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The first article of the treaty of 1815, providing for mutual freedom and liberty of commerce, cannot be construed to imply an obligation to protect the rights of foreign owners of slaves brought to our shores as
2 Op., 475, Taney, 1831.
As to fisheries, see infra, § 301 ƒfƒ.
"The rights of the United States in the British fisheries were not referred to in the treaty of Ghent, and a controversy speedily arose on the British claim to exclude American fisherman from the inshore fisheries. The diplomatic circumstances which led to the conclusion of that part of the convention of 1818 which relates to the fisheries have been referred to in the introductory note. The correspondence relating to it will be found in the 4th volume of the Folio Foreign Relations, pages 348-407. See also the papers submitted to the Senate with the treaty of 1871, pages 35-50. The subject has been often discussed in Congress. The debate in the Senate in the year 1852 presents a thorough discussion of the merits."
Mr. J. C. B. Davis, Notes, &c. See infra, §§ 301 ff.
The effect of the treaty of 1818 is to reaffirm the right of the United States to the enjoyment of the North Eastern fisheries, subject to certain renunciations. (Infra, §§ 301 ff.)
"It was contended by the United States, and denied by Great Britain, that the provision of the first article of the treaty of Ghent required the latter to make restitution or compensation for slaves, who, at the date of the ratification, were in any place that was to be restored to the United States, and who were not delivered up with the territory. The parties being unable to agree, it was provided in the convention of 1818 that this question should be referred to some friendly sovereign or state; and in 1822 it was referred to the decision of the Emperor of Russia, who rendered an award in favor of the United States. A joint commission was then appointed to ascertain the claimants and the amount of their claims under this award. Langdon Cheves was the American commissioner, George Jackson, the British. Their proceedings, which commenced August 25, 1823, were terminated in December, 1825, by a most extraordinary refusal of Mr. Jackson to execute the 5th article of the convention. * This malformation of the tribunal could only have been remedied by a spirit of mutual concession and accommodation between its component members. Such a spirit has, unfortunately, not been evinced in the course of its proceedings by Mr. Jackson.' The whole question was settled by the two Governments by a convention on the 13th November, 1826, providing for the payment of an agreed sum. (See infra § 221.)
"The undetermined boundary-line between the old province of Louisiana and the British American possessions, the provisions concerning which defeated Rufus King's treaty of 1803, presented itself again after the peace of 1814. It was settled, temporarily, in the treaty of 1818, by agreeing that the 49th parallel should be the boundary from the Lake of the Woods to the Rocky Mountains, and that the territory west of the Rocky Mountains should be occupied jointly for the term of ten years. Fort George, on the Columbia River, which had been withheld from the United States, in admitted violation of the provisions of the treaty of Ghent, was only then formally restored to them.
"Negotiations were opened at London in 1823, on the motion of the United States, for settling this boundary, but they came to a close without any treaty or other engagement having been concluded.' The British plenipotentiaries proposed the 49th parallel to the point where it strikes the northernmost branch of the Columbia and thence down along the middle of the Columbia to the Pacific Rush, on his own motion, refused this, and proposed the 49th parallel to the Pacific. The British plenipotentiaries rejected this and made no new proposal in return."
Mr. J. C. B. Davis, Notes, &c.
"In 1826 negotiations were resumed on the suggestions of the British Government. Canning inquired of Rufus King, then minister at London, whether he was provided with instructions for their resumption. King, who was about leaving London, answered that he had been awaiting special instructions, and transmitted the correspondence to Washington. Clay, then Secretary of State, instructed Gallatin, King's successor, that the President could not consent that the boundary should be south of 490. Gallatin attempted to conclude a convention on that basis, but the attempt proved fruitless, and the negotiations terminated August 6, 1827, by an indefinite extension of the joint occupation, subject to its termination on twelve months' notice by either party.
"This state of things was ended by the passage of a resolution in Congress, April 27, 1846, authorizing the President, at his discretion, to give to the Government of Great Britain the notice required for the abrogation of the convention.'
