The Defence No. XIII1
[New York, September 5, 1795]
The 4th and 5th articles of the Treaty from similarity of object will naturally be considered together.2 The fourth, reciting a doubt “whether the River Mississippi extends so far Northward as to be intersected by a line to be drawn due West from the Lake of the Woods in the manner mentioned in 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 one 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 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 USstates with the advice & 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 two 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 particularising 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 map3 was sufficient to settle.4
With regard to the Mississippi there is no satisfactory evidence that it ever has been explored to its source. It is even asserted, that it has never been ascended beyond the 45 degree of North latitude, about a degree above the falls of St. Anthony. Faden’s Map of 17935 will serve as a specimen of the great uncertainty which attends the 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 a third with the Red Lake in the 47th degree6 —denominating each of the two first “The Mississippi by conjecture” and the last “Red Lake River or Lahontans Mississippi”7 —all of them falling considerably short in their Northern extent of the Lake of the Woods, which is placed as high as the [fiftieth]8 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 & 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 one was necessary. This could only be done by an actual survey. A survey is therefore provided for and will be made at the joint expence 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 is most conformable with 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 knowlege of circumstances. It ought to be clearly understood how much is retained—how much 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 stigmatised 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 Missi [ssi] ppi. 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 indentified 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 afterwards renewed between the Colonies of Nova Scotia & Massachusettes 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 defining it.9 Hence it has happened, that not long after the peace was concluded, the question which had before been agitated between France and Great Britain and between the provinces of Massachusettes & Nova Scotia was revived between the State of Massachusettes & 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 17810 and powers were given to our then Minister at the Court of London11 to adjust the affair, but nothing was concluded.12 And We learn from a letter of Mr. Jefferson to Mr. Hammond dated the 15 of December 179113 that it then 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 been before the subject of application from the U 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 colourable 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 precedents among nations, though it were to be wished for the credit of human moderation that they were more frequent.
Is there any good objection to the mode of the arbitration? It seems impossible that any one more fair or convenient could have been devised, and it is recommended by its analogy to what is common among individuals.14
What the mode is has been already detailed and need not be repeated here. It is objected, that two much has been left to chance; but no substitute has been offered which would have been attended with less casualty. 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 found 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 adviseable 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 successful employment of undue influence? Is it not evident that this expedient would have added to equal uncertainty as to character and disposition, other casualties 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 ever to come to an agreement and then the whole plan of settlement might 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 rightfully 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 a 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 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 intitles 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 the 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 tract 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 Treaty demands an acquiescence in their claim. If the parties are not able to agree in opinion concerning the point it is most equitable & most consident with good faith to submit it to the decision of impartial judges.
It has been asked among other things whether the U States were competent to the adjustment of the matter, without the special consent of the State of Massachusettes. Reserving a more particular solution of this question to a separate discussion of the constitutionality of the Treaty15 —I shall content myself with remarking here that our Treaty of peace with Great Britain by settling the boundaries of the U States without the special consent or authority of any state, assumes the principle that the Government of the U States was of itself competent to the regulation of boundaries 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 Massachusettes has by repeated acts manifested a corresponding sense on the subject.16
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 has 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.17
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, September 5, 1795.
3. This is a reference to John Mitchel’s “Map of the British & French Dominions in North America,” 1775, printed in Moore, International Adjudications description begins John Bassett Moore, ed., International Adjudications; Ancient and Modern, History and Documents, Together with Mediatorial Reports, Advisory Opinions, and the Decisions of Domestic Commissions, on International Claims (New York, 1920–1936). description ends , I, facing page 1. For a discussion of the St. Croix River boundary dispute, see A. L. Burt, The United States, Great Britain, and British North America. From the Revolution to the Establishment of Peace After the War of 1812 (New Haven, 1940), 71–81. See also “Conversation with George Beckwith,” October 15–20, 1790, note 6; “Conversation with George Hammond,” January 1–8, 1792, note 7. For the confusion in the spelling of Mitchel’s name, see Moore, International Adjudications description begins John Bassett Moore, ed., International Adjudications; Ancient and Modern, History and Documents, Together with Mediatorial Reports, Advisory Opinions, and the Decisions of Domestic Commissions, on International Claims (New York, 1920–1936). description ends , I, 6–7, and Burt, The United States, 71–73.
