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British and American diplomacy affecting Canada. 1782-1899. A charter of Canadian history. With maps Hodgins, Thomas, 1828-1910 1900

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'' Thou who didst build up this Brittannick Empire to a glorious and enviable
heighth, with all her Daughter Lands about her, stay us in this felicitie."—John
H This will sometime hence be a vast Empire, the seat of power and learning.
Nature has refused it nothing; and there will grow a people out of our little spot,
England, that will fill this vast space."—General Wolfe.
"The Rowsell-Hutchison Press."
THE substance of the earlier pages of this little work
appeared as an Article on " Canada's Loss by the Treaty
of Independence," with incidental references to some later
Treaties, in an English Review in 1898, a few months before
the Joint High Commission assembled in Quebec to adjust the
International differences respecting the Fisheries, Trade-Reciprocity, and other matters, between Canada and the United
The assumed, but it is to be hoped temporary, failure of
the long continued negotiations of the Joint High Commission,
has suggested that fuller details of the diplomatic and international incidents, and of the legislative and political acts which
have, from time to time, indicated certain lines of policy on
the part of the United States affecting the many boundary
.and fishery disputes, commercial intercourse, and carrying-
trade facilities, between Canada and that country, would be of
practical utility at the present time.
The compilation and systematic arrangement of these
international incidents, and political lines of policy, have
necessitated a more exhaustive investigation of the abundant
materials contained in State Papers, and other public documents ; and have therefore involved very extensive additions
to the original Article, so that the present publication is practically a new work.
In making selections from State Papers, and other standard
authorities, care has been taken to present accurate statements
-of the matters discussed, so as to enable readers to realize how
the British and American Diplomacy of past years has affected Canada, and her original territory, and also her international
relations, as one of the nation-communities of Greater Britain,,
with her adjoining neighbour of the United States.
The lessons which that Diplomacy furnishes, in the varied
international incidents and lines of policy of former years,
if thoroughly studied and appreciated, will be found instructive
to the fair-minded Statesmen and people of the communities
concerned; and should enable them to realize the far-reaching
responsibilities of future Diplomatic negotiations, involving as
they do the equitable adjustment of the many pending crucial
and disquieting questions affecting the healthful and neighbourly international responsibilities and rights of each nation.
The extracts from the Despatches and Letters noted | MS.'y
are from the originals in the volume of | Oswald Correspondence I in the Public Record Office in London, which—except
in a few instances—have never been published in any State
Papers or Histories.
The accompanying Map shows the territories of the United
States and of Canada, prior to the Treaty of Independence*
This little work is sent forth to assist in the study of the
past international relations of the United States and Canada,
and as a contribution of some materials for a Chapter of
Canadian History.
T. H.
* The Map is copied, by permission, from Dr. Winsor's Narrative and Critical
History of America, v. 7, p. 148. CONTENTS.
Preliminary Negotiations for the Treaty of Independence, 1782..9-18
Opening Negotiations for Peace—American Diplomatic Qualities—
"Downfall of a once Respectable Empire"—Fall of Lord North's
Ministry^-Dr. Franklin and Lord Shelburne correspond—Lord
Shelburne becomes Secretary of State—Sends Mr. Richard Oswald,
I a pacifical man," to negotiate with Dr. Franklin—American comments on Oswald's unfitness—Not a match for Franklin, Jay and
Adams— Separate policies of American Diplomats—Franklin proposes cession of Canada and Nova Scotia to the United States —Dr.
Franklin's | Canada Paper"—Oswald submits it to Lord Shelburne
—But it is not communicated to the King and Cabinet—Lord Shel-
burne's notes on it—Oswald favours the cession of Canada—Cabinet
Minute appointing Oswald to negotiate —Oswald's unfavourable
opinion of the conquest of Canada—His disclosure of Ministerial
confidences to Franklin.
Mr. Richard Oswald's Appointment as Plenipotentiary   18-24
Lord Shelburne becomes Premier—Oswald's Commission as Plenipotentiary drafted by Jay—Canada's territorial extent in 1782—
Britain's autocratic "parental government" of her Colonies—Her
disregard of the precedents of home revolutions—Value of Canada
to the Empire—Franklin's sketch of Canada's brilliant future (1764)
—Opinion of Congress that Canadian Mississippi-Ohio lands were
better than theirs—Oswald again advises cession of Canada—Benjamin Vaughan, a maladroit negotiator, joins Oswald.
Policy of the European Allies of the United States 24-31
France and Spain hostile to the claims of the United States to the
Canadian Mississippi-Ohio territory, and Fisheries—British uaval
successes over France and Spain—Congress instructs its Commissioners to follow French "advice—And modifies its original ultimatum to (1) Independence and (2) Validity of French Treaties—
Canadian Fisheries not in modified ultimatum—Depressing military
and financial outlook in the United States — Diplomatic and
Military influences favourable to Britain—Absence of British
advisory control over Oswald—Jay sends Vaughan to Lord Shelburne to champion American interests—Canada's original boundaries under the Quebec Act, 1774.
Proceedings on the Draft Treaty of Independence 31-44
Jay drafts the Treaty—Agreed to by Oswald, who again pleads for
the cession of Canada—"Back Lands of Canada"—Divided opinions of the Cabinet—Contents of the Draft Treaty—Lord Shelburne
and the Fiench Minister on the Loyalists' claims—Their claims
disregarded by Oswald and Vaughan—Severity of the United
States to Loyalists—Goldwin-Smith's statement—Impending British national disaster—Britain loses thirteen Colonies, and gratuitously
cedes 415,000 square miles of Canadian territory for nine additional
States. The King's plaintive letter—Henry Strachey sent to avert
the British disaster—American criticisms on him—Oswald's and
Vaughan's concessions against him—He gains slight changes —
British Commissioners unaware of modified ultimatum of the United
States—Discussions over the Fishery clauses—Misrepresentation of
the then policy of Congress—Jay's admission—Sarcastic letter of
French Minister to Franklin—Strachey's private letters on American
diplomacy—Its characteristics—Reader's judgment thereon.
Treaty of 1782 a Humiliation to Canada 44-47
Loss of Territory and Fisheries, and uncertain boundaries—Lord
Townsend's opinion—American view—"Bargain struck on the
American basis"—Later "good bargains" of Canadian territory
—Recent disregard of Canadian rights in Alaska—Further American congratulations-—England "endowed the Republic with
gigantic boundaries"—"British sacrifice unparalleled in Diplomacy."
International Relations between the United States and Great
Britain since the Revolution 47-55
Diplomatic correspondence show embittered relations—No consideration for Britain's cruciate difficulties owing to Napoleon's Berlin
decrees—Inconsistent diplomatic policy of the United States—
Mississippi uncertain boundary—Treaty of 1803 settling it rejected
by the Senate—Treaty of 1806 extending neutral coast immunity
unratified—Origin of the War of 1812—British eastern and western
conquests in the United States—Not even a United States sentry in
Canada at the close of the War—Britain, although aware of the
Mississippi and Maine boundary disputes, restores all its conquests
to the United States by the Treaty of Ghent, 1814—Her reward, a
vexatious controversy and an armed invasion—Fishery and other
rights abrogated by the War.
Subsequent Treaties between the United States and Great Britain. 53-6 &
Treaty of 1818 concedes certain fishing privileges to the United States
—Renunciation by the United States of certain fisheries—Irritating
charges against Canada respecting the same—Efforts to settle—
United States Tariff policy the real difficulty—Reciprocity Treaty"
of 1854—United States abrogates it in 1866—Washington Treaty of
1871—One-sided condition against Canada—United States abrogates
its Fishery clauses in 1885—Fenian claims against United States
rejected, 1871—Curt reply to Canada by the Colonial Secretary—
Legislation of Congress injuriously affects Canada's Treaty rights—
Canadian vessels stopped at water-ways—Free passage of united
States vessels through Canadian Canals—Brown-Thornton Treaty
of 1874, rejected by the Senate—Its contents—Chamberlain-Tupper
Treaty of 1888, also rejected—Its contents.
British Diplomatic Policy Generous to the United States   61-65
Treaty of 1818 ceded Canadian territory at Mississippi and Lake of
the Woods to the United States—Ashburton Treaty of 1842 ceded
further Canadian territory—Treaty of 1846 ceded Oregon territory
—Loss of St. Juan Island owing to the restricted terms of reference. Boundary between the United States and Canada drawn on Maps
in 1782    63-6$ |
Oswald's Map—Strachey's Map—"King's Map"—American Plenipotentiaries transmit marked Maps—Adams's and Jay's Evidence
proving boundary lines—All maps with boundary lines in State
Department of the United States disappeared in 1828— Franklin's
marked Map sent to Jefferson in 1790, produced to Senate on Ash-
burton Treaty, has also disappeared—Sparks's discovery of Franklin's "Red Line Map" and letter in Paris Archives in 1842—Both
sustained British claim of boundary—Original Franklin Map of
1782, in French Archives, has also disappeared, and another substituted (note)—Lord Ashburton unacquainted with certain Maps—
Webster's suppression of the Franklin Red Line Map.
Some causes of International Friction between Great Britain and
the United States 69-71
Civil Service of the United States subject to political changes—
Trained qualities of British Civil Service—How Canada's relations
with the United States have suffered—Spurious maps and reports of
surveys in 1839-40—Falsified translations of Russian documents in
1893—Faithless United States official not punished—Contradictory
affidavits in the Behring Sea Arbitration—Threats to Indians giving
evidence to British agent.
Canada's " Baptisms of Blood " by Raiders from the United States .. -  72X"
Invasions of Canadian Territory in 1775-76, 1812-14, and 1837-38—
Fenian Raids 1866, 1870, 1871—United States Government aware
of proposed Fenian invasions of Canada—Never interfered until filibusters had crossed the boundary, and slain Canadians—Few ringleaders arrested and speedily released, and their arms restored.
Discrimination against Canada's Trade with the United States. .. .73-78^
United States Policy of 1806, of 1818, of 1820, of 1887—McKinley
and Dingley Tariffs—Unsuccessful effort against British and Canadian Carrying Trade—Retaliatory policy of 1892 respecting the St.
Mary Canal—No similar retaliatory laws in British or Canadian
legislation—Effect on Canada.
Accountability of the United States to other Nations 78-8$
Political acts tending to degrade another nation—Hostilities of a tactless diplomacy—United States school and history books teach hostility to Britain—Politics there largely controlled by lobbies and
• bosses—Canada's estimate of their spasmodic political impulses—
British indifference and chilling advice to Canada in 1873—Canada's
weapons for supremacy on the farm-battle-fields of nature—Her
responsibility as a nation-community of Greater Britain- Canadian
ideas of friendly relations with the United States—Mr. Secretary
Bayard's views—Britain's intervention in favour of the United
States in the Spanish-American War.
British and Canadian Efforts to Adjust the Alaska Boundary and
other Differences with the United States 83-8$
Canada's continued conciliatory advances—Opening of Diplomatic
Negotiations in 1898—Jeopardized by position taken by the United 8
States on the Alaska boundary dispute—Departure from the Venezuelan precedent—Involves cession of Canadian territory—Bayard's
sentiments forgotten—Russian Treaty of 1825 described Alaska coast
line—Measured from the Pacific Ocean—"Ocean," "Coast" and
"Shore" in International Law—Artificial shore-lines across bays
and rivers—Alaska boundary crosses Canadian rivers and inlets—
Lynn Canal the crux of the boundary dispute—Its measurement
(note)—United States' precedents of 1793, sustain Canada's claim to
the Lynn Canal—Arguments of the United States against Canada's
claim are conflicting.
"Charge that Canada has Tacitly Allowed the Claims of the United
States Respecting the Alaska Boundary  89-100
Historical facts disprove the charge—United States obtained possession
. of Alaska in October, 1867—Canada's urgent and yearly efforts since
March, 1872, before any settlements had been made within the disputed area—Canada's action in 1876—United States in 1892, agreed
to a Treaty to deliminate the Alaska boundary line " in accordance
with the spirit and intent" of the Russian Treaties of 1825 and 1867
—Another Treaty in 1897, to settle the line from Mount St. Elias
—These Treaties are solemn acknowledgments by the United States
of their doubtful title to the territory about the disputed boundary
line—They refute the charge of Canada's tacit acquiescence—And
prove that no rights from settlement had been acquired or claimed
by the United States—United States maps of boundary lines condemned by their State Department—British proposal to accept the
Venezuelan conditions a conciliatory departure from the prior
Treaties of 1892-7—Its non-acceptance justified the British and
Canadian withdrawal from further Negotiations—Further impediments to arbitration by the United States—Special qualities of
American diplomacy (note)—Conditions required by the United
States involved a forced surrender of Canadian territory, and an
abandonment of British subjects —Modus Vivendi of October, 1899,
excludes Canada from Lynn Canal (note)—American umpire declined
—Negotiations on other Treaty matters suspended -British and
Canadian anticipations disappointed—Sir J. A. Macdonald on
British indifference and United States unneighbourly policy to
Canada—Great Britain's modern Imperialism — British Island
Crown's relation to the British Colonial Crowns—Offer of Colonial
Representation in the Imperial Parliament by King George III. in
1778, (note).
_Appendices t... 101-$
No. 1—Articles of the Treaty of  1825 between Great Britain and
Russia, describing the boundaries of Alaska.
No. 2—Provisional   boundary  line   between   Canada   and   Alaska,
October, 1899.
No. 3—Map of Lynn Canal, showing the respective boundary  lines
claimed by Canada and the United States. BRITISH AND AMERICAN DIPLOMACY
THE peace negotiations of 1782, which resulted in
the I Provisional Articles I of that year, and the
| Definitive Treaty " of 1783, acknowledging the Independence of the Thirteen American Colonies, marked
the commencement of diplomatic intercourse between
the United States and Great Britain. According to
the frank avowal of an American apologist, the undertaking was I a difficult errand in diplomacy, especially
under circumstances demanding wariness and adroitness, if not even craft and dissimulation ; " * — a
grotesque grouping of appropriate, with sinister,
•diplomatic qualities which were severally illustrated
in the international drama then placed on the stage of
history. The wariness and adroitness, and perhaps
what might be paraphrased as the sinister strategy, of
-some of the players, the incapacity and blundering
indiscretion of others, and the mournful epilogue
pronounced by the King over | the downfall of a once
respectable Empire/' best explain why only one of
the nations, then forming the audience, applauded the
* John Adams, by John T. Morse, Jr. (American Statesmen Series),
Boston (1890), p. 165.
Peace negotiations between the
United States
and Great
Britain, 1782.
sketch of the
| Downfall of
a respectable
id 10
Fall of Lord
North's Ministry, March,
Correspondence between
Lord Shelburne and
Dr. Franklin.
Lord Shelburne becomes Secretary^ of State.
He sends Mr.
Oswald to negotiate with
Dr. Franklin,
Mr. Oswald's
The disaster to Lord Cornwallis at York town, in
October, 1781, hastened the downfall of the ministry
of Lord North; and in March, 1782, the Rockingham
administration came into power,—the chief policy of
which was the stoppage of the war in America, and
the recognition of the Independence of the Revolted
Colonies, as the United States. Shortly before the
formation of the new Government, Lord Shelburne-
had, through a friend, Lord Cholmondely, intimated
to Dr. Franklin, then diplomatic representative of the
Congress of the United States in Paris, that he would
be pleased to hear from him; whereupon Dr. Franklin*
replied congratulating him on the change of public-
opinion in England towards America, and expressing
the hope that it would tend to produce a general peace.