"On the 15th of the following June a treaty was concluded at Washington, in which it was provided that the 49th parallel should be the boundary, to the middle of the channel which separates the continent from Vancouver's Island, and thence southerly, through the middle of said channel and of Fuca Straits, to the Pacific Ocean.' The debates in Congress on these subjects will be found in the Globe and appendix for the 1st sess. 29th Cong. The motives and purposes of the United States in making this settlement are set forth in the confidential document already referred to, submitted to the Senate with the treaty of 1871. They were so far to depart from the 49th parallel as to leave the whole of Quadra and Vancouver's Island to England.' What the British ministry intended was stated by Sir Robert Peel in the House of Commons on the 26th of June, 1846. That which we proposed is the continuation of the 49th parallel of latitude till it strikes the Straits of Fuca; that that parallel should not be continued as a boundary across Vancouver's Island, thus depriving us of a part of Vancouver's Island, but that the middle of the channel shall be the future boundary, thus leaving us in possession of the whole of Vancouver's Island.' It is diffi cult to see the difference between these two propositions. Lord Palmerston, however, laid claim to run the boundary through the Rosario Straits, and to embrace within British sovereignty an archipelago of islands, instead of Vancouver's Island only. The question remained open until it was settled by a provision in the treaty of 1871, referring it to the Emperor of Germany to decide whether the Rosario Straits or the Canal de Haro was the channel through the middle of which the line should be run according to the true interpretation of the treaty of 1846. The decision was in favor of the Haro Channel and of the claims of the United States.
"In the year 1827 the commercial convention of 1815, which had been renewed and extended in 1818, was again renewed. The United States struggled for more liberal agreements and for a more liberal interpretation of the existing agreement, but could secure neither.
"Ineffectual efforts were also made on both sides for the conclusion of a treaty for the suppression of the African slave-trade. The constitutional assent of the Senate could not be obtained to a provision authorizing a search of American vessels off the coasts of the United States. No treaty arrangement was come to on this subject until the treaty of 1842, negotiated by Mr. Webster and Lord Ashburton, which has already been referred to in connection with the northeastern and northern boundaries, and in the introductory note in connection with extradition. The United States has also made like ineffectual efforts to secure a treaty for the mutual surrender of fugitive slaves. The debates in Congress on the treaty of 1842 have already been referred to; the correspondence connected with it will be found in House Ex. Doc. 2, 27th Cong., 3d sess.
"In that treaty with Great Britain (of 1815) it was for the first time agreed that no higher or other duties or charges should be imposed in any of the ports of the United States on vessels of another power than those payable in the same ports by vessels of the United States; that the same duties should be paid on the importation into the United States of any articles the growth, produce, or manufacture of a foreign power, whether such importation should be made in vessels of the United States or in vessels of that power, and that in all cases where drawbacks were or might be allowed upon the re-exportation of any goods the growth, produce, or manufacture of either country respectively, the amount of the drawback should be the same, whether the goods should have been imported in American vessels or in vessels of the foreign power. How frequently these principles have since been recognized in treaties of the United States, an examination of the index following these notes will show."
Several reports of Secretaries as to present British armaments on the lakes, in connection with the treaty of 1817 as to such force, is in House Ex. Doc. 163, 26th Cong., 1st sess.
The negotiations prior to the convention signed at London October 20, 1818, as submitted to the Senate December 29, 1818, are in Senate Doc. 306, 2d Cong., 2d sess.; 4 Am. St. Pap. (For. Rel.), 348.
In the Brit. and For. St. Pap. for 1818-'19 (vol. 6, 69 ff.) will be found the proceedings of the commissioners by whom the treaty of 1818 was negotiated.
The correspondence in 1822-23 between the United States and Great Britain as to the territory west of the Rocky Mountains will be found in House Doc. 199, 20th Cong., 1st sess.
President J. Q. Adams's message of May 19, 1828, containing the convention with Great Britain of August 6 and September 29, 1827, ratified April 2, 1828, is in House Doc. 492, 20th Cong., 1st sess.; 6 Am. St. Pap. (For. Rel.), 999.
By article 3 of the convention with Great Britain of 1818 it was agreed that the Oregon Territory should" be free and open to the ves sels, citizens, and subjects of the two powers, which convention was continued in force until the convention of 1846. It has been held that
during the period of such joint occupation, the country, as to British subjects therein, was British soil, and subject to the jurisdiction of the King of Great Britain; but, as to the citizens of the United States, it was American soil, and subject to the jurisdiction of the United States; and that a child born in such Territory in 1823 of British subjects, was born in the allegiance of the King of Great Britain, and not in that of the United States.
McKay v. Campbell, 2 Sawyer, 118. See as to this case infra, §§ 183, 191.
(ƒ) ASHBURTON TREATY (1842).
A review and analysis of the correspondence between Mr. Webster and General Cass in reference to the Ashburton treaty, is given in 2 Curtis's Life of Webster, 181 ff. The portions of Mr. Webster's letters in this discussion which relate to the right of search and impressment are given infra, §§ 327, 331 ff.; those relating to the Caroline and McLeod cases, supra, §§ 21, 50a ff. The correspondence relative to the northeastern boundary is here omitted, as it in the main involves concrete rulings which are not likely to be taken as precedents. The extradition features of the treaty are discussed infra, §§ 169 ff. The detailed action of the Senate in respect to the treaty does not fall within the range of this work, as it is part of the history of the times and generally accessible as such to students in this country.
