“The reasoning of Lord Bathurst’s note seems to confine this perpetuity of obligation to recognitions and acknowledgments of title; and to consider its perpetual nature as resulting from the subject matter of the contract, and not from the engagement of the contractor. Whilst Great Britain leaves the United States unmolested in the enjoyment of all the advantages, rights, and liberties, stipulated in their behalf in the Treaty of 1783, it is immaterial to them whether she founds her conduct upon the mere fact that the United States are in possession of such rights, or whether she is governed by good faith and respect for her own engagements. But if she contests any one of them, it is to her engagements only that the United States can appeal as to the rule for settling the question of right. If this appeal be rejected, it ceases to be a discussion of right, and this observation applies as strongly to the recognition of independence, and to the boundary line, in the Treaty of 1783, as to the fisheries. It is truly observed by Lord Bathurst, that in that treaty the independence of the United States was not granted, but acknowledged. He adds, that it might have been acknowledged without any treaty, and that the acknowledgment, in whatever mode made, would have been irrevocable. But the independence of the United States was precisely the question upon which a previous war between them and Great Britain had been waged. Other nations might acknowledge their independence without a treaty, because they had no right, or claim of right, to contest it: but this acknowledgment, to be binding upon Great Britain, could have been made only by treaty, because it included the dissolution of one social compact between the parties, as well as the formation of another. Peace could exist between the two nations only by the mutual pledge of faith to the new social relations established between them, and hence it was that the stipulations of that treaty were in the nature of perpetual obligation, and not liable to be forfeited by a subsequent war, or by any declaration of the will of either party without the assent of the other.”
Mr. Adams then proceeds to discuss the variation in the employment of the terms right and liberty, considering the former to import an advantage to be enjoyed in a place of common jurisdiction, the latter to refer to the same advantage, incidentally leading to the borders of a special jurisdiction. That the term right was used as applicable to what the United States were to enjoy in virtue of a recognised independence, and the word liberty to what they were to enjoy as concessions strictly dependent on the treaty itself, he declined to admit, as a construction altogether unfounded.
He further contended, that “the restriction at the close of the article was itself a confirmation of the permanency of every part of the article,” for that, “upon the common and equitable rule of construction for treaties, the expression of one restriction implies the exclusion of all others not expressed; and thus the very limitation, which looks forward to the time when the unsettled deserts should become inhabited, to modify the enjoyment of the same liberty, conformably to the change of circumstances, corroborates the conclusion that the whole purport of the compact was permanent and not temporary.”
The documents from which these extracts have been made will well repay a perusal of them in full, both from the importance of the principles which are therein discussed, and from the ability with which the discussion was conducted on both sides. The result of the negotiations was the conclusion of the convention of October 20, 1818, by which the liberty to take and cure fish on certain parts of the British American coasts, so long as they remained unsettled was secured to the citizens of the United States, in common with British subjects “for ever.”
It appears to have been admitted by both parties to this negotiation, that treaties do sometimes contain acknowledgments in the nature of a perpetual obligation: the point at issue between them seems to have been, whether the provisions of a convention could ever be considered as of a mixed character, some of which would be terminable by war, whilst others were irrevocable; and whether the nature of the thing acknowledged determined the character of the provision, or the engagement of a treaty gave permanence to the obligation. It seems to have been implied by the insertion of the words “for ever,” in the first article of the Convention of 1818, that if the permanent character of the thing recognised is not beyond dispute, the words of the convention must be express, in order to give to the engagements of it the nature of a perpetual obligation. On the other hand, both parties admitted that recognitions of territorial title were of perpetual obligation; they differed as to the grounds: the British commissioner deriving the obligation from the nature of the thing recognised, the plenipotentiary of the United States from the fact of its having been recognised by a convention.
CHAPTER XI.
NEGOTIATION BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1818.
Treaty of Ghent, 1814.—Negotiations respecting the Restoration of Fort George.—The United States replaced in Possession of the Post at the Mouth of the Columbia River.—General Negotiations in London, in 1818.—Proposal on the Part of the United States.—Convention of 1818.—No exclusive Claim on either Side.—Western Boundary of the United States by the Treaty of 1783.—Treaty of 1794.—Sources of the Mississippi in 47° 38′.—Convention of 1803, respecting the Boundary, not ratified.—President Jefferson’s Letter.—Cession of Louisiana to the United States.—Convention of 1806.—First Allusion to the Country west of the Rocky Mountains.—Convention not ratified by the United States.—Boundary Line according to the Treaty of Utrecht.—Opinion of Mr. Greenhow.—Anderson’s History of Commerce.—Treaty of Ryswick.—Limits of Canada, as surrendered to Great Britain.—Difficulty of Boundary Treaties from incorrect Maps.—Treaty of 1783.