When Dr. Franklin's letter arrived, Lord Shelburne-
was Secretary of State, and to him must be justly
conceded the credit of initiating the peace negotiations
which resulted in the Treaty of Independence. But-
his negotiations were unfortunately sullied by a-
want of candor.* Without the knowledge of his-
colleagues he despatched a Mr. Richard Oswald to-
Paris with instructions to open informal negotiations-
for peace with the representative of the American
Congress at the French Court.~f*
Mr. Oswald was introduced by Lord Shelburne to*
* This peculiarity in Lord Shelburne's character is referred to ii>
Mr. Lecky's History of England in the 18th Century, v. 4, pp. 210-15.
t Lord Shelburne in a debate on the " Manifesto issued by the-
Commissioners for Quieting the Disorders in the American Colonies "
(1778), had rather rashly stated: "that he never would serve with
any man—be his abilities what they might—who would either maintain it was right, or consent, to acknowledge the Independence of
America."   Parliamentary History, v. 20, p. 40. 11
Dr. Franklin as "a pacifical man,* conversant in those "Apacifical
negotiations which are most interesting to mankind,"
a peculiarity which the Doctor confirmed by describing
him as i a plain and sincere old man, who seems now
to have no desire but that of being useful in doing
good."    He had been a successful Scotch merchant in
the City of London, was at one time an army contractor, and  had acquired,  through  his wife,  large
estates  in the  West  Indies  and America;  and,  on
account of his connection with both countries, had
been occasionally consulted by the Government during
the American war. *f*     But a candid, and therefore
instructive, comment on Mr. Oswald's unfitness has
been furnished by a former eminent American diplomat,
that I Of all the remarkable incidents in this remark- American
able transaction, nothing  now  seems  so difficult to^J^Q^-^f
account for as the mode in which Great Britain pur- unfitness.
sued  her  objects   by  negotiation.      The  individual
pitched upon to deal with the United States was a
respectable and amiable private gentleman, nominated
at the suggestion of Dr. Franklin, with whom he was
to treat, because he thought he would get along easily
with him; but by no means a match for a combination
of three such men as Franklin, Jay and John Adams." J
* Lord Edmond Fitzmaurice in his Life of Lord Shelburne, uses
the expression "practical man" (v. 3, p. 177); but all other
authorities use the expression given above. See Life of Franklin,
Written by Himself, v. 3, p. 69 ; Sparks's Life of Franklin, v. 9,
p. 241; Life of John Adams, by J. Q. Adams and C. F. Adams,
v. 2, p. 13; Wharton's Revolutionary Diplomatic Correspondence of
the United States, v. 5, p. 536.
+ Life of Lord Shelburne, v. 3, p. 175.
X Life of John Adams, v. 2, p. 32. 12
Unfit representatives has
been Great
United and
policies of
The representatives of the American Congress were
Dr. Franklin, then Minister to France; John Adams,
Minister at the Hague, formerly Commissioner to
France, and Chief Justice of Massachusetts; John Jay,
Minister to Spain, ex-President of Congress, and then
Chief Justice of New York; Henry Laurens, Minister
to Holland, formerly President of Congress, and who
had just been exchanged for Lord Cornwallis.
To be on equal terms with such astute and experienced politicians the same writer has added: " Great
Britain had need of the best capacity and diplomatic
experience within her borders. But it was her fortune,
during all this period,—and indeed almost to the present
day,—to insist upon under-rating the people with whom
she had to deal, because they had been her dependents;
a mistake which has been productive of more unfortunate consequences to herself than an age of repentance
can repair."
The American representatives, though differing on
some details of the proposed Treaty of Peace, were
united in policy to secure the independence of the
American Colonies, and to repudiate all national
responsibility for the action of the several States in
confiscating the property of the Loyalist British-
American subjects. Each of them had, in addition,
a special interest to further in the Treaty. Dr.
Franklin's was the cession of Canada and Nova Scotia
to the United States. Mr. Jay's was the extension of
their boundaries through the Indian and Canadian
territories westward over the Alleghany Mountains to
the Mississippi River. Mr. Adams championed the
New Englanders' claim to the Canadian fisheries,
which they pressed with.extreme anxiety; and they 13
relied on him to secure the fisheries for them, if it
were a human possibility to do so. *
Mr. Oswald arrived in Paris about the middle of
April, 1782; and, after communicating Lord Shel-
burne's desire for peace to Dr. Franklin, and ascertaining his views, the Doctor gave him a confidential paper
of I Notes for mere conversation matter between Mr.
Oswald and Mr. Franklin," which contained what, by
others, would have been considered a startling proposition—that Great Britain should | voluntarily cede j
the whole of Canada and Nova Scotia to the United
States.*!* On his return to London, Mr. Oswald reported
to Lord Shelburne the result of his mission, and handed
to him the confidential notes, afterwards known in the
negotiations as the | Canada paper." J
Lord Shelburne appears to have given only a partial
outline of Mr. Oswald's report to his colleagues in the
Cabinet; and he withheld from them all knowledge of
the I Canada paper." The excuse offered for him was,
that I there was nothing in the contents of the paper, or
in the manner in which it came into his hands, which
rendered it incumbent on him to communicate it to
* Though a claim to the Newfoundland, as well as the Canadian,
fisheries was made by the American Commissioners, the negotiations
for the cession of Canada and Nova Scotia, did not include the
cession of the Island of Newfoundland.
t Sparks's Life and Writings of Franklin, v. 9, p. 250.
J An American biographer of Dr. Franklin says: "Mr. Oswald,
with most undiplomatic readiness, declared that, in his opinion,
nothing could be clearer, or more satisfactory and convincing, than
the reasoning in that paper. He said he would do his utmost to
bring Lord Shelburne to the same view." Parton's Life of Franklin|
v. 2, p. 461.
Mr. Oswald
meets Dr.
who proposes-
cession of
Canada and
Nova  Scotia,
Lord Shel-
burne's partial report to-
the Ministry- 14
First knowledge of the
" Canada
"Lord Shel-
burne's reti-
-cence indefen
♦Contents of
the "Canada
his colleagues; and he thought best not to send any
formal answer to it." *
It was from a casual remark of Mr. Oswald, in
June, that the existence of the " Canada paper " became
known to Mr. Grenville, then representative of the
Foreign Office at Paris, who at once reported the
matter to Mr. Fox, the Secretary for Foreign Affairs.
In his reply, dated 10th June, Mr. Fox said, " The
paper relative to Canada I never heard of till I
received your letter; and it may be said that Lord
Shelburne has withheld from our knowledge matters
of importance to the negotiations." *f*
The reticence of Lord Shelburne in not disclosing to
the Crown, or his colleagues, the secret and confidential
proposition for the cession of Canada and Nova Scotia,
cannot be defended.J In the opinion of Lord John
Russell, " it is impossible to justify Lord Shelburne for
His favourable reception of so important a paper as
the one he had received from Franklin about Canada,
without communicating the substance of it at least to
his colleagues." § The " Canada paper " also dealt with
the question of reparation for the towns and villages
which had been burnt by the British and their Indian
allies, and gave several arguments why Canada and
Nova Scotia should be ceded to the United States,
closing  with the   very tempting  inducements that
* Life of Lord Shelburne, v. 3, p. 183.
+ Life of Charles James Fox, by Lord John Russell, v. 1, p. 313.
X Lord Shelburne subsequently declared in the House of Lords
that " The great advantage of Monarchy in the British Constitution
was that it trusted to the Crown the secrets which must necessarily
attend all negotiations with Foreign Powers." Parliamentary History, v. 23, p. 309.
§ Memorials of Fox, v. 1, p. 384. 15
Great Britain should " in all times coming have and
enjoy the right of Free Trade thither, unincumbered
with any duties whatever; and that so much of the
vacant lands there, shall be sold as will raise a sum
sufficient to pay for the houses burnt by the British
troops and their Indian allies, and also to indemnify
the Royalists for the confiscation of their estates." *
Lord   Shelburne's  views  respecting the   " Canada Lord Shel-
paper 1 appear in his | Memorandum for Mr. Oswald in on fcne « Qan.
conversation," in which he thus outlined the ministerial adapaper."
policy respecting Canada:
" The private paper desires Canada for three reasons:
" 1st. By way of reparation. Answer : No reparation can be heard of.
" 2nd. To prevent future wars. Answer: It is hoped
that some more friendly method will be found.
" 3rd. Loyalists, as a fund of indemnification to
them. Answer : No independence to be acknowledged
without their being taken care of. Penobscot to be
always kept." f
None of these details of the policy above indicated Policy not
was communicated to the Cabinet, or submitted for the cate(j to Kjng
sanction of the Crown; and it is even doubtful whether or Cabinet,
this memorandum respecting the | Canada paper," was
more than mere notes for conversation, or that the
policy indicated was ever communicated to Mr. Oswald ;
for Sir G. C. Lewis says: " The probability is that
Lord Shelburne made no remark upon it (the Canada
paper) to Oswald, fearing that it might offend Frank-
* Sparks's Franklin9 v. 9, p. 252.
+ Lewis's Administrations of Great Britain, p. 47; Life of Lord
Shelburne, v. 3, p. 188.    Penobscot was subsequently ceded. 16
Dr. Franklin's
comment on
Mr. Oswald's
Cession of
Canada and
Nova Scotia
Cabinet minute appointing Mr.
Oswald to
negotiate a
lin; and that Oswald construed his silence into appro-
bation." *
This view appears to be sustained by the entry in
Dr. Franklin's diary that, on his return to Paris in
May, " Mr. Oswald reported to me his opinion that the
affair of Canada would be settled to our satisfaction,
and that it was his wish that it might not be men-
tioned till towards the end of the Treaty." *f* Lord
Edmond Fitzmaurice confirms this by saying that when
Mr. Oswald returned the Canada paper to Dr. Franklin, I he expressed his own personal conviction that it
had made an impression; and that if the matter were
not given undue prominence during the early stages of
the negotiation, a settlement satisfactory to America
might still be ultimately arrived at in regard to the
cession of Canada and Nova Scotia." J
Acting on such partial report of Mr. Oswald's-
mission as Lord Shelburne made to his colleagues, the
Cabinet, on the 23rd April, 1782, agreed to the following Minute: " It is humbly submitted to His Majesty
that Mr. Oswald shall return to Paris, with authority
to name Paris as the place, and to settle with Dr..
Franklin the most convenient time for setting on foot
a negotiation for a general peace ; and to represent to-
him that the principal points in contemplation are the-
allowance of Independence to America, upon Great
Britain's being restored to the situation she was placed
in by the Treaty of 1763; and that Mr. Fox shall submit to the consideration of the King a proper person
to make a similar communication to M. de Vergennes." §•
* Lewis's Administrations of Great Britain, p, 48.
+ Sparks's Franklin, v. 9, p. 269.
X Life oj Lord Shelburne, v. 3, p. 191.
§ Memorials of Fox, v. 1, p. 345. 17
This reference to the Treaty of 1763, and again in a
later Minute, dated 18th May, 1782, would lead to the
inference that Canada was to be retained; for its
cession by France to Great Britain, and the delimina-
tion of its boundaries along the Mississippi, had been
settled by that Treaty ; * and rendered it all the more
incumbent upon Lord Shelburne to disclose to his
colleagues Dr. Franklin's secret and confidential proposition for the cession of Canada.
Mr. Oswald was shorn of the Samson locks of his
diplomatic strength when he confided to Dr. Franklin
his personal opinion that the conquest of Canada by
Great Britain, had an injurious effect on the relations
of the American Colonies to the Empire,—an opinion
not shared by Dr. Franklin, as "will presently appear.
And when Dr. Franklin hinted that " England should
make us a voluntary offer of Canada," he found that
" Mr. Oswald much liked the idea, and promised that
he should endeavour to persuade their doing it;"*f*
which he fulfilled in the following report to Lord
Shelburne : " The Doctor touched upon Canada, as he
generally does on like occasions, and said there could
be no dependence on peace and good neighbourhood
while that country continued under a different government, as it touched their States on so great a stretch
Treaty with*
France, of
1763, described
Mr. Oswald's
opinion that
the conquest
of Canada was'
injurious to
the Empire.
He favours
Dr. Franklin's-
idea of the
cession of
* In the negotiations for this Treaty it was admitted that the
Alleghanies (Appalachies) formed the western boundary of the
then American Colonies; but the French contended that the valley of the Mississippi belonged to Louisiana, and formed no part
of the territory of Canada, which France had agreed to cede. Great
Britain maintained the contrary, and after nearly three years disputation, the French gave way, and Canada was ultimately ceded to
Great Britain with the Mississippi River as its western boundary.
+ Sparks's Franklin, v. 9, p. 254. 18
Mr. Oswald
discloses confidential
opinions of
Lord Shelburne becomes
Mr. Fox
And Mr.
drafted by
Mr. Jay.
of frontier. I told him I was sensible of that inconvenience ; but having no orders, the consideration of
that matter might possibly be taken up at some future
time." *
Lord Shelburne's biographer relates how Mr. Oswald
also indiscreetly disclosed to the American plenipotentiary the confidential and personal opinions of certain
members of the Cabinet: " Oswald told Franklin that
personally he agreed with him; and he also mentioned
that he had not concealed his opinion when in England,
but had urged the cession of Canada during an inter-
view with Rockingham, Shelburne and Fox. The two
former, he said, spoke reservedly on the point, but in
his opinion did not seem very averse to it. Fox, however, seemed startled at the proposition."-f* This statement is confirmed by an entry in Dr. Franklin's diary.
The death of Lord Rockingham, and the succession
of Lord Shelburne to the Premiership, led to the resignation of Mr. Fox, which was followed by the withdrawal of Mr. Grenville from Paris ; and enabled Lord
Shelburne to comply with Dr. Franklin's urgent request
that Mr. Oswald should be sent to treat. Accordingly,
Lord Shelburne's " pacifical man " became the British
plenipotentiary under a Commission, drafted for the
British Ministry by Mr. Jay, "in his own handwriting "t authorizing him to treat with the " Commis-
* MS. Despatch, Oswald to the Foreign Secretary, Paris, 11th
August, 1782.
t Life of Lord Shelburne, v. 3, p. 206 ; Sparks's Franklin, v. 9, p.
J "It was a singular circumstance that one who had lately been
regarded as a rebel-subject of the British Monarch should now prepare a Commission from that Monarch by which his late Colonies
were to be acknowledged free and independent." Life of John Jay,
v. 1, p. 143. 19
sioners of the United States," for the settlement of the
great political and territorial interests which emi- Diplomatic
nently required an experienced and adroit negotiator, J^i^
skilled in judicious and tactful diplomacy ; and one
who had a local knowledge of the territorial localities
of Colonial America and Canada, equal to that possessed by the American Commissioners.
