of navigating that channel of the river St. Lawrence which is exclusively within the dominions of the United States, their exclusion therefrom could no longer be used as retaliation for the purpose of compelling them to repeal the extraordinary duties complained of. This, it will be perceived, is another difficulty in the way of an amicable arrangement on that subject. Had I any opinion to give upon it, it would be this:
First, to determine whether it is best to adhere to the right of navigating the river St. Lawrence without compromise, or to waive the right for the present, but without renouncing it.
In the first case, to try to obtain by treaty an exemption or considerable reduction of duty on the principal articles of our produce exported into Canada, stipulating a reciprocal exemption or reduction on similar Canadian produce, including fur, imported into the United States, and to be silent on the subject of the navigation of the St. Lawrence, unless the British assent to give up the point in the manner provided by the Article A.
In the second case, to try to make a temporary arrangement, both for the navigation and for the importation of our produce, similar in substance but not in form to the Article A. But to give this any chance of success there must be reciprocity, and I apprehend that the British would ask the right to navigate Lakes Champlain and Michigan, to which there may not be any objection, provided there is an express provision against this giving them the right of participating in the trade with our Indians.
In no case whatever to propose the Article B.
IV. Colonial trade. Not having the late Acts of Parliament, and on account of the many details belonging to the subject, I cannot say that I understand yet fully the scope of the instructions. One branch only has struck me, because it was new to me. It relates to the claim of carrying colonial produce in American vessels to any foreign other than British ports. In case the British should refuse this privilege, or decline the offer of a general abolition of discriminating duties everywhere and without regard to the nature or origin of the merchandise, I am instructed to have a clause inserted reserving the right to each party to restrict the trade between the United States and the British colonies to the direct intercourse between them. I wish to understand precisely what is meant by these last words. Is it intended to prevent British vessels coming to the United States from the British colonies from going from the United States to any other port, British or foreign, than the British colonies? or to prevent any British vessel, unless she has come from the British colonies, from sailing from the United States for the said colonies? or is any other restriction contemplated? A clause in general words may be proposed; but explanations respecting its operation will be asked.
V. Articles proposed to Mr. Rush by the British commissioners at their twenty-second conference. I presume that, these articles being generally for the convenience of Great Britain, though authorized to accede to several of them, this is discretionary, and not to be done unless a satisfactory result has been obtained on other points.
But permit me to add some observations on some of those articles. 1. Mutual delivery of criminals. This subject of extradition has ever been in practice one of the most delicate and difficult of the law of nations. Even when free of many abuses, and confined to the offences of murder and forgery, the surrender of a citizen will ever be odious, and even that of an alien unpopular. National pride may feel interested in the question; but the difference between our penal codes and that of Great Britain, and those perhaps existing in the administration of justice in the two countries, form a solid objection. Questions on the evidence in support of the demand for surrender perpetually arise in the countries where the principle has been adopted. The article of the treaty of 1794 with Great Britain, which embraced a similar provision, was originally opposed as interfering with State rights, and the only attempt within my knowledge to carry it into effect was not fortunate. The case of Jonathan Robbins gave rise to two important questions: Was the act committed murder, for which the man should be surrendered? or piracy, according to the law of nations, for which he was punishable and ought to be tried in the United States? Ought his claim to be a citizen of the United States to have been examined before he was surrendered? The excitement caused by the surrender of this man, its effect on popular opinion, are well known. Is it wise, is it sound policy, on a question of doubtful utility and minor importance, to awaken ancient recollections and feelings,—perhaps to endanger a whole convention in other respects acceptable?
2. Deserters. The surrender of those belonging to the navy has, by every successive Administration, been considered as intimately connected with the question of impressment, and as a concession to Great Britain, not to be made unless she expressly renounced her pretensions to impress on board the vessels of the United States.
3. Protection to merchants in case of war. This article is unexceptionable, but does not go far enough. The protection should be extended to all vessels belonging to either party and being in the ports of the other party at the time of the war being declared or known. The United States acted on that principle at the commencement of the last war, whilst Great Britain seized and condemned the American vessels in her ports. Indemnity was afterwards refused, and the distinction maintained between property on shore or floating. To abolish this should be insisted on on our part.
I have not time to transcribe or to correct; and this letter bears evident marks of the haste with which it has been written. Whilst I request that the observations it contains may be respectfully submitted to the President, I need hardly add that, in the mean while, the instructions shall be faithfully executed to the best of my abilities. But it is a matter of considerable regret that they had not sooner been made known to me.
I have the honor, &c.