Mr. Webster's correspondence on the subject is in 2 Webster's Works, 540, 586; 5 ibid, 98; 6 ibid, 271, 273, 295, 326, 328. His speech in defense of the treaty is given in full, in 5 Webster's Works, 78 ff.
The correspondence with Great Britain in 1836, relative to the northeastern boundary of the United States, is in the Brit. and For. St. Pap. for 1833-34, vol. 22, 770; 1835-236, vol. 24, 1166; 836-237, vol. 25, 901.
"There is a very general feeling of satisfaction at the termination of the boundary dispute with the Americans, and it will be impossible for Palmerston, who is ready to find fault with everything the foreign office does, to carry public opinion with him in attacking this settlement. He showed his disposition in a conversation he had lately with M. de Bacourt (just come over from America), to whom he said that we had made very important concessions. But Charles Buller, who was with me when M. de Bacourt told me this, said he for one would defend Lord Ashburton's treaty, let Palmerston say what he would. He never would quarrel with any tolerable arrangement of such a question as that. I heard yesterday a curious thing relating to this matter. Lemon, of the state paper office, called on me, and told me that abou' three months ago they were employed by the foreign office in searching for documents relating to the original discussions on the boundary question. There was a great deal of correspondence, much of which was copied for the use of Government. While thus occupied, he recollected that there was an old map of North America, which had been lying neglected and tossed about the office for the last twenty-five years, and he determined to examine this map. He did so, and discovered a faint red line drawn all across certain parts of it, together with several pencil lines drawn in parallels to the red line above and below it. It immediately occurred to him that this was the original map supposed to be lost (for it never
could be found), which was used for marking and settling the boundary question, and he gave notice to the foreign office of what he had dis covered. The map was immediately sent for and examined by the Cabinet, who deemed it of such importance that they ordered it to be instantly locked up, and that nobody should have access to it. First, however, they sent for the most eminent and experienced men in this line of business, Arrowsmith and two others, and desired them to examine closely this map and report their opinions, separately and without concert, upon certain questions which were submitted to them. These related principally to the antiquity of the red and pencil lines, and whether the latter had been made before or after the former. They all agreed as to the age of the lines, and they proved that the pencil marks had been made subsequently to the red line. I forget the other particulars, but so much importance was attached to the discovery of this map, which was without doubt the original, that an exact account of its lines and marks was made out for Lord Ashburton, and a messenger dispatched to Portsmouth with orders to lay his hands on the first Government steamer he could find, no matter what her destination or purpose, and to go off to America forthwith. As soon afterward as possible the boundary question was settled, and it is certainly reasonable to suppose that this discovery had an important effect upon the decision."
Greville's Memoirs, Sept. 11, 1842, vol. 1, 2d ser.
To this passage is appended the following note:
"The treaty signed at Washington on August 9, 1842, by Lord Ashburton and Mr. Webster, settled the disputed question of the northeast boundary between Canada and the State of Maine, and terminated some other differences between Great Britain and the United States. It was denounced by Lord Palmerston as a capitulation,' but generally accepted and applauded by both nations."
"Palmerston complains that our foreign affairs are all mismanaged from first to last, and that we give up everything; universal concession the rule of action, and that there can be no difficulty in settling questions if we yield all that is in dispute. He is particularly dissatisfied with the boundary treaty, in which he says we have been overreached by the Americans; that Lord Ashburton was a very unfit man to send there, having an American bias, besides a want of firmness in his character. He thinks the territorial concessions we have made very objec tionable and quite unnecessary, and that we had already proved our right to the disputed land; that since the King of Holland's award evidence (which was then wanting) has been adduced which clearly establishes our rights. It is evident that he means to fall foul of this arrangement upon the first suitable occasion."
Greville's Memoirs, Sept. 17, 1842, vol. 1, 2d ser.
"On Sunday morning I called on Lord John Russell, and we had an argument about Lord Ashburton and his treaty, which he abused very roundly, saying all that I had before heard of his writing to his brother against it, but still owning that it was not very injurious. I have a great respect for Lord John, who is very honest and clever, but in this matter he talks great nonsense. Palmerston is much more consistent, and takes a clear and broad view of it. He says, 'We are all in the right, and the Americans all in the wrong. Never give up any