Canada  at  that  time was one of  Great Britain's Canada in
largest and most important territorial possessions; forBritam'gea
it included not only her present great domain, but also greatest
the Great Lakes and the fertile agricultural territory session,
south of Lakes Erie, Huron, Michigan and Superior,
down to the confluence of the Ohio and Mississippi
rivers, about latitude 37° N.—out of which Canadian,
and  subsequently ceded,  territory,  containing about
280,000 square miles, were formed the modern States
of Ohio, Indiana, Illinois, Michigan, Wisconsin  and
Minnesota*—a territory contemptuously described by Mr. Oswald's
Mr. Oswald in his despatches as the I bach lands o/contemptuous
1 m        | opinion of
Canada'' | a country worth nothing, and of no impor- Canada.
tance;"~f but which, if it had been retained by Great
* To this must be added the south-eastern or 1 Indian territory,"
lying between the Alleghany Mountains, Spanish Florida and the
Ohio River, containing about 135,000 square miles,—which had
formed no part of the old Colonies ;—out of which were subsequently
formed the States of Kentucky, Tennessee and Alabama.
+ Six years prior to Mr. Oswald's despatch, this portion of Canada
Tiad been thus described : " The triangular track of land between
Hhe Mississippi, the Ohio and Lake Erie, is the finest spot of earth
on the globe, swelling with moderate hills, but no mountains;
watered by the finest rivers, and of the most delightful climate;
the soil, as appears from the woods with which it is clothed, is of
the most abundant fruitfulness and vegetation. It abounds with
•coal; and there are multitudes of salt-springs in all parts of it.
There are mines of iron, copper and lead.    Wild rye grows there <"\
Britain, would have  made  her  combined Canadian
possessions in North America over 4,000,000 square
Original        miles, or larger than the territorial area of Russia in
ada equal to   Europe and Asia (excluding Siberia) ; and would have
Russia (ex-    constituted British influence the imperial and dominant
eluding . • L
Siberia).        power on the American continent. *
Great Great Britain was then more intent upon humbling*
polioyas a ^ne European nations which had challenged her
Sea Power, supremacy as a Sea Power, by despoiling them of their
territorial possessions, than in acquiring colonial homes
for her adventurous people, and markets for her manufacturers, which, in our times, constitute her more
beneficent and Imperial policy.    A century ago she
Her old fash- governed her Colonies after an autocratic and old-fashioned paren-   •       Lj'  ■«  '      „xi„         „j."j j.* 2 i_
tal despotism I0ned      parental - government     despotism,—tor   she
over the colo- recognized, and would then learn, no other.    While her
nles s •
army and navy were adding to her Colonial Empire,
her home statesmen, though trustees of the constitutional  rights  and  traditions  of all  the  subjects  of
the Crown, denied those rights and traditions to their
Her disregard Colonial fellow-subjects;  and  forgetting the revolu-
oinerisan   tjonary teachings of former home despotisms, imposed
precedents 01 J r> r »       r
revolutions,   on the American Colonists a despotism which recalled
the island precedents of revolutionary resistence; *f* and
spontaneously." Map of the Middle British Colonies in Nortfr
America, by ex-Governor T. Pownall, M.P., published by J. Almon,
London, 1776.
* The claim of the United States to Canada was gravely asserted
on the ground that: " By the Treaty of Paris of 1763, Article VII., Canada was expressly and irrevocably ceded by France to
the King of Great Britain, and that the United States are, in consequence of the Revolution in their government, entitled to the benefits of that cession."   Secret Journals of Congress, 1780, v. 2, p. 327.
+ " The structure of the British Government was made to rest upon
the people's right of resistance, as upon its corner stone. 21
ultimately caused the loss of an extended and flourishing
Colonial Empire, and a loyal and sympathetic kindred.
The value of Canada to the Empire—won from Value of
France on Canadian battle-grounds—was well-known
to Dr. Franklin, the writer of the | Canada paper," for
he had, the year after its conquest, thus graphically
sketched a brilliant future for it, in the following
letter to Lord Karnes :
" No one can more sincerely reioice than I do on the??r; ^r*?,.   ,
. o m        i . lin s brilliant
reduction of Canada ; and this not merely as I am a sketch of
Colonist, but as I am a Briton. I have long been of^4adain
the opinion that the foundation of the future grandeur
and stability of the British Empire lie in America;
and though, like other foundations, they are low and
little now, they are nevertheless broad and strong
enough to support the greatest political structure that
human wisdom ever yet erected. I am, therefore, by
no means for restoring Canada to France. If we keep
it, all the country from the St. Lawrence to the Mississippi will become vastly more populous by the
immense increase of commerce ; and your naval power,
thence continually increasing, will extend your influence round the globe, and awe the world." *
Such was the prophetic picture of British territorialNow coveted
and commercial supremacy on the North American continent, drawn by the diplomat who now coveted the
whole of the Canadian domain for his nation, and to
We should ever bear in mind how essential to the preservation of
the Constitution this principle of resistance is; an extremity to be
cautiously embraced, but still a remedy within the people's reach ;
a protection to which they can and will resort, as often as their
Rulers make such a recourse necessary for self-defence." Political
Philosophy, by Lord Brougham, v. 3, p. 293.
*Life of Franklin, Written by Himself, v. 1, p. 299. <\
Canada to
the U. S.
whom the British representative had imparted the
encouraging information that, before he left England,
Mr. Oswald's he had advised her Ministers "that in his opinion
Canada should be given up to the United States, as
it would prevent occasions of future differences, and
as the Government of such a country was worth
nothing, and of no importance, and that he was not
without hopes it would be agreed to." *
American Mr. Oswald's unfavourable opinion of Canada was
Conffrcss's • i-s.
opinion of the evidently not concurred in by Dr. Franklin, nor did
value of Cana-jt weaken his efforts to secure its cession.    Nor did it
dian lands.     .
in any way deter Oongress irom pressing tor its acquisition: "Great Britain already possesses Canada and
Nova Scotia; should that immense territory, which
lies upon the rear of these States, from the Gulf of St.
Lawrence to the Gulf of Mexico, be acknowledged to
Better lands  De vested in Great Britain, it will render our situation
than those in truly hazardous. The lands, as you know, are infinitely better than those on the coast; they have an open
communication with the sea by the River St. Lawrence and Mississippi, and with each other by those
extensive inland seas with which America abounds.
They will be settled with the utmost rapidity from
Europe, but more particularly from these States, for
the fertility of their soil will invite numbers to leave
Mr. Vaughan,    About this time another, and perhaps more mala-
Jkoit1 British "droit> negotiator, Mr. Benjamin Vaughan, an intimate
negotiator. —~
* Wharton's Revolutionary Diplomatic Correspondence, v. 5, p. 572.
+ Sparks's Diplomatic Correspondence of the Revolution, v. 3, p.
273. The Articles of the Confederation of the United States, 1778,
provided that "Canada acceding to this Confederation, and joining
in the measures of the United States, shall be admitted into and
entitled to all the advantages of this Union." 23
friend of Dr. Franklin, was despatched by Lord Shelburne " to give private assurances to the latter that
the  chancre  of Administration  brought  with  it no
change of policy." *     Mr. Vaughan appears to have
been a twin neophyte in diplomacy to Mr. Oswald,
for he indiscreetly admitted to Mr. Adams that many
of " the best men in England were for giving up Canada Also favours
and Nova Scotia."*)*   But his peculiar unfitness for even cana(ja ana
a minor public service may be realized from a perusal Nova Scotia.
of the childish pathos he poured out in a letter to Dr.
Franklin, which must have been smilingly read by that
astute diplomatist:
"My Dear Sir:—I am so agitated with the present His pathetic
crisis that I cannot help writing to you, to beseech jiranklin>
you, again and again, to meditate upon some mild
expedient about the Refugees, or to give a favourable
ear and helping hand to such as may turn up. If I
can judge of favourable moments, the present is of all
others most favourable. We have liberal American
Commissioners at Paris, a liberal English Commissioner,
and a liberal First Minister in England. All these cir-
cumstances may vanish to-morrow, if the Treaty blows
over. I pray, then, my dearest, dearest Sir, that you
would a little take this matter to heart. If the Refugees are not silenced, you must be sensible what constant prompters to evil measures you leave us; what
perpetual sources of bad information. Tf the Minister
is able, on the other hand, to hold up his head on this
* Life of Lord Shelburne, v. 3, p. 242.
+ "As to Mr. Vaughan, he seems so willing to be active, and so
void of judgment, that it is fortunate he has no business ; and the
sooner he returns to his family the better." Letter from King George
III. to Lord Shelburne, 22nd December, 1782. 24
one point, you must see how much easier it will be
for you both to carry on the great work of the union,
as far as relates to Prince and people. Besides, you
are the most magnanimous nation, and can excuse
things to your people, which we can less excuse to
ours. To iudgfe which i3 the hardest task, yours or
England's, put yourself in Lord Shelburne's place. The
only marks of confidence shown him at Paris are such
as he dares not name. Excuse this freedom, my
dearest Sir; it is the result of a very warm heart, that
thinks a little property nothing, to much happiness.
I do not, however, ask you to do a dishonourable
thing, but simply to save England, and to give our
English Ministry the means of saying on the 5th
December that we have done more than the last Ministry have done. I hope you will not think this zeal
persecution." *
■ Prior to the arrival of this " agitated '   diplomat in
Spain hostile _^    . ^    _ , .     . ,
to the exten- Paris, the Jd rencn Government had intimated to the
sion of the    American Congress that the influence of France and
U. S. to the °
Mississippi.   Spain was hostile to the extension of the United States
And to the    boundaries through Canadian territory to the Missis-
-fche Canadian S^PP^> an(^ ^° their claims to the Canadian fisheries.
.fisheries.       And M. de Vergennes. the French Foreign Minister,
emphasized this in Paris, by arguing with the American
Commissioners in favour of England, and by declaring
that the demands of the Americans were unreasonable,
and that France would not continue the war for
American objects.*)*    Nor were the English Ministers
France and
* Sparks's Franklin,  v.  9,  p.  433.   The italics are as in the
original letter.
+ Winsor's Narrative and Critical History of America, v. 7, p. 140 ignorant of this decision of the Allied powers.    Mr.
Fitzherbert, the  British  Plenipotentiary  to  France,
was also informed by the French Minister that it was
the ioint policy of France and Spain to shut out tlae Their joint
United States from the Mississippi, the Gulf of St. municatedto
Lawrence, the Great Lakes, and the fisheries; and heGreatBritain'
was  urged to  concur with  France  in a concert  of
measures for that purpose,—because it could only be
accomplished by the approval and aid of Great Britain.*
And M. de Rayneval, who had been sent to London on
a. confidential mission to the   British Ministry, also
expressed to them the | strong opinion " of the French
Government  | against  the  American  claims  to  the
Fisheries, and to the valley of the Mississippi and the
Ohio."    " These opinions," says Lord Shelburne's biographer,  I were  carefully  noted  by  Shelburne  and
Grantham." *f*    That this was the known policy of the Their policy
French Court, is confirmed by the American Commis- American
sioners' Report to Congress, after the Treaty was signed, Commis-
that "as the Articles respecting the boundaries, the
refugees, and fisheries, did not correspond with  the
policy of this (French) Court, we did not communicate
the preliminaries to the Minister until after they were
signed ; and not, even then, the separate article." j
* Ibid, pp. 120 and 122.    Sparks's Franklin, v. 9, p. 386.
+ Life of Lord Shelburne, v. 3, p. 263. M. de Rayneval also wrote
to the American Commissioners: "It is clearly evident that the
•Court of London, when it was as yet Sovereign of the Thirteen Colonies, did not consider the vast territories situated eastward of the
Mississippi, as forming part of these same Colonies." M. de Rayneval
to John Jay, 6th September, 1782; Wharton's Revolutionary
Diplomatic Correspondence, v. 6, p. 25.
X Sparks's Diplomatic Correspondence of the Revolution, v. 10, p.
120. 26
British Naval
victories ruin
the sea power
of France and
instructs its
Commissioners to be
governed by
French advice.
British diplomacy aided
by U. S. modified ultimatum.
During these negotiations, the naval victory of Lord
Rodney over the French fleet under DeGrasse, in the
West Indian waters, in April, 1782, and the successes
of Sir George Elliott and Lord Howe, at Gibraltar, in
September, 1782, had ruined the sea power of France
and Spain, and had given the finishing blow to the
then European war against Great Britain. In America,
Congress, in acknowledgment of the material aid of
France in assisting the United States to a national
existence, had given imperative instructions to the
American Commissioners that in their negotiations
with Great Britain they were " to make the most candid and confidential communications upon all subjects
to the Ministers of our generous ally, the King of
France ; and to undertake nothing in the negotiations-
for peace or truce, without their knowledge and concurrence ; and ultimately to govern yourselves by their
advice and opinion." * And pending the negotiations,.
Congress communicated the following resolution to the
French Plenipotentiary : " That they will hearken to
no propositions which shall not be discussed in confidence, and in concert, with His Most Christian
Majesty." f
The diplomatic position of Lord Shelburne's Government was also materially aided by the modified instructions and ultimatum of the American Congress. In
the earlier sessions, Congress had instructed its Commissioners, that in any negotiations with Great Britain,,
they were to insist upon the grant of Independence,,
the Mississippi boundaries, and the Fisheries, subsequently adding, however, the following modification :
* Secret Journals of Congress, v. 3, p. 138.
t Sparks's Diplomatic Correspondence of the Revolution, v. 10, p. 86. 27
" Although it is of the utmost importance to the
peace and commerce of the United States, that Canada
and Nova Scotia should be ceded, and more particularly
that the equal common right of the United States to
the fisheries should be guaranteed to them, yet a desire
of terminating the war has induced us not to make
the acquisition of these objects an ultimatum on
the present occasion." * The modified instructions ofU. S. de-
June, 1781, informed the Commissioners that Congress limited to
thought it " unsafe at this distance, to tie them up by *y° essen-
. ii       tials.
absolute and peremptory directions upon any other
subject than the two essential articles" which were:
(1) To effectually secure the independency and sove- (l) Indepen-
reignty of the United States: and (2) That the treaties m    ' . H
,&    J . . (2) Validity
with France should be left in their full force and valid- of French
ity; adding: " You are therefore to use your own rea ies*
judgment and prudence in securing the interest of
the United States in such manner as circumstances
may direct, and as the state of the belligerent, and
disposition of the mediating, powers may require."
| But if a difficulty should arise in the course of the
negotiation for peace, from the backwardness of Britain
to make a formal acknowledgment of our Independence, you are at liberty to agree to a truce, or to
make such other concessions as may not affect the
substance of what we contend for, and provided that
Great Britain be not left in possession of any part of
the Thirteen United States." -j"
The subsequent action of Congress respecting the Action of
Fisheries  appeared  in  the   report  of   a   Committee respecting the
recommending " that the best security for obtaining a Fisheries.
* Secret Journals of Congress, v. 2, p. 228.
*T Wharton's Revolutionary Diplomatic Correspondence, v. 4, p. 477. U. S. Commissioners
aware of the
outlook in
the United
U. S. Treasury empty.
right to the Fisheries, short of admitting it into the
ultimatum for Peace, will be a representation to His
Most Christian Majesty (of France) through one of
the Ministers for negotiating the Peace, of its great
importance to the United States, and of the grounds
upon which it is claimed and expected." *
The American Commissioners were, therefore, fullv
aware, before the negotiations commenced with Mr.
Oswald, that Congress had modified and practically
limited its ultimatum to the independence of the
United States, and the validity of the treaties with
France. But not being as simple-minded as Mr.
