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our chief magistrate took in a war, waged against us by the nation: among whom he resided, obliged us to discontinue him, and to name one within every State. In the course of this war we were joined by France as an ally, and by Spain and Holland as associates; having a common enemy, each sought that common enemy wherever they could find him. France, on our invitation, landed a large army within our territories, continued it with us two years, and aided us in recovering sundry places from the possession of the enemy. But she did not pretend to keep possession of the places rescued. Spain entered into the remote western part of our territory, dislodged the common enemy from several of the posts they held therein, to the annoyance of Spain; and perhaps thought it necessary to remain in some of them, as the only means of preventing their return. We, in like manner, dislodged them from several posts in the same western territory, to wit: Vincennes, Cahokia, Kaskaskia, &c., rescued the inhabitants, and retained constantly afterwards both them and the territory under our possession and government. At the conclusion of the war, Great Britain, on the 30th of November, 1782, by treaty acknowledged our independence, and our boundary, to wit: the Mississippi to the west, and the completion of the 31st degree, &c. to the south. In her treaty with Spain, concluded seven weeks afterwards, to wit, January 20th, 1783, she ceded to her the two Floridas, which had been defined in the proclamation of 1763, and Minorca ; and by the eighth article of the treaty, Spain agreed to restore, without compensation, all the territories conquered by her, and not included in the treaty, either under the head of cessions or restitutions, that is to say, all except Minorca and the Floridas. According to this stipulation, Spain was expressly bound to have delivered up the possessions she had taken within the limits of Georgia, to Great Britain, if they were conquests on Great Britain, who was to deliver them over to the United States; or rather, she should have delivered them to the United States themselves, as standing quoad hoc in the place of Great Britain. And she was bound by natural rights to deliver them to the same United States on a much stronger ground, as the real and only proprietors of those places which she had taken possession of in a moment of danger, without having had any cause of war with the United States, to whom they belonged, and without having declared any ; but, on the contrary, conducting herself in other respects as a friend and associate. Vattel, 1. 3, 122.
It is an established principle, that conquest gives only an inchoate treaty of peace, which does not become perfect till confirmed by the treaty of peace, and by a renunciation or abandonment by the former proprietor. Had Great Britain been that former proprietor, she was so far from confirming to Spain the right to the territory of Georgia, invaded by Spain, that she expressly relinquished to the United States any right that might remain in her; and afterwards completed that relinquishment, by procuring and consolidating with it the agreement of Spain herself to restore such territory without compensation. It is still more palpable, that a war existing between two nations, as Spain and Great Britain, could give to neither the right to seize and appropriate the territory of a third, which is even neutral, much less which is an associate in the war, as the United States were with Spain. See, on this subject, Grotius, 1. 3, c. 6, 5 26.
, Pufendorf, 1. 8, c. 17, § 23. Vattel, 1. 3, $ 197, 198.
1 On the conclusion of the general peace, the United States lost no time in requiring from Spain an evacuation of their territory. This has been hitherto delayed by means which we need not explain to that court, but which have been equally contrary to our right and to our consent.
Should Spain pretend, as has been intimated, that there was a secret article of treaty between the United States and Great Britain, agreeing, if at the close of the war the latter should retain the Floridas, that then the southern boundary of Georgia should be the completion of the 32d degree of latitude, the commissioners may safely deny all knowledge of the fact, and refuse conference on any such postulatum. Or, should they find it necessary to enter into any argument on the subject, they will of course do it hypothetically ; and in that way may justly say, on
the part of the United States; suppose that the United States, exhausted by a bloody and expensive war with Great Britain, might have been willing to have purchased peace by relinquishing, under a particular contingency, a small part of their territory, it does not follow that the same United States, recruited and better organized, must relinquish the same territory to Spain without striking a blow. The United States, too, have irrevo
, cably put it out of their power to do it, by a new constitution, which guarantees every State against the invasion of its territory. A disastrous war, indeed, might, by necessity, supersede this stipulation, (as necessity is above all law,) and oblige them to abandon a part of a State ; but nothing short of this can justify or obtain such an abandonment.
The southern limits of Georgia depend chiefly on,
1. The charter of Carolina to the lords proprietors, in 1663, extending southwardly to the river Matheo, now called St. John, supposed in the charter to be in latitude 31, and so west in a direct line as far as the South Sea. See the charter in 4th* Memoires de l'Amerique, 551.