4. This may be a reference to the following statement by “Caius” in his “Address to the President of the United States,” July 21, 1795: “The 4th article contains a fruitful source for future war, because it puts the uncertainty it states upon a worse ground than it stood before; it being a well known historical fact, that by a similar omission in the treaty of Utrecht, in not providing a mode for ascertaining definitively the boundary line between the French and British possessions in America, the famous seven years war was produced between those two nations, which terminated in the Peace of Paris, and a total relinquishment of all the possessions of France in America to the English” (Mathew Carey, ed., The American Remembrancer; or An Impartial Collection of Essays, Resolves, Speeches, &c., Relative or Having Affinity to the Treaty with Great Britain, 3 Vols. [Philadelphia: Printed by Henry Tuckniss, for Mathew Carey, No. 118 Market-Street, 1795–1796], I, 109).
5. This map is entitled “The United States of North America with the British Territories and Those of Spain, according to the Treaty of 1784. Engraved by Wm. Faden. 1793” (copy, New York Public Library). Faden was an English geographer.
6. “Marshy Lake” is perhaps Marsh Lake, a small widening of the Minnesota River between Big Stone Lake and Lac Qui Parle, near the 45th parallel. The Minnesota is a tributary of the Mississippi. White Bear Lake, to the northeast of Minneapolis at 45.06° of latitude, is near the St. Croix River, which joins the Mississippi below St. Anthony’s Falls. Red Lake is in northern Minnesota and is roughly bisected by the 48th parallel. This lake has no connection by water with the Mississippi. It is, however, connected by Red Lake River with Red River, which flows northward from a source which was at one time believed also to be the source of the Mississippi.
7. Several western tributaries of the Mississippi, including the Minnesota, have been identified with the apparently fictitious “Long River” which Louis-Armand de Lom de l’Arce, Baron de Lahontan, claimed to have ascended in 1688. For Lahontan’s account of his journey, see New Voyages to North-America, 2 Vols. (London: Printed for H. Bonwicke, 1703).
8. Space left blank in MS. The bracketed word has been taken from the newspaper.
9. Article 2 of the definitive treaty of peace between the United States and Great Britain stated that the northern boundary of the United States began its western course “From the North West Angle of Nova Scotia, viz. That Angle which is formed by a Line drawn due North from the Source of Saint Croix River to the Highlands.…” It defined the eastern boundary of the United States “… by a Line to be drawn along the Middle of the River St Croix, from its Mouth in the Bay of Fundy to its Source; and from its Source directly North …” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 152–53).
10. H wrote “1784” and then crossed out the last digit. In the newspaper the figure reads “1785.”
12. See “Report of the Secretary for Foreign Affairs, respecting the Eastern Boundary,” April 21, 1785 (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington 1832–1861). description ends , Foreign Relations, I, 94).
13. This letter is printed in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington 1832–1861). description ends , Foreign Relations, I, 190.
14. At this point in the draft H wrote and crossed out: “The U States choose one Referree Great Britain another and these two choose a third if they can agree upon a person—if they cannot agree, each is to name one and it is to be determined by lot, which of the two named shall be the third Referree.”
16. For the documents relating to this subject, see ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington 1832–1861). description ends , Foreign Relations, I, 90–100.
17. H wrote and crossed out the following concluding paragraph: “A practical consideration on each side for referring the point to arbitration was to prevent the complaints more or less extensive which could hardly have failed to be produced against the Government of whichever party had acceded to the pretensions of the other.”