Oswald or Mr. Vaughan, they did not reciprocate the
blundering indiscretion of these gentlemen, by disclosing to them the secret and confidential action of
Congress respecting the desired treaty with Great
^ At this time the military and financial outlook of
the United States was depressing. General Washington reported to Congress that it was impossible to
recruit the army by voluntary enlistment. Silas
Deane, in private letters, intimated that it would be
impossible to maintain the army another year. The
Secretary of State wrote to Dr. Franklin about their
mortifying financial disappointments, and the " importunate demands for money,"—adding: " The army
demand with importunity their arrears of pay. The
Treasury is empty, and there are no adequate means of
filling it." *f* And again: " Never was there a time
when money was more necessary. The total abolition of paper money, the length of the war, the
arrears of  debts, and the slender thread  by which
* Secret Journal* of Congress, v. 3, p. 151.
+ Lecky's History of England in the 18th Century, v. 4, pp. 250-51. 29
public credit hangs, put it totally out of our power to
make any great exertions without the immediate supply of money." *
Such were the favourable diplomatic and military British
influences assisting the Ministry of Great Britain in an^ military
these negotiations.    But there was then no masterfullnfluences*
or Palmerstonian mind moulding British diplomacy.
.The absence of even an advisory control is apparent in
the confession made by Lord Shelburne to Mr. OswTald, Lord
a  month  before  the  Treaty was signed :  1 As you conf^™^S
desire to be assisted by my advice, I should act with
great insincerity if I did not convey to you that I find
it difficult, if not impossible, to enter into the policy
of all you recommend upon the subject, both of the
fisheries and the boundaries." "J*    He had previously
informed him :  " We have put the greatest confidence His great
ever placed in man in the American Commissioners." }!? Tje?em
No   winder, therefore,  that, after  these admissions, Commis-
Messrs. Oswald and Vaughan were enabled  to give
effect to their unpatriotic policy respecting Canada, The result,
and to concede to the United States more than was believed possible by that nation, or their European allies.
Mr.  Jay,  suspecting  that   M.  de  Vergennes   was Mr. Vaughan'^
"plotting  with Fitzherbert in order to exclude the
New  England   fishermen   from   the   Newfoundland
banks, and to keep the valley of the Ohio for England," § induced Mr. Vaughan to return to England IT
* Sparks's Diplomatic Correspondince of the Revolution, v. 3, p. 251.
f Wharton's Digest of International Law, v. 3, p. 906.
X Ibid, p. 905.
§ Life of Lord Shelburne, v. 3, p. 254.
IT Mr. Lecky says that "Jay despatched a secret messenger of his
own." (v. 4, p. 285.) Mr. Vaughan was the only one sent: See
Wharton's Revolutionary Diplomatic Correspondence, v. 1, p. 647.
new mission 30
and I tell Lord Shelburne of the American sentiment
and resolution respecting these matters." * To which
Mr. Adams added his advice: "I desired him—
between him and me—to consider whether we could
have any real peace with Canada or Nova Scotia in
the hands of the English."
lie cham- Mr. Vaughan accepted the  commission of Messrs.
«an interests. ^av an(^ Adams, to champion American interests, and
to impress upon Lord Shelburne | the necessity of
taking a decided and manly part respecting America,"
and not " seek to secure the possession of vast tracts
of wilderness." He was disastrously successful; and
Lord Shelburne and his colleagues thereupon consented
Canada's re- to grant " a confinement of the boundaries of Canada "
territory?P ° ^o a narrow strip of territory along the St. Lawrence
and Ottawa rivers. In authorizing Mr. Oswald to so
agree, Mr. Secretary Townshend said: | The third
article must be understood and expressed to be confined to the limits of Canada as before the Act of
1774." f ft: I |§
The Act referred to, known as " The Quebec Act,"
was passed on the 13th January, 1774,—prior to the
Revolution,—and described the boundaries of Canada
from the Bay of Chaleurs on the Atlantic, to the St
Lawrence, on more southerly lines than the present
Treaty boundary; thence up the St. Lawrence Biver,
and through Lake Ontario and the Niagara River into
Lake Erie, to the point where the" boundary of Pennsylvania intersected its shore, thence southward, along
that boundary, to the Ohio River, and down it to its
* Winsor's History of America, v. 7, p. 123.
+ MS. Despatch, Whitehall, 1st September, 1782.   The limits here
referred to were those described in the Proclamation of October, 1763.
Quebec Act
boundaries. 31
confluence with the Mississippi, and thence turning
northward, through the Mississippi River, to the Hudson's Bay Territories.*
Acting on the Foreign Secretary's instructions, Mr. Mr. Oswald
° . . ° J agrees to Mr.
Oswald provisionally agreed to the outlines 01  the jay's draft
Treaty of Independence drafted by Mr. Jay; and thentreaty-
transmitted them to Mr. Secretary Townshend with
the " Minutes regarding the Treaty with the Commissioners of the Colonies, and what is required of me by
His Majesty's Ministers on that head," in which he
reported " the articles said to be necessary and indispensable," as follows:
"(1) Independence,—supposed to be granted  as a He advises
Preliminary.    (2) A   settlement   of   the   boundaries Canadian
between the Thirteen States and the King's Colonies.lands to u- s-
(3) A cession to the Thirteen States, or to Congress, of
that part of Canada, that was added to it by the Act
of Parliament in the year 1774,—said to be necessary
and indispensable."    " If not granted there would be a
good deal of difficulty in settling the boundaries of the
Thirteen States, especially on their western frontier, as
the said addition sweeps round behind them; and I
make no doubt a refusal would occasion a particular Refusal
grudge, as a deprivation of an extent of valuable terri- ^grudge?* *
tory the Provinces had counted upon, and only waiting
to be settled and taken into their respective Governments.*!"    I shall therefore suppose this demand will be
* The Supreme Court of the United States has held that, by the
Treaty of Independence, the United States succeeded to all the
sovereign rights which the King of France had in the Canadian territory between the Ohio and Mississippi, and which he had ceded to
■Great Britain, as Canada, in 1763. United States v. Repentigny,
5 Wallace's Reports, 211.
+ The Quebec Act, being a Charter of Government to that Province with described boundaries,  having become law before the 32
granted, upon certain conditions." Mr. Oswald also*
And as "ad- reported the Doctor's "advisable articles, and proper
cles :" to reconcile the Americans to a cordial and friendly cor
respondence with Great Britain, and which he thought
were necessary to erase those impressions of resentment
for past injuries which otherwise must remain on the
minds of the inhabitants of those colonies for ages to-
Moneyindem- come, viz.: (1) £500,000 or £600,000 as indemnification to the sufferers of the Thirteen States, for burning-
and destroying their towns, houses and other property.
Parliament's (2) Some sort of acknowledgment, in an Act of Parlia-
sympathy for ,, . r »       ,, . P
misfortunes nient or otherwise, ot our concern tor those misior-
tunes. (3) American ships and trade to be on the
same footing in England and Ireland as our ships, and
trade. (4) A surrender to Congress of every part of the
remainder of Canada, after the said reduction to the
Surrender of limits preceding 1774, reserving to Great  Britain a
T5?°le U gn"full freedom of fishing, and of imports and exports in
general, free of all charges of import or other duties." *
Dr. Franklin's    Mr. Oswald's ready assent to the cession of Canada
further de-    an(j ]S[0Va Scotia, desired by Dr. Franklin, appears to
mands. ■ -i •   i • ,   i
have suggested to that astute diplomatist less concu-
iatory demands ; for Mr. Oswald goes on to say : " In
April, when I first came over, Dr. Franklin mentioned
the reservation of the Canada lands, only as a thing
Cession of     very desirable for the sake of preventing disturbances
Canada an(j qUarrels between the  inhabitants living  under
different governments; and he proposed, in case the
grant was made, that the lands should be sold, and the
of U. S.
U. S. ships
and trade
equal to
Revolution, and while the Thirteen Colonies were subject to Great
Britain, was binding, as to boundaries, on the American Colonies-
lying along the boundaries of Canada described in that Act.
* MS. Despatch, Oswald to the Foreign Secretary, Paris, 11th September, 1782. 33
money applied for the relief of the sufferers on both
sides, as expressly specified in a writing which he put
into my hands with a liberty of perusal when necessary.
Since then, and particularly in July last, he proposed
that these bach lands of Canada should be given up,"Backlands-
and no allowance made out of that fund for the suffer- go^i^of tne
ers oh both sides.    But, on the contrary, that a sum of lakes, to be
money (£500,000 to £600,000) should be granted byglvenup*
Great Britain for the sufferers in the American cause.
I am afraid it will not be possible to bring him back to
the proposition made in April, although I shall try it.
Meantime I can plead that by resigning the sovereignty Mr. Oswald
into the hands of Congress, the purpose for which hej?h2r®e°gion
wished to have these additional lands given up (being to Congress.
that of preventing quarrels amongst the inhabitants),
will not be disappointed, since Congress may settle
them in any manner they think proper, whatever way
the value or price of the land is disposed of." *
Such pleading of the American cause by a British Effect on the
.       . ■       "R '+'<*h (1 TV
plenipotentiary seems to have aroused the indignation n^J x"
of some members of Lord Shelburne's Cabinet. | Richmond and Keppel were very bitter against Oswald,
who, they declared, was only an additional American
negotiator, and they proposed to recall him. This
Shelburne and Townshend refused to do, as they
especially desired that Oswald should be at Paris to
negotiate a commercial treaty." *f*
Diplomatic disaster to British and Canadian interests Diplomatic
now seemed imminent.    Mr. Jay, having obtained Mr. Q^nacU
Oswald's ready assent, drafted the Treaty, which the interests the=
latter forwarded to London as § a true copy of what has
* MS. Despatch, Ibid.
+ Life of Lord Shelburne, v. 3, p. 298.
5 34
Draft Treaty
provided for
(1) Independence.
(2) Cession of
Canadian territory, and its
British settlers.
(3) Right to
(4) Navigation of Mississippi without entrance
-or exit.
been agreed on between the American Commissioners
and me to be submitted to His Majesty's consideration."*
It provided for : (1) The Independence of the United
States. (2) The cession of nearly the whole of Canada,
including what are now the best settled parts of Ontario, with the thousands of British Loyalists and French
Canadians by whom it had been settled,—the boundary
being from the Atlantic on similar lines to those
described in the subsequently signed Treaty, as far as
latitude 45° on the St. Lawrence, at which point it was
proposed to cross the river, and to run from "thence
straight to the south end of Lake Nipissing, and thence
straight to the source of the River Mississippi." *f* (3)
The cession of the Canadian fisheries in these words :
" the people of the United States shall continue to
enjoy unmolested the right to take fish of every kind':
in British-Canadian waters, " where the inhabitants of
both "countries used at any time heretofore to fish." J
(4) The free navigation of the River Mississippi to
Great Britain,—but without any means of entrance
or exit for her ships. §    Compensation for the Loyal-
* MSS. Despatches, Oswald to the Foreign Secretary, 7 th and 8th
October, 1782.
+ See "Oswald's proposed boundary line," as indicated on the Map.
X One of the grounds upon which the United States claimed the
Canadian and Newfoundland Fisheries was "from their having
once formed part of the British Empire, in which state they always
eujoyed, as fully as the people of Britain themselves, the right of
fishing," and that " they were tenants-in-common while united
with her, unless, by their own act, they had relinquished their title.
Wharton's Revolutionary Diplomatic Correspondence, v. 5, p. 91.
§ In a debate on the Treaty, Lord North said : '' There seems to
be a peculiar mockery in the Article which granted an eternal and
free navigation of the Mississippi. Such is the freedom that, where
we had not been locally excluded, we have effected our exclusion by
Treaty."   Parliamentary History, v. 23, p. 452. 35
ists, reversal of confiscations, and payment of American
•debts to British merchants, were refused, and there- Rights
i      j       j i.    it.    -D -i' t n •• * abandoned,
upon abandoned by the British Commissioners.*
Lord  Shelburne had particularly  instructed   Mr. Lord Shel-
Oswald that no independence should be acknowledged irrench Min-
without the British Loyalists being indemnified, and isteron Loy-
,    . n      .    , . -i  i       a     -i ji     -n        i  austs claims,
their confiscated property restored.*!*    And the x rencn
Minister had conceded the justice of these claims by
advising the American Commissioners that their views
on the subject of the Loyalists were unreasonable. J
Political bitterness, however, influenced American
-diplomacy; § and Messrs. Oswald and Yaughan careless of the honour and justice of their nation, approved Unfaithful-
I16SS of
of the demand that not a foot of British land should Messrs.
be left in America where the Loyalists could find a 2.swa!d and
refuge from political persecution, or a home for their
families ; and by ultimately ceding a fruitful agricultural territory in the latitude of their homes, which
had, up to the Revolution, formed no part of the territory of the original Thirteen Colonies. 1F
* A copy of this Draft Treaty is printed in Sparks's Diplomatic
Correspondence of the Revolution, v. 10, p. 90.
+ Life of Lord Shelburne, v. 3, p. 189.
X Ibid, p. 300.
§ " From motives of humanity I hope she [Great Britain] will not
succeed; unless the same feelings of humanity should prompt me to
wish all mankind at war with that Nation—for her humiliation—
which is, at this time, if ever one was, hostis humani generis." John
Adams to the President of Congress, 19th March, 1781. Wharton's
Revolutionary Diplomatic Correspondence, v. 4, p. 315.
IT'' The British wanted to bring their boundary down to the Ohio,
and to settle their Loyalists in the Illinois country. We did not
choose to have such neighbours." Dr. Franklin to the Secretary of
State, 5th December, 1782. The "Illinois country " above referred
to, is now the State of Illinois. 36
U. S. severity    The Loyalists had been treated with undue severity
to Loyalists.
by the American revolutionists, for no crime save
fidelity to the lost cause of Great Britain. A graphic
statement of their sufferings has been given by a gifted
writer, whose sympathies are known to be favourable
to the United States :
" The first civil war in America was followed, not by
amnesty, but by an outpouring of the vengeance of the
victors on the fallen. Some Royalists were put to
death. Many others were despoiled of all they had,
and driven from their country. Massachusetts banished by name 308 of her people, making death the
penalty for a second return. New Hampshire proscribed 76 ; Pennsylvania attainted nearly 500 ; Delaware confiscated the .property of 46 ; North Carolina,
of 65, and of 4 . mercantile firms; Georgia also passed
an Act of confiscation ; that of Maryland was still more
sweeping. South Carolina divided the Loyalists into
four classes, inflicting a different punishment upon
each. Of the 59 persons attainted in New York, $
were married women, guilty probably of nothing but
adhering to their husbands, members of the Council, or
Law Officers, who were bound in personal honour to be
faithful to the Crown. Upon the evacuation of
Charleston, as a British Officer who was on the spot
stated, the Loyalists were imprisoned, whipped, tarred
and feathered, dragged through horse-ponds, and carried about the town with ' Tory' on their breasts.
All of them were turned out of their houses and plundered, 24 of them were hanged upon a gallows facing
the quay, in sight of the British fleet, with the army
and refugees on board.
* United States,  an   Outline of Political History,  by  Goldwirs
Smith, D.C.L., pp. 110-11. 37
Judged by their subsequent actions, neither Lord
Shelburne, nor any of his colleagues, appears to have
realized, until Mr. Jay's draft treaty was before them,
the impending Decensus Averni Politici, into which
they had, partly with their own consent, and partly
from want of efficient supervision, allowed the colonial
and territorial interests of Great Britain in Canada, to
drift, under the unskilful diplomatic pilotage of Messrs.