2. On the proclamation of the British King, in 1763, establishing the boundary between Georgia and the two Floridas to begin on the Mississippi, in thirty-one degrees of latitude north of the equator, and running eastwardly to the Appalachicola ; thence, along the said river to the mouth of the Flint; thence, in a direct line, to the source of St. Mary's river, and down the same to the ocean. This proclamation will be found in Postlethwayte voce "British America."
3. On the treaties between the United States and Great Britain, of November 30, 1782, and September 3, 1783, repeating and confirming these ancient boundaries,
There was an intermediate transaction, to wit: a convention concluded at the Pardo, in 1739, whereby it was agreed that Ministers Plenipotentiary should be immediately appointed by Spain and Great Britain for settling the limits of Florida and Carolina. The convention is to be found in the collections of treaties. But the proceedings of the Plenipotentiaries are unknown here. Qu. If it was on that occasion that the southern boundary of Carolina was transferred from the latitude of Matheo or St. John's river further north to the St. Mary's? Or was it the proclamation of 1763, which first removed this boundary? [If the commissioners can procure in Spain a copy of whatever was agreed on in consequence of the convention of the Pardo, it is a desirable State paper here.]
* Mr. Short is desired to purchase this book at Amsterdam, or Paris, as he may not find it at Madrid, and when it shall have answered the purposes of this mission, let it be sent here for the use of the Secretary of State's oflice.
To this demonstration of our rights may be added the explicit declaration of the court of Spain, that she would accede to them. This took place in conversations and correspondence thereon between Mr. Jay, Minister Plenipotentiary for the United States at the court at Madrid, the Marquis de La Fayette, and the Count de Florida Blanca. Monsieur de La Fayette, in his letter of February 19, 1783, to the Count de Florida Blanca, states the result of their conversations on limits in these words: 6 With respect to limits, his Catholic Majesty has adopted those that are determined by the preliminaries of the 30th of November, between the United States and the court of London.” The Count de Florida Blanca, in his answer of February 22d, to M. de La Fayette, says, " although it is his Majesty's intention to abide for the present by the limits established by the treaty of the 30th of November, 1782, between the English and the Americans, the King intends to inform himself particularly whether it can be in any ways inconvenient or prejudicial to settle that affair amicably with the United States ;” and M. de La Fayette, in his letter of the same day to Mr. Jay, wherein he had inserted the preceding, says, "on receiving the answer of the Count de Florida Blanca, (to wit: his answer, before mentioned, to M. de La Fayette,) I desired an explanation respecting the addition that relates to the limits. I was answered, that it was a fixed principle to abide by the limits established by the treaty between the English and the Americans; that his remark related only to mere unimportant details, which he wished to receive from the Spanish command
ants, which would be amicably regulated, and would by no means oppose the general principle. I asked him, before the Ambassador of France, [M. de Montmorin,] whether he would give me his word of honor for it; he assured me he would, and that I might engage it to the United States.” See the report sent herewith.
II.—The navigation of the Mississippi.
Our right to navigate that river, from its source to where our southern boundary strikes it, is not questioned. It is from that point downwards, only, that the exclusive navigation is claimed by Spain; that is to say, where she holds the country on both sides, to wit: Louisiana on the west, and Florida on the east.
Our right to participate in the navigation of that part of the river, also, is to be considered, under
1. The Treaty of Paris of 1763,
1. The war of 1755—1763, was carried on jointly by Great Britain and the thirteen colonies, now the United States of America, against France and Spain. At the peace which was negotiated by our common magistrate, a right was secured to the subjects of Great Britain the common designation of all those under his government) to navigate the Mississippi in its whole breadth and length, from its source to the sea, and expressly that part which is between the island of New Orleans and the right bank of the river, as well as the passage both in and out of its mouth; and that the vessels should not be stopped, visited, or subjected to the payment of any duty whatsoever. These are the words of the treaty, article VII. Florida was at the same time ceded by Spain, and its extent westwardly was fixed to the lakes Pontchartrain and Maurepas, and the river Mississippi ; and Spain received soon after from France a cession of the island of New Orleans, and all the country she held westward of the Mississippi, subject of course to our right of navigating between that country and the island previously granted to us by France. This right was not parcelled out to us in severalty, that is to say, to