Oswald and Vaughan.
Thus piloted, and surrounded by the darkness of
home ignorance of the agricultural wealth, and the
undeveloped resources, and apparently indifferent to the
future commercial value of the trade, of the coveted
Canadian territory, Lord Shelburne's Government, to
the astonishment of the European allies of the United
States, surrendered to every demand, abandoned the
Loyalists and, after losing thirteen British Colonies, in a
fit of unintelligible, and—as Great Britain subsequently
realized — unappreciated, benevolence, gratuitously
made the Thirteen United States a gigantic present of
sufficient British and Canadian territory, which British arms had won from France, out of which to create
nine additional States;—thus endowing the revolted
and lost Colonies with an additional territorial empire
of about 415,000 square miles, about equal to the
present combined area of Germany and France; and
thereby alienizing the British inhabitants which had
their homes within its boundaries. *
pilotage of
Oswald and
Great Britain
loses 13 colonies and then
cedes territory sufficient
for 9 new
Equal in area
to Germany
and France.
* The additional territory gratuitously ceded by Great Britain to the
United States, was afterwards, at the dates mentioned, formed into
the following States: Kentucky (1792), Tennessee (1796), Ohio (1803),
Indiana (1816), Illinois (1818), Alabama (1819), Michigan (1837),
Wisconsin (1848), and Minnesota (1858). 38
The King's
Lord Shelburne's warn
ing to Mr.
Mr. Strachey
sent to avert
the impending disasters.
Mr. Stra-
When the extravagant generosity of the Draft Treaty
was realized, and the tie between the American
Colonies and Great Britain was about to be severed,
the King plaintively wrote to Lord Shelburne : * I am
too much agitated with a fear of sacrificing the interests of my country * * that I am unable to add
anything on that subject, but most frequent prayers to
Heaven to guide me so to act, that posterity may not
lay the downfall of this once respectable Empire at my
door; and that if ruin should attend the measures
that may be adopted, I may not long survive them." *
Lord Shelburne, in writing to Mr. Oswald, evidently
felt the peril in which his Government stood, and
warned him that " the nation would rise to do itself
justice, and to recover its wounded honour." Apparently, with the hope of averting, if possible, the impending national disaster, Mr. (afterwards Sir) Henry
Strachey, who had been Secretary to Lord Clive, and
was then Under-Secretary for Foreign Affairs, was
despatched to Paris with instructions to insist upon
compensation to the Loyalists, the retention by Great
Britain of the " Indian Territory," and of the original
boundaries of Canada within the Ohio and Mississippi;
or, if any Canadian territory should be ceded, to charge
it with compensation for the Loyalists; to obtain a
more favourable boundary of Nova Scotia, and to
reject the cession of the Canadian Fisheries, *f*
Mr. Strachey, though coming upon the diplomatic
battle-ground late, and single-handed, appears to have
fought for his imperilled cause with courageous tenacity, and to have taken a decided stand against some
* Life of Lord Shelburne, v. 3, p. 297.
t Ibid, p. 281. 39
of Messrs. Oswald and Vaughan's concessions.* As
stated by an American diplomatist, he " had been sent Criticisms on
from England for the purpose of stiffening the easy r,^tr eyv
nature of Mr. Oswald, but he only succeeded in infusing into the Conferences all the asperity which they
ever betrayed." *f* A late equally Anglo-phobe writer
declares that, J Mr. Strachey appeared in Paris as the
exponent of English arrogance, insolence, and general
offensiveness." J But his contemporaries were more
just: I Mr. Strachey won an acknowledgment from
both sides for his persistent energy and skill. Adams
said of him, j He presses every point as far as it can
possibly go. He is a most eager, earnest, and pointed
spirit.' And Mr. Oswald, in writing to Mr. Secretary
Townshend, said, 'He enforced our pretensions by every
argument that reason, justice and humanity, could
suggest.'" §
Mr. Strachey was too late! Had he sounded the But he was;
French Minister,—whose policy respecting the United 00 a e*
States he must have known,—he might, perhaps, have
learned that Congress had withdrawn the claims to
the fisheries, and the Mississippi boundaries, as idti-
mata ; and that M. de Vergennes was ready to use the
supervisory influence which Congress had given
France, for the purpose of making the American plenipotentiaries more conciliatory.1T   Against him, however, Messrs.
were the betrayals of Cabinet secrets to the Ameri-y^^^^
* "Vaughan, regretting the interposition of Strachey, undertook ^aet sec*~
for a second time to represent the American views to the British
Ministry."   Adams's Works, v. 3, p. 312.
+ Life of John Adams, by J. Q. & C. F. Adams, v. 3, p. 39.
X Morse's John Adams, American Statesmen Series (1890), p. 218.
§ Winsor's America, v. 7, p. 139.
%Ibul, p. 141. 40
And approved
of the cession
of Canada.
He gained a
slight change
In boundaries.
British Commissioners
unaware of
U. S. modification of
claims to
shore fisheries.
can Commissioners by Messrs. Oswald and Vaughan;
their oft-given approval of the cession of Canada and
Nova Scotia; the consent of the British Ministry to a
confinement of the Canadian limits to a small strip of
territory along the St. Lawrence River, and the cession
of the remainder to the United States.* He failed,
therefore, to reverse Mr. Oswald's cession of the fertile
agricultural territory of southern Canada south of the
Great Lakes, and in the valley of the Ohio and Mississippi. He also failed to have the Nova Scotia boundary commence at the Penobscot River, but he recovered the territory between the St. John and St. Croix
Rivers, making the latter, where it flows into Passa-
maquoddy Bay, the Atlantic starting point. And,
under imperative instructions from the Foreign Office,
he regained the portion of the Canadian (now southern
Ontario) territory between Mr. Oswald's Lake Nipissing
and Mississippi line and the lakes; and he accepted the
present river and lake boundary.*f*
Neither Mr. Oswald, nor Mr. Strachey, appears to
have been aware of the conditional modification of the
claims respecting the fisheries as an ultimatum; nor
that Congress had directed their Commissioners to
claim the right to take fish " on the banks of Newfoundland and other fisheries in the American seas anywhere, excepting within the distance of three leagues
* MS. Despatch, the Foreign Secretary to Oswald, Whitehall,
1st September, 1782.
+ One of the alternative boundary lines proposed was to continue
on the 45th degree of north latitude from the point where it crossed
the Connecticut River, and thence west to where it would strike
the River Mississippi. MS. Despatch, Strachey to the Foreign Secretary, November, 1782. For the Draft Treaty proposing this 45°
latitude boundary, see Sparks's Diplomatic Correspondence oj the
Revolution, v. 10, p. 95. 41
off the  shores of the  territory  remaining  to  Great
Britain at the close of the war, if a nearer distance Conceded
•cannot be obtained by negotiation." *    But, apparently Canadian
in ignorance of these facts, all Canadian in-shore fishery reciprocal
° i ■        .       J right to
rights were conceded, without even the suggestion—American
much less the demand—of a reciprocal concession to® ?rae  s
•Canadians to take fish in American in-shore waters.
What took place  over the  fishery clauses of  the American
1 ^ account of
Treaty has been dramatically related by Mr. Adams's the discussion
liinoTflnriPr- over the fish-
Diograpner. ery clauses#
I Mr. Strachey proposed that the word I right' in
this connection should be changed to j liberty.' Mr.
Fitzherbert sustained the movement by remarking that
I right' was an obnoxious expression. The suggestion
seems to have fired Mr. Adams, and immediately he
burst into an overwhelming defence of the term he
bad chosen. He rose, and, with the concentrated Suppression
power which he possessed when excited, declared that modified
when first commissioned as a negotiator with GreatPoli°y of
? Congress.
Britain, his country had ordered him to make no peace
without a clear acknowledgment of the right of the
fishery, and by that direction he would stand. No
preliminaries should have his signature without it.
And here he appealed with some adroitness to Mr.
Laurens, who had been President of the Congress when
the first commission was given. Mr. Laurens readily
responded to the call, and seconded the proposition
with characteristic warmth. And Mr. Jay virtually
threw his weight into the scale." *f*
*Secret Journals of Congress, v. 3, p. 231. See also the report of the
Committee of Congress, 8th January, 1782.
t Life of Adams, v. 2, p. 44. "The fact seems to be that John
Adams was determined to get the use of these fisheries, regardless of
6 42
| The stroke
Mr. Jay's
letter of the
The biographer of Mr. Adams thereupon paraphrases
the sinister maxim " the end justifies the means," by
telling us that g the stroke proved decisive;" but he
apologizes by adding: " The act was the assumption
of another prodigious responsibility."* And so it
was; for the American Commissioners well knew that
the earlier policy of Congress as set out in their first
commission had been modified, and that the ultimatum
respecting the Canadian fisheries, which they asserted
with such indignant fervour, had been practically
withdrawn. And Mr. Jay confirms this by recording -
«' Had I not violated the instructions of Congress, their
dignity would have been in the dust."*f*
When the terms of the preliminary Treaty of Independence became known, the French Government at
once demanded an explanation from the American
Minister. " T am at a loss," sarcastically wrote M. de
Vergennes to Dr. Franklin, " to explain your conduct,
and that of your colleagues. You have concluded
your preliminary articles without communicating with
us, although Congress prescribed that nothing should
be done without the concurrence of the King. You
are wise and discreet, Sir! You perfectly understand
what is due to propriety; you have all your life performed duties. I pray you to consider how you propose to fulfil those which are due to the King." j   He
his instructions." Snow's Treaties and Topics in American Diplomacy, p. 430.
* Life of A dams, v. 2, p. 45.
+ Life of Jay, v. 2, p. 105.
X Dr. Franklin apologized, and admitted that the French Minister's observations were just: " we have been guilty of neglecting a
point of biensSance : we hope it will be excused," and that the great
work would "not be ruined by a single indiscretion of ours."   M. also instructed the French Minister at Philadelphia to
inform  the  American  Secretary  of  State  that the
American Commissioners had deceived him, and had Charges the
been guilty of a gross breach ot taith.    And in writing Commission-
The  English  haveerswith
J   ■'. breach of
bought a peace, not made one.    I heir concessions nave faith.
exceeded anything we believed possible."    And the Surprise at
French representative to the United States reported canldic
to M. de Vergennes, that the cession of the western territory.
Canadian territory to the sources of the Mississippi,
had surpassed all expectations, for it gave the Americans four forts that they had found it impossible to
capture. *
The closing letters of Mr. Strachey to the Foreign Mr. Strait *v» • iiiTTiTi >        •• e .  ,,    chey's private^
Omce, give a blunt JLnglishman s opinion ot a specialty letters on
he discovered in American diplomacy.    In reporting American
L ^ . diplomacy.
to his chief, he said, " The Treaty must be re-written
in London in regular form, which we had not time to
do in Paris, and several expressions, being too loose,
should be tightened. These Americans are the greatest
quibblers I ever knew."*f* Later on he wrote to a
colleague: " The Treaty signed and sealed is now sent.
I shall set off to-morrow, hoping to arrive on Wednesday, if I am. alive. God forbid if I should ever have
a hand in such another Peace.
de Vergennes accepted the apology. Mr. Secretary Livingston also
expressed his personal disapproval of the acts of the Commissioners, adding : "It gives me pain that the character for candor and
fidelity to its engagements, which should characterize a great
people, should have been impeached."   25th March, 1783.
* Winsor's America, v. 7, p. 158, note 5.
+ MS. Letter, Strachey to the Foreign Secretary, Calais, 8th
November, 1782.
X MS. Letter, Strachey to the Foreign Office, Paris, 30th November, 1782. 44
policy in
judgment on
Treaty a
humiliation to
Lord Town-
ishend's opinion.
Whatever strategic policy may be allowable in
Treaty-making diplomacy, it should be controlled by
the knowledge that the diplomatist represents the conscience and good faith of his Sovereign, and the dignity and honour of his Nation. The skilled diplomatist who possesses the tact des convenances, may
make legitimate use of argumentative strategy, while
combining adroitness with integrity; but ever mindful
of the radiant light of his representative station;—
combinations of qualities which will win for him a
reputation for sagacity, tact and rectitude, and assure to
him a recognized supremacy in diplomatic emergencies.
Judged by such standards, the reader can say whether
this early, venture of American diplomacy illustrated
the specialty recorded by the British representative;
the conduct charged by the French Minister; as well
as the sinister diplomatic qualities frankly avowed by
American apologists. *
The Treaty of 1782 was a humiliation to Canada, in
the loss of her territory, in the cession of her fishery
rights, and in the uncertainty of her boundaries.
Lord Townshend, in the debate on the Treaty, well
said : <c Why should not some man from Canada, well
acquainted with the country, have been thought of
* Sir John Macdonald, writing confidentially to a colleague in
1871, respecting the Protocols on the Treaty of Washington said:
"The language put into the mouths of the British Commissioners
is strictly correct; but I cannot say as much for that of our American
colleagues. They have inserted statements as having been made by
them, which in fact were never made, in order that they may have
an effect on the Senate. My English colleagues were a good deal
surprised at the proposition; but as the statements did not prejudice England, we left them at liberty."—Life of Sir John A. Macdonald, by Joseph Pope, v. 2, p. 134. 45
for the business which Mr. Oswald was sent to negotiate ? Dr. Franklin, Mr. Jay, Mr. Laurens, and Mr.
Adams, had been an overmatch for him; he either did
not know, or appeared ignorant, how the country lay
which he had been granting away, as the bargain he
had made clearly indicated." * And a Canadian Lieutenant-Governor reported : | When Mr. Oswald made
a peace with the Americans in 1782, he evinced his
total ignorance of the country and its true interests,
in the line he fixed as the boundary between us."
It has been truly said by American writers : | The
bargain with England was struck on the American
basis. Considering the only ultimatum they were
ordered to insist upon, the Americans made a wonderfully good bargain. The United States could, in all
reason, ask little more of any nation." + And the
diplomatic history of the subsequent treaties proves
that the United States have asked for, and have generally struck, further | good bargains" with Great
Britain | on the American basis " respecting Canadian
territory. Even now efforts are being made by the
United States to hold Canadian territory, J and ignore
Mr. Oswald'
total ignorance of the
Bargain with
i struck on
the American
U. S. has
other I good
bargains " of
Ignores Can'
ada's claims
in Alaska.
* Parliamentary History, v. 23, p. 391.
f John A dams (American Statesmen Series) p. 200. "The great
object upon which all American minds were bent, was Peace ; and
they were agreeably surprised at getting it upon such favourable
terms."   Winsor's America, v. 7, p. 158.
X In 1876 the United States directed its Alaska officers to collect
duties from Canadian settlers at places on the Stikeen river, which
were subsequently found to be seven miles within Canada. "It
seems remarkable that while that Government has hitherto refused
to define the boundary, it should now seek to establish it in accordance with its own views, without any reference to the British
authorities, who are equally interested in a just settlement of the
international boundary." Canada Sessional Papers (1878), No. 125,
pp. 63, 66 and 144. 46
^England en-
dowed the
U. S. with
4< gigantic
boundaries on
the south,
west and
And weakened British
in America.
Canada's right to be heard in the Alaska boundary
dispute. *
A candid historian of the United States reminds the
people of the United States that: 1 However great the
errors committed by England in the American struggle,
it must always be remembered to her credit that, in
the peace negotiations, Shelburne, declining all temptations to a contrary course, endowed the Republic wTith
the gigantic boundaries on the south, west, and north,
which determined its coming power and influence, and
its opportunities for good."*f* But this endowment
of 1 gigantic boundaries" transferred Great Britain's
wealth of empire-territory in Canada to the Republic,
thereby weakening her empire supremacy, and Canada's
sphere of influence, in North America.
* In view of the many efforts of certain newspaper correspondents in the United States to prejudice public opinion against the
Canadian Government's action respecting the Alaska boundary, the
following historical precedent may be cited: In  1831, when the
King of the Netherlands made his Award on the Maine boundary,
Mr. Preble, of that State, was American Minister at the Hague, and
served the King with a protest against his Award.    He sent his
despatch and papers to the U. S. Secretary of State by a tedious
route, via Paris, Brest, and New Orleans, to Washington; while by
the more expeditious route, via Liverpool and New York, he sent a
pressing recommendation to the Governor of Maine, urging that
the Legislature should protest, in advance, against any Award by a
Foreign Potentate which might in any way affect Maine or deprive
her of any portion of the State territory, for the benefit of England.
The " State Rights " protest, was thereupon formulated, and successfully aroused public sympathy for Maine, some weeks before the
official Award reached the U. S. Government.    This mauvais tour
soon became known to the Government, and caused much embarrassment ; but American public opinion had been inflamed, and made
hostile to Great Britain in advance; and the President and his political party, being on the eve of a Presidential election, reluctantly
rejected the Award : See Grattan's Civilized America, v. 1, p. 353.
t Winsor's America, v. 7, p. 150. 47
An equally congratulatory opinion on this endow- Great Bntaia
" save most
ment of the United States has been expressed by a well- and took
known American commentator on International Law :least*
I It has been frequently said that, of all the Treaties
executed by Great Britain, this Treaty was the one in
which she gave most and took least.    And in view of
the fact that Great Britain at that time held New
York,  Charleston,  and  Penobscot,  and   had  almost
unchecked control of American waters, her surrender—
mot merely of  the  entire  territory  claimed  by  the
Colonists, but of the Indians in that territory whom
she had held under her allegiance, of the rights of the
Refugees she had pledged herself to protect, and of the
Fisheries, in which she conceded to the United States
& joint ownership,—presents an instance of apparent British sur-
-sacrifice of Territory, of Authority, of  Sovereignty, oikied in
and of Political Prestige which is unparalleled in the Diplomacy,
history of Diplomacy." *
The  diplomatic   correspondence  during  the  early Diplomatic
years of this century furnishes materials for a history ^ence since
of the embittered international relations between the Revolution,
United States and Great Britain,—born of the Revolu- tered relation, matured by the frenzied terrorism of Robespierriantions'
France, and made passionate by the drastic and retaliatory policy which Great Britain was forced to adopt
to counteract the effect of Napoleon's Berlin decrees of
1806, prohibiting neutral commerce  with  the  ports
•decreedclosed to British trade; and also in the defence,
-single-handed, of her island-shores from a threatened
invasion by her bitter and war-trained enemies, and in
maintaining  her  supremacy  as a Sea  Power.    Her
-estranged American kindred showed no consideration
* Wharton's History and Digest of International Law, v. 3, p. 907. 48
No considera-for the cruciate and emergent necessities of their then
tion for Great
Difficult to
U.S. policy
in construction of
isolated, but domineering, old Motherland; whose foreign and sea policies they then passionately denounced,
but which they have since admitted were justified by
International Law, as being "necessary measures of self-
defence, to which all private rights must give way." *
There is much also in that correspondence, and also
in the correspondence respecting the subsequent-
Treaties suggested, agreed to, and rejected, which
make it difficult to harmonize the policy and the arguments of the United States in their diplomatic discussions, as well as in their one-sided interpretation of
their Treaties, with Great Britain, *f*
The Treaties of 1782-83 had assumed that the boundary line on a " due west course " from the Lake of the
Woods, would strike the Mississippi (for all the proposed boundary lines converged to that river), and
thence down the middle of that river to latitude 31°.
Uncertainty By Mr. Jay's Treaty of 1794, the uncertainty of the
in 1794 "due west course" was admitted; and it was there
agreed that the boundary line should be adjusted " in
conformity to the intent of the Treaty of Peace." It
was subsequently admitted that the head waters of
Case of the
* Moore's History and Digest of International Arbitrations (1898)r
v. 1, p. 841. Lord Stowell held that the British orders of blockade
were resorted to as a defence against the injustice and violence
of the French ; and that they were justly reconcilable with those
rules of national justice by which the international actions of independent States were usually governed. See his judgments in 1
Dodson's Reports, 133 ; and Edwards's Reports, 314 and 382.
f In one case the United States contended that Great Britain
intended to abandon the right of visitation because no mention of it-
was made in the slave trade clause. But on a claim by Great
Britain to hold a certain boundary they contended that the words-
describing it in the Treaty, must govern. Grattan's Civilize a\
America, v. 1, p. 414. 49
the Mississippi were not " due west," but almost eighty
miles directly south  of the  Lake  of the  Woods. *
Under the doctrine of falsa demonstratio non nocet, it Legal
is a well recognized rule of law that, where natural ^lf"1?!
° applicable'
and permanent objects are designated or described in
a patent, or deed, as connected by a line on a certain
course, or distance, which is found to be erroneous,
both course and distance must yield to the dominant
control of the natural objects, in order to give full
effect to the act or deed of the parties.*f*    And the-?owU. S.-
Supreme Court of the United States has formulated construe
another doctrine, that Treaties ceding territory to the •rreaties'
United States are to be construed most favourably to
the ceding power, j—which in this  case was Great
In 1802 the United States, in a despatch reciting theU. S. agreed-
erroneous description of the "due west" Mississippi line ^jgtakt/
in the Treaty of 1783, proposed the following rectification :—" It is now well understood that the highest
source of the Mississippi does not touch any part of
the Lake of the Woods.    To remedy this error it may
be agreed that the boundary of the United States, in
that quarter, shall be a line running from that source
of the Mississippi which is nearest to the Lake of the Line from
Woods, and striking it westerly at a tangent, and, from j^e 0f the
the point touched, along the water-mark of the lake to Woods.
its most north-western point, at which it will meet the
line running through the lake." §
* Bancroft's History of the North- West Coast, v. 2, p. 320.
+ "The extent of the mischief which would result from unsettling
this principle cannot be conceived." Per Marshall, C. J., in Newsom
v. Pryor, 7 Wheaton's Reports 7.
X United States v. Arredondo, 6 Peter's Reports 691.
§ American State Papers, Foreign Affairs, V. 2, p. 585.
7 gMilUr
"Treaty of
1803 settled
the Mississip
pi boundary.
Rejected by
U. S. Senate.
policy of
Great Britain
on marine
of neutral
Under these instructions, a Treaty was signed in
London on the 12th May, 1803, in which it was agreed
that, instead of the boundary line in the Treaty of
1783, it should be "the shortest line which can be
drawn between the north-west point of the Lake of
the Woods and the nearest source of the Mississippi."*
But, although the initiative for this Treaty had been
taken by the United States, the Senate declined to ratify
it unless the clause settling the boundary line was struck
out,—the reason given being that the United States
had then acquired the French rights in Louisiana, -f*
The conciliatory policy of Great Britain towards the
United States may be further illustrated by the exceptionally liberal rule as to marginal jurisdiction on the
High Seas, contained in an unratified Treaty of 1806.
Owing to the capture by British war vessels, on the
coasts of the United States, of the ships of the European nations with which Great Britain was then at
war, the United States proposed that it would not be
unreasonable, considering the extent of the United
States, the shoalness of their coast, and for other reasons, that the neutral immunity from belligerent acts
should extend to at least one league from the shore, or
should correspond with the claims of Great Britain
around her own coasts; and quoted the Hovering Act
of 1736, 9 Geo. II. ch. 35, extending the jurisdiction
respecting smuggling to four leagues. % The Admiralty
and Law Officers of the Crown advised against conced-
* The Treaty was signed by Rufus King and Lord Hawkesbury.
t Treaties and Conventions between the United States and Other
Powers, p. 1016.
X Mr. Madison to Messrs. Munroe and Pinckney, 17th May, 1806,
and 3rd February, 1807. 51
ing more than the usual three marine miles; but the
British Government, desirous of giving " a strong proof
of a   conciliatory  disposition  in   their   government
towards the government and people of the United
States,"* yielded to the proposal of the United States Extended by
by extending the neutral coast immunity from threeSom^ tolT111
to five marine miles in the  following article:—(12)marine miles.
" And whereas it is expedient to make special provisions
respecting the maritime jurisdiction of the High Contracting Parties on the coast of their respective possessions in North America, on account of peculiar circumstances applicable to those coasts, it is agreed that in
all cases where one of the said High Contracting Parties
shall be engaged in war, and the other shall be at
peace, the Belligerent Power shall not stop the vessels
of the Neutral Power, or the unarmed vessels of other
nations,  within  five  marine  miles   from  the  shore
belonging to the said neutral power on the American Treaty never
seas."    The Treaty was never submitted to the Senate ^f.ed by
for consideration or approval. *f*
The war of 1812 originated with the United States Origin of the
mainly because of the retaliatory measures adopted    aro      2#
by Great Britain to counteract the Berlin decrees of
Napoleon.    During the two  years it  continued, the
United  States suffered  more severely than  Canada.
The British forces and Canadian militia captured and British con-
held possession of a portion of Maine to the Penobscot <lu®sts on the
Biver, including the disputed Maine boundary territory
* Messrs. Munroe and Pinckney to Mr. Madison, 3rd January,
+ " The Treaty, not including an article relating to impressments,
the British Commissioners should be candidly apprised of the reason
ior not expecting a ratification." American State,_Papers, Foreign
Relations, v. 3, pp. 145 and 154. 52
And west to
U. S. had no
conquest in
Great Britain
aware of the
east and west
U. S. change
of ultimatum.
on the east; and, on the west, nearly all of Michigan,.
including the fort of Michilimakanac, and other portions of the former Canadian territory (including:
what is now Chicago) to Prairie du Chien, on the River
Mississippi, which had been won back from the United
States in fair fight, and a large extent of which, at the
close of the war, was held by right of conquest.*
At the same time, the United States had not even a
sentry on Canadian territory.
The British Government had long been aware of the
unsettled disputes with the United States respecting
both the north-eastern (or Maine), and the north-western (or Mississippi), boundaries, and of the undue
bitterness previously imported into the diplomatic
discussions with the United States. In 1814, Great
Britain was then free from the continental wars.
Napoleon had abdicated, and had retired to Elba. The
American Secretary instructed the plenipotentiaries
for the United States that it was " important to the
United States to make peace," and that " the great
and unforeseen change of circumstances, particularly
the prospect of a more durable state of peace between
Great Britain and the Continental Powers of Europe,.
* " Without a blow struck, part of Massachusetts (Maine) passed
under the British yoke, and so remained, without the least resistance until restored at the Peace. Two frontier fortresses, Michili-
macinac and Fort Niagara, were surprised, captured, and forcibly
held by the enemy [British] during the war ; and parts of Maryland.
and Virginia were overrun." Ingersoll's Second War between the-
United States and Great Britain, v. 1, pt. 2, p. 116. " For a time-
the County of Washington in Maine (lying between the Penobscot-
River and Passamaquoddy Bay) came under British authority. It was.
a most important surrender. The County of Washington embraced
one hundred miles of sea-coast, and formed the territory adjoining,
New Brunswick."   Kingsford's History of Canada, v. 8, p. 528. 53
and of security to our maritime rights, justify the
■change of our ultimatum." But notwithstanding this
leverage of international peace, and Great Britain's
war conquests, her historic generosity restored, unconditionally, all the conquered territories to the United
States, as a peace offering, by the Treaty of Ghent;
and she was subsequently rewarded with a vexatious
diplomatic controversy about, and an armed invasion of,
the formerly captured, and long-time disputed, territory
between Canada and Maine.*
The war of 1812 abrogated the fishery rights conceded to the United States, as well as the paper rights
of navigation of the Mississippi Biver (previously
•described), conceded to Great Britain, by the Treaties
of 1782 and 1783.f But by the Treaty of 1818, Great
Britain again conceded fishery privileges on certain
coasts of Newfoundland, Labrador and Canada, to the
United States. And although the United States
renounced, forever, the liberty to fish within three
marine miles of any of the coasts, bays, creeks or har-
* Many of the international difficulties over the Maine boundary
were caused by the actions of the State authorities, and not by those
of the Federal Government. See North American Boundary Papers,
(Imp.) B, (1838) Appendix.
+ I Logically war implies the cessation of existing intercourse, and
'therefore a right on the part of a State to expel or otherwise treat
as enemies, the subjects of an enemy-state found within its territory." Hall's International Law, p. 327. "War puts every individual of the respective Governments, as well as the Governments
themselves, in a state of hostility with each other. All Treaties
•contracts, and rights of property are suspended. The subjects of
the state are in all respects treated as enemies. They may seize the
persons and property of each other. They have no persona standi
in judicio, no power to sue in the public courts of the enemy
nation." Wharton's Digest of International Law, v. 3, p. 242. See
also British and Foreign State Papers, v. 7, pp. 79-97.
peace offering in 1814.
Rights abrogated by war
of 1812.
Great Britain
in 1818 concedes fishing
rights to U. S. 54
bours, not included in the specified British-Canadian
Irritating waters, there have been irritating charges of " prepos-
against terous   interpretations of the Treaty, and of " brutal""
Canada.        enforcements of Canadian rights respecting such renounced fisheries, which have introduced much political
acerbity into the diplomatic discussions between Great
Britain and the United States.* The Beciprocity Treaty
of 1854; the Washington Treaty of 1871; and the unratified Treaties of 1869, 1874 and 1888, and offers of reciprocity in Canadian Customs laws, besides other proposals to negotiate, may, however, be cited as showing
Great Britain that Great Britain  and  Canada have earnestly, and
efforts to       persistently, offered to settle these and other disputes
settle with    {n a spirit of mutual compromise and fair bargaining.
But though Treaty settlements have been agreed to by
leading  American  diplomatists, they have not  been
approved by the Senate of the United States.  It is now
generally conceded that, in this unneighbourly policy
on the part of the United States, the real difficulty in
the way of a settlement of the Canadian Fisheries-
controversy on broad lines, is the tariff system of the
United States; and that, until that is modified, there
can be little hope of a satisfactory settlement.*f*
In 1854, when the generation of the children of the
actors in the early Revolutionary times had almost
passed away, and a generation imbued with the national
U. S. Tariff
is the real
policy, and
*Isham's Fishery Question (1887), pp. 73-4. The Treaty cautiously provides that the privileges of fishing shall be under such
restrictions as may be necessary to prevent American fishermen
taking, drying, or curing, fish in the Canadian bays or harbours, or
in any other manner abusing the .privileges reserved to them.
+ Treaties and Topics in American Diplomacy, by Freeman Snow,
LL.D., p. 468. "It is not at all clear that the Fisheries difficulty
can as well be met by Retaliation on Canada, as by a Revision of
our own Tariff."   Isham's Fishery Question, p. 78. 55
characteristic of bargaining and bartering, held swaj7,tne Beci-
Lord Elgin and Mr. (afterwards Sir) Francis Hincks, on Treaty of
behalf of Canada, initiated better trade relations, and1854,
arranged the Reciprocity, or | give and take," Treaty;
to continue in force for ten years, and further, until a
year's notice to terminate it should be given by either
party. Under it, the United States obtained the liberty
of fishing in the Canadian in-shore fisheries, and of
navisratino; the River St. Lawrence; and Canada
obtained the liberty of fishing in the American in-shore
fisheries north of latitude 36°, and of navigating Lake
Michigan.    Reciprocal free import and free export of Free import
.   . .        t 1     i • i i   i , i  and export of
certain natural productions were also conceded to each natural pronation.    But during the Civil War of 1861-65, theductions-
sympathy of very limited portions of the British and
Canadian communities with the South, was assumed
by the  Northern States to  be  universal;  and  the U.S. termin-
escape of the Alabama, and other privateers, fromTr^sat 1S
British waters, rekindled,—| in the hour of peril and
adversity, when feelings are most keen,"—the almost
forgotten embittered relations of the earlier years of
the century; and in a spirit of retaliation, the United
States gave the notice which put an end to the Reciprocity Treaty in 1866.
The Washington Treaty of 1871 admitted Great Washington
Britain's liability for the Alabama claims, and pro-deeded
vided for an Arbitration to settle the damages sub- Fishery rights;
sequently awarded and paid; adjusted the Canadian
Fishery Question on the basis of compensation for a
ten years' purchase;  conceded to the United States
the free navigation of the St. Lawrence up to latitude
45° for ever;   while the United States conceded to
Canada for only ten years, the free navigation of Lake
to U. S. 56
Great Michigan.    It also assumed to give to Great Britain a
Britain s
rights on       right to the free navigation of the Yukon, Porcupine
nnofe^RuSanan(i Stikene rivers in Alaska,—a right which Great
Treaty of      Britain then possessed under the Treaty with Russia
1825 « . .
of 1825, which provided that "the subjects of His
Britannic Majesty, from whatever quarter they may
arrive, whether from the ocean or from the interior of
the continent, shall forever enjoy the right of navigating freely, and without any hindrance whatever,
all the rivers and streams [in Alaska] which, in their
course towards the Pacific Gcean, may cross the line
of demarcation." *    (Art. 6.)
By the same  Treaty  it was  further agreed that
* The above had become part of the International Law of Alaska,
when that territory was ceded to the United States. {:' Treaties, as
well as statutes, are the law of the land, both the one and the other,
when not inconsistent with the Constitution, standing on the same
level and being of equal force and validity." Opinions of U. S.
Attorneys-General, v. 13, p. 354. The treaty of cession of 1867
recited the Anglo-Russian Treaty of 1825, and the boundaries of
i;he strip of Russian territory delineated therein, and ceded to the
United States "all the territory and dominion now possessed by His
Majesty on the continent of America." The following observations
respecting British claims when Louisiana was ceded to the United
States also apply : " Therefore with the rights acquired in 1819, the
United States necessarily succeeded to the limitations by which they
were defined, and the obligations under which they wore to be exercised. From these obligations and limitations, as contracted towards
Great Britain, Great Britain cannot be expected gratuitously to
release those countries merely because the rights of the party origin-
-ally bound have been transferred to a third Power." Bancroft's
History of the North- West Coast, v. 2, p. 372. | Or, as Mr. Gallatin
put the British claim, i the United States cannot claim under their
Treaty with Spain, any greater right than Spain then had," Ibid ,
note 23, "An alliance between two nations cannotr absolve either
from the obligations of previous treaties with third Powers."
Wharton's Digest of International Law, v. 1, p. 18. 57
each nation should, for ten years, have the right
of free importation of fish, and fish oil, except fresh
water fish; the free navigation of their respective
•canals, and the privilege of the transit of goods in
bond, or a reciprocal carrying trade; but with the
one-sided stipulation that the United States should
have the right to suspend the privileges granted to
British subjects " in case the Dominion of Canada
should deprive the citizens of the United States of
the use of the canals of the Dominion on the terms of
equality with the inhabitants of the Dominion." A
co-ordinate right to suspend the privileges of the
carrying trade conceded to the United States, in case
one of the States similarly acted, was not allowed to
Great Britain or Canada. The fishery clauses, and
some other provisions in this Treaty, were abrogated
by the United States in 1885.
When the Treaty was about to be negotiated, the
British Government was urged that the claims of
Canada against the! United States, arising out of the
Fenian Raids into Canada, should also be adjusted;—
alleging stronger grounds of I negligence and want of
due diligence" against the United States, than those
charged by that Government against Great Britain
in the Alabama case. The Imperial Government
assented; but owing to the indefinite phraseology of
the British Minister's communication proposing the
negotiations for a Treaty, the High Commissioners for
the United Slates refused to consider the Canadian
claims, alleging that they did not regard them as
coming within the class of subjects indicated in the
communication of the British Minister; and curtly
adding that 1 the claims did not commend themselves
in fish, and
fish oil, canals,
and carrying
clauses abrogated by U. S.
Fenian claims
of Canada
against the
U. S. rejected
in 1871.
U.S. reason
8 58
Curt reply to
Canada by
Colonial Secretary.
policy of U. S.
under the
U. S. imposes
a duty on fish
Canadian vessels stopped.
U. S. vessels
pass free.
to their favour." To this denial of international justice
to Canada, the British Commissioners submitted, and
stated that "under these circumstances they would
not urge further that the settlement of these claims
should be included in the Treaty." The reply of the
Colonial Secretary to the Canadian protest against the
ruling out of these Fenian claims, was equally curt;
£ Canada could not reasonably expect that this country
should, for an indefinite period, incur the constant risk
of serious misunderstanding with the United States."*'
The unfriendly treatment of Canada by the United
States may be illustrated by their actions in carrying
out that Treaty. Article 21 provided that fish and
fish oil should be admitted free of duty into either
country. After the Treaty had been four years in
operation, Congress passed a law that " Cans or packages made of tin, or other material, containing fish of
any kind admitted free of duty under any law or
treaty," should be charged with a specific duty,*)*—
though it was well known that the tins, when opened,
could not be used again. The duty practically prohibited the exportation of fish from Canada, and
rendered the above provision of the Treaty nugatory.^
Article 27 conceded to each nation the reciprocal use
of their respective canals. American vessels with
cargoes were permitted to pass through all the
Canadian canals, and the St. Lawrence River. But
Canadian vessels with cargoes were stopped at the
* Despatch, Earl of Kimberley to the Governor-General, 17th
June, 1871.    The Fenian Raids had cost Canada over $1,605,000.
t United States Statutes at Large (1875), v. 18, p. 308.
X Despatch, Sir E. Thornton to the Earl of Derby, 19th April,.
1875. 59
junction of the American canals with the water-way,
and had either to return to Canada, or tranship their
cargoes into American vessels*
In 1874, Canada's further efforts to promote friendly Canada's
and reciprocal trade relations with the United States ^^ *°->?'
resulted in a Draft Treaty being* settled by the late Sir relations with.
" US    1874
E. Thornton and the late Hon. George Brown, on behalf
of Great Britain, and the late Hon. Hamilton Fish, on
behalf of the United States.    It provided for (1) The Concedes
concession to the United States of the Canadian in- TL-^[J an(j
shore fisheries for twenty-one  years, and the  aban- abandons
, ,     »  ,, i. . . j? ii     ITT    i    compensation
donment ot the compensation provisions oi the Wash-therefor.
ington Treaty of 1871.    (2) The reciprocal admission,
duty free, of certain natural products.    (3) The reciprocal admission, duty  free,  of   certain   manufactured
articles.    (4) The enlargement by Canada of the St.
Lawrence and Welland Canals.    (5) The construction Other proof the Caughnawaga and Whitehall Canals.    (6) 9^^S ".
reciprocal right of each nation to the coasting trade of
the St. Lawrence and the Great Lakes.    (7) The reciprocal right of each nation to the use of the Canadian,
New York and Michigan Canals.    (8) The reciprocal
admission of the ships of each nation to registry.    (9)
A joint commission  to  secure   efficient  lighthouses
along the inland waters.    (10) A joint commission to Brown-
regulate fishing in the inland waters common to both ^reatv ?*"  t~
countries.    The draft treaty was accepted by Great ed by U. S.
Britain and Canada, but was rejected by the Senate of
the United States. M&
* Canada Sessional Papers (1876), No. 111. Subsequently the
prohibition was relaxed to the extent of allowing Canadian vessels to
proceed as far as Albany, on the Hudson River. 60
-Canada in
1888 again
offers a
policy to
the U. S.
Joint Commission to
delimit bays,
Rules respecting three-
jnile limit.
•Strait of
-Canso to be
iree to U. S.
Again, in 1888, by another effort to settle the Fishery
and other disputes, a Treaty was signed by the Right
Hon. Joseph Chamberlain, M.P., Sir L. Sackville-West,
and Sir Charles Tupper, on behalf of Great Britain and
Canada, and the Hons. Thomas F. Bayard, William L.
Putnam, and James B. Angell, on behalf of the United
States, which provided: (1) That a joint Commission
should be appointed to delimit the bays, creeks, and
harbours in which the United States had, in 1818,
renounced the liberty to fish. (2) That the three
marine mile limit, mentioned in that Treaty, should
be measured seaward from low-water mark, and that
at bays, creeks and harbours, not otherwise specially
provided for in this Treaty, such three marine miles
should be measured, seaward, from a straight line
drawn across such bay, etc., in the part nearest the
entrance, where the width did not exceed ten marine
miles.* (3) That in certain specially named bays, etc.,
the three mile limit should be measured from, and to,
specially named points. (4) That the Strait of Canso
should be free to all United  States fishing vessels.
(5) That United States fishing vessels should comply
with the usual harbour regulations, but not be bound
to report, etc., nor liable for certain specified charges,
and should be entitled to certain specified privileges.
(6) That certain rules should apply to cases of forfeiture
for violation of the fishery laws ; and that judgments
of forfeiture should be reviewable by the Governor-
General.    (7) That when the United States  should
*By the Anglo-French Treaty of 1839, and the Anglo-German
Treaty of 1868, bays, inlets and indentations of the coasts of each
nation, of the width of ten nautical miles at their entrance, measured
from headland to headland, were declared to be territorial, or inland,
and closed seas. 61
remove the duty on Canadian fish oils, and fish, and When m-
r» 1.1 i      .-ports of nsh
the coverings for the same, the like products should and fish oil to
be admitted free into Canada; and United States fish-be free*
ing vessels should be free to enter Canadian ports toU. S. fishing
i •• i_'j.j. jj.j. u* J.T- vessels free
purchase provisions, bait, etc., and to tran-suip eaten,Center
ship  crews, and have other specified privileges.    (8) Canadian
That  Canadian  fishing vessels should  have  on  the
Atlantic coasts of the United States, all the privileges
reserved by the Treaty to United States fishing vessels
in Canadian waters.    An interim modus vivendi wasu. S. Senate
agreed  to,  pending  the  ratification  of  the  Treaty. $™td the
Canada adopted the Treaty; * but the Senate of the
United States declined to ratify it.
Great Britain's diplomatic policy towards the United ^ ■
States has, for many years, been eminently one of con- generosity
ciliation and generosity, with a leaning towards  anto the u* s*
easy optimism, or laissez nous faire, at the 'expense
of Canada's territory.    Notwithstanding Jay's Treaty
of 1794, and the agreement in the unratified Treaty of
1803, previously mentioned,—by the Treaty of 1818,
Great Britain ceded to the United States the Canadian Ceding
i    i   i    i ,i       -i       i , »   .,    Canadian
territory situated  between  the  head waters  ot  the territory.
Mississippi and latitude 49°.*f*    By not consulting the
reports of Canadian officers, an isolated north-western
promontory of about 10,000 acres in the Lake of the
* Statutes of Canada (1888), 51 Victoria, c. 30.
+ The Plenipotentiaries of the United States reported to Congress,
on the 14th December, 1782, that Great Britain possessed the country on the Mississippi River to the Lake of the Woods. Sparks's
Diplomatic Correspondence, v. 10, p. 119. " About four millions of
acres to the west of Lake Superior, being a tract which had always
been claimed by Great Britain, went to satisfy the thrifty appetite
of the Republic." Canada.since the Union of I84I, by J. C. Dent,
v. 1, p. 205. 62
Cessions of
territory to
the U. S.
of boundary
In Treaties of
1782, 1783
and 1814.
Cession at the Woods, twenty-six miles north of the nearest territory
of the United States on the international boundary
line of 49°, was cut off from Canadian territory, and
ceded to the United States, by the same Treaty.
By the Ashburton Treaty of 1842, about 4,489,600
acres of Canadian lands were transferred to the United
States, which the concealed " Franklin's Red Line
Map," of 1782, would have sustained Great Britain's
to iwSTofclaim to- % the same Treaty the boundary line
described in the Treaties of 1782, 1783, and 1814, was
abandoned, and a strip of Canadian territory, lying
between the Connecticut and St. Lawrence rivers—
over 150 miles in length,—was alienated from Canada,
and ceded to the United States, by moving the original
treaty line of latitude 45° north, about three-quarters
of a mile, into Canada, increasing to a mile and a half,
and then sloping to the true astronomical latitude of
45° at the St. Lawrence River,—because the United
States desired to retain the town of Rouse's Point, in
Rouse s Point wnicn they had, improvidently, but for hostile purposes, built Fort Chamblee. * Gwing to incompleteness in the Joint Commissioners' description of the
boundary line of 1822, " a large island in dispute in
the passage between Lake Huron and Lake Superior,
known as St. George's or Sugar Island, was given to
the United States,"*!" by the same Treaty.
Cession of
* The treaty line of 1814 was removed into Canada 4,326 feet
north of the true latitude of 45° at Rouse's Point. Winsor's
America, v. 7, p. 180. The Award of the King of the Netherlands had
recommended that the treaty line of 45° should be adhered to, but
that Great Britain should cede to the United States a semicircular
piece of territory, with the fort. North American Boundary Papers
(Imp.), 1838, Appendix, pp. 7-15.
+ Winsor's America, v. 7, p. 180. 63
In 1846, when the little islanders and anti-colonials Canada loses
. . the Oregon
had chloroformed the Imperialists, the diplomatic territory,
leverage of the United States pried Great Britain and
Canada out of several millions of acres in the Oregon
territory, together with their British settlers and
traders, and a sea coast of about six degrees of latitude on the Pacific Ocean, with good harbours for
**   e*   1
naval stations*    And by Great Britain agreeing to^fj^of V tf
limit, at the instance of the United States, the scope of
the reference to the German Emperor in 1871, to only
two of the Vancouver channels, Canada was arbitrated
out of the Island of San Juan.*f*
Many diplomatic discussions have taken place about Boundary
it-it i r i i •     hies drawn
the boundary lines drawn on Maps during the negotia- on Maps
tions for the Treaty of Independence.    Mitchell's mapin  •
of North America (1755) is admitted to have been the
one used by the plenipotentiaries.     Both groups of
Commissioners appear to have drawn boundary lines
on the maps sent to their respective Governments.
Mr. Oswald transmitted one on the 8th October, 1782, Oswald's
which is said to be still in the Public Record Office in
London, and has a faint red line drawn on it, between
* Lord Ashburton appears to have imitated Mr. Oswald, in both
•disparaging and ceding Canadian territory; for in a conversation
respecting the Maine boundary dispute in 1843, he stated that
" the whole territory we were wrangling about was worth nothing."
Oreville's Memoirs, Part 2, v. 1, p. 469. And subsequently, in a
debate, in 1846, on the question of Great Britain's right to the Oregon
"territory, he said it was "a question worthless in itself," and that
it would be madness to go to war for " nothing but a mere question
•of honour."   Hansard's Debates, v. 84, p. 1119.
*t An unratified Treaty of 1869 for the settlement of this boundary,
contained no limitations. Moore's History and Digest of International Arbitrations, v. 1, pp. 223-31. 64
Strachey s
" The King's
lines of
Adams's evidence, 1797.
Mr. Jay's
Canada and Maine. * Mr. Strachey transmitted another
map *f* showing three proposed lines : (1) the Nipissing-
Mississippi line, originally accepted by Mr. Oswald \
(2) the 45° latitude line, from the Connecticut River
direct to the Mississippi; and (3) the present river and
lake line to the Lake of the Woods, and thence to the
Mississippi — which latter was the boundary line
accepted by the Foreign Office.J This line appears-
to have been subsequently traced on a map by King
George III., who wrote along the line the words-
"Boundary as described by Mr. Oswald."§ This map
is now in the British Museum, and is known as the
I King's Map."
In one of Mr. Oswald's despatches to the Foreign
Office, he reported that the American Plenipotentiaries-
had obtained from London | a complete set of the best
and largest maps of North America." And it is a-
matter of history that the Plenipotentiaries transmitted
maps with marked boundary lines to their Govern-
ment. President John Adams, one of the Plenipotentiaries of 1782, when examined in 1797, before the
Joint Commissioners appointed under Jay's Treaty of
1794, stated: i Lines were marked at that time, as
designating the boundaries of the United States upon
Mitchell's Map." Mr. Jay, another of the Plenipotentiaries, was also examined, and stated that § certain
* This map, known as | Oswald's Map," was subsequently referred
fco by Lord Palmerston as " the red-lined map showing the boundary
as claimed by Great Britain." See also Winsor's America, v. 7r
p. 181.
+ MS. Despatch, Strachey to the Foreign Office, November, 1782.
$ MS. Despatch, The Foreign Secretary to Messrs. Oswald and
Strachey, Whitehall, 19th November, 1782.
§ Lord Brougham identified the handwriting as that of King;
George III. 65
lines were marked on the copy of Mitchell's map which
was before them at Paris."* And in the Boston
Monthly Magazine, for 1826, it was stated that copies
of Mitchell's maps "with lines in pencil, hardly obliterated, were then in the Department of State in Washington." But about 1828, or a year before the " Statement
on the part of the United States," respecting the Maine
boundary was submitted to the King of the Netherlands, all of these maps " had mysteriously disappeared
from the American Archives, and were nowhere to be
found;"—for the maps there now have no marks. *f*
In Dr. Franklin's published letters there is one to Mr.
Jefferson, dated April, 1790, in which he also stated
that ■' the map we used in tracing the boundary " was
one of Mitchell's; and he added: " Having a copy of
that map before me in loose sheets, I send you the sheet
where you will see that part of the boundary traced." J
This map was produced to the Senate during the
debate on the Ashburton Treaty, and was declared by
the Chairman of the Committee on Foreign Relations
(after comparing it with the Franklin Red Line Map),
to sustain in every feature the map obtained in Paris
by Dr. Sparks; but it also has since disappeared.§
Maps in U. S.
State Department, 1826.
Their mysterious disappearance in
Dr. Franklin's Map
"Red Line
It also has
* Moore's History and Digest of International Arbitrations, v. 1,
pp. 19 and 21.
+ The statement of the disappearance of the marked maps of 1782
was made by Mr. Forsyth, then Secretary of State, to Mr. G rattan,
British Consul at Boston. See Grattan's Civilized America, v. 1,
pp. 371 and 436. Their disappearance from the U. S. Department of
State, is also confirmed by Winsor's America, v. 7, p. 181.
X Life and Letters of Franklin, by John Bigelow, v. 3, p. 462.
§ " There is no knowledge or recollection in the Department of
State of the map sent by Franklin to Jefferson in April, 1790."
Moore's History and Digest of International Arbitrations (1898), v. 1,
p. 157.
9 G6
Dr. Sparks's      gu^ tne map which furnished the best evidence in
xiiscovery of L
Franklin's support of the British-Canadian claim respecting the
Map " ofne Maine boundary, was discovered by Dr. Jared Sparks,
1782. of Harvard University, in the French Archives in 1842.
He  first  discovered  the  following  letter   from  Dr.
Franklin to M. de Vergennes, dated Passy, December
6th, 1782—written  six  days  after  the preliminary
PflFrfnSms treaty had been signed :  " I have the honour of return-
FYench ing herewith the map Your Excellency sent me yes
terday.     I  have  marked  with  a strong Red  Line,
according to your desire,  the limits  of the United
States as settled in the  preliminaries  between  the
British and American Plenipotentiaries." *    The map
which accompanied this letter was found among several
thousands in the Archives, with a strongly marked
I red line."    Dr. Sparks, who was familiar with the
*   Maine boundary dispute, sent a copy of the map, and
Map and       of Dr. Franklin's letter, to Mr. Webster, then Secretary
Mr eWebster° °^ State.*}"    Lord Ashburton subsequently produced to
Mr.   Webster  a  map  disclosing a  similar boundary
line; J but it was not accepted as evidence by  the
United States; although Mr. Webster then had the
Evidence of   Franklin "Red-Line  Map" and letter,  which  could
' have been claimed by Lord Ashburton, had he been
* Wharton's Revolutionary Diplomatic Correspondence, v. 6, p. 120.
+ Winsor's America, v. 7, p. 180.    Webster's Works, v. 2, p. 143.
X Probably the " Oswald Map," for it is said that Lord Ashburton
was not then aware of the existence of the " King's Map." There
was said to have been found in the Public Record Office in London,
a Mitchell map of 1755, on which was traced a faint red line which
supported the British claim, and was assumed to be the -l Oswald
Map."   See Winsor's America, v. 7, p. 181. 67
aware of their existence, as corroborative evidence of
the British claim. *
Dr. Sparks, in reporting to the Senate Committee Dr- Sparks's
on Foreign Relations, stated that after discovering the Congress,
letter, he made further searches and i came upon a
map of North America, by D'Anville, dated 1746, in
size about eighteen inches square, on which was drawn
a strong red line throughout the entire boundary of
the United States, answering precisely Franklin's
description. The line is bold and distinct in every
part, made with red ink, and apparently drawn with a
hair pencil, or a pen with a blunt point." " Jn "^^ Line
short it is exactly the line now contended for by Great tained British
Britain,—except   that   it   concedes   more   than   igclaim-
claimed."*f*    He subsequently deposited in the Library Copies in
of Harvard University a tracing of the red-line map, Library,
and also a modern printed map of Maine on which he
traced lines dividing the water-shed along the southerly
highlands to the monument on the present western
boundary.    To this he added the following certificate: Dr. Sparks's
"The broad black line on the annexed map corresponds with the Red Line drawn by Franklin on the
map deposited in the Archives des Affaires Etrangeres,
at Paris." J
* I Lord Ashburton told me it was very fortunate that this Map
and Letter did not turn up in the course of his negotiation, for if
ishey had there would have been no Treaty at all. Nothing, he said,
would ever have induced the Americans to accept the line, and
admit our claim ; and with the evidence in our favour] it would
have been impossible for us to concede what we did, or anything
like it." Greville's Memoirs of the Reign of Queen Victoria, Part 2,
v. 1, p. 469.
t See Senate Debates, 17th-19th August, 1842.
$The original Franklin "Red Line Map," as well as the original
letter of Dr. Franklin enclosing it to M. de Vergennes, have also
mysteriously disappeared from the French Archives at Paris.    "It 68
French Map
of 1783 agrees
with the
"Red Line"
Maps used to
secure assent
of U. S.
Lord Ashburton not
aware of certain Maps.
Mr. Webster's caution
to Mr.
Another French map, published in Paris in 1784,,
entitled "Carte des Etats Unis de L' Amerique,
suivant le traitd de Paix de 1783," and dedicated to-
Dr. Franklin, gives a boundary line corresponding in
every respect with the I red line " on Dr. Franklin's-
map. The presumption is irresistible that the boundary line printed on this map, must have been either
furnished to the publisher by Dr. Franklin, or copied
from the map transmitted by Dr. Franklin to M. de
Vergennes. These maps were produced before the
United States Senate, to secure its consent to the
Ashburton Treaty.*
.N either Lord Ashburton, nor the British Foreign
Office, appears to have known of any of these Franklin
maps ; and it is a matter of history that I Mr. Webster
was anxious lest the English Government should obtain
a knowledge of the Franklin map, for he cautioned
Mr. Everett, the American Minister in England, against
searching for maps, in England or elsewhere;—evidently in fear that Dr. Sparks's traces could be
found."*)*     Subsequently, in  1843,  he  defended  his-
is a strange thing that neither letter nor map are now to be found at
Paris, at least we have hitherto failed in doing so. But we have
found another map altogether in favour of the American claim. I.
will tell you the particulars of this curious affair when we meet."
Lord Aberdeen to Mr. J. W. Croker, 25th February, 1843, quoted
in Wharton's Digest of International Law, v. 2, pp. 178 and 179.
Copies of Dr. Sparks's maps were, by the courteous permission of
the late Dr. Winsor, obtained by the author from the Harvard.
University Library.
* The assent of Maine and Massachusetts was obtained by the*
payment of $300,000 for their expenses in sending the State Militia
to hold the disputed territory, and in making a survey. Moore's.
History and Digest of International Arbitrations, v. 1, p. 151.
+ Winsor's America, v. 7, p. 180. G9
action thus : j I must confess that I did not think it a
very urgent duty on my part to go to Lord Ashburton
and tell him that I had found a bit of doubtful evidence
in Paris, out of which he might perhaps make something to the prejudice of our claims; and from which
he could set up higher claims for himself, or throw
further uncertainty on the whole matter." *
Such was the evidence available in support of Great
Britain's title to the disputed territory in Maine, had
■due diligence been exercised in procuring it.*f*
Perhaps some of the international friction between
the United States, Great Britain and Canada, is due to
the want of disciplined experience, and tact, in subordinate officers, especially in those of the outside public
service of the United States. Their Civil Service—
owing to the frequent political changes, consequent
upon their maxim," to the victors belong the spoils,"—is
nnable to acquire the trained qualities, the diplomatic
and departmental traditions, the permanent characteristics, and the political independence, of the British Civil
Service. Had the American Civil Service similar traditions and characteristics, or were a non-political band
of expert servants of the State, experienced in emergent
foreign and colonial affairs, some unfortunate occasions
of friction, for which the higher types of American
Statesmen cannot be  held responsible, would never
* Webster's Works, v. 2, p. 153. " The nature of the Federal
Constitution gave Mr. Webster no chance of being honest."
Grattan's Civilized America, v. 1, p. 364.
+ " Our successive Governments are much to blame in not having
ransacked the Archives at Paris ; for they could certainly have done
for a public object what Jared Sparks did for a private one, and a
little trouble would have put them in possession of whatever that
repository contained."   Greville's Memoirs, part 2, v. 1, p. 469.
Mr. Webster's defence.
Some causes
of International friction.
U. S. Civil
British Civil
Service. Canada's       have occurred.    Our international relations with the
with U. S.     United States have suffered accordingly; and Great
have suffered. Britain and Canada have been angrily and unjustly
blamed on every occasion, when an American official's
over-zealous interferences, and illegitimate incidents,
have caused friction.
In 1839-40, a map and certain reports of surveys of
the 1 highlands of Maine," said to have been previously
made by United States surveyors, were sought to be
Incident of a used as evidence before the Joint Commission on the
and surveysP Maine  boundary.    The British Commissioner, after
investigation, was satisfied that the map was not genuine, and  that the alleged surveys were " spurious
surveys."    He thereupon requested that the American
surveyors should be examined on oath before the Joint
Commission,—offering   that   the   British   surveyors
should also be examined on oath at the same time.
L>oth request and offer were declined.*
Falsified During the Behring Sea Arbitration of 1893 some
BehrhignSeaQ ^a'sine^ an(^ interpolated translations of Russian docu-
Arbitration ments, the great majority of which " could only be
accounted for by some person having deliberately
falsified the translations in a sense favourable to the
contentions of the United States," were made by a
faithless official of the Department of State, and furnished to the British Foreign Office. Just as the
Foreign  Office  was  about to notify  the  American
* The British Commissioners reported to the Foreign Office as follows: "It has apparently been the policy of the official American
agents to substitute fancy for reality, and to endeavour to boldly
put forward, as fact, a state of things which was for the most part
hypothetical and conjectural, in order to draw attention from the
real merits of the British claim." North American Boundary
Papers, 1840 (Imp.), pp. 42-45. 71
authorities, the latter voluntarily withdrew the falsified translations, and furnished corrected ones; * but
the faithless official was never punished. In the same
Arbitration, numbers of affidavits were offered by the
United States as evidence against the British claims,
some of which were certified by the officer to have
been sworn before him, on the same day, at Lynn
Canal (Alaska), Victoria (British Columbia), and San
Francisco (United States). Another set of affidavits
were certified by another officer to have been sworn
before him, on the same day, at places 1,680 miles apart.
Another officer who had taken twenty-three affidavits
of certain Indians in Alaska, sent a police officer to
them, who, in the presence of the British agent, used
threatening language, and told them that the United
States officer would send anyone to gaol who talked
with, or gave evidence to, the British agent. The
British printed argument further states that "in a
great number of cases deponents, giving evidence for
the United States, have been seen with reference to
their affidavits; and almost invariably it has been
found that the statements made in their original deposition were capable of considerable modification and
explanation, not found in the original affidavit. Fresh
affidavits have been obtained from some of these deponents. In many cases the witnesses directly contradict
their former statements, and others even deny that
they made them."*|* The Blue Book gives the extracts
showing the contradictory statements of the witnesses.
official not
Affidavits put
forward by
U. S.
U. S. officer
Indians giving evidences
to British
Contradictory statements in
* Behring Sea Arbitration, British Counter Case, U. S. Senate Ex.
Doc, 1893-94, v. 8, pp. 7 and 305-378.
t Ibid, Argument of Her Majesty's Government, No. 4, 1893
(Imp.), pp. 148-157. 72
Invasions of
Canada's From the United States, Canada has received several
Blood "SbyS ° " Baptisms of Blood " through filibustering raids organ-
U. S. raiders. jZed in that country, not from any international friction
or embittered relations between Canada and the Republic ; but solely because of the colonial relation and
faithful allegiance of Canada to Great Britain.    The
American invasions of 1775-76, 1812-14, 1837-38, as
well as the Fenian Raids of 1866, 1870 and 1871, were
undertaken bv certain citizens of the United States in
the hope of striking an effective blow at the British
Fenian Raids Empire, in one of its most vulnerable parts. The Fenian
<md 1871.     ' Raids into Canada,—repulsed by the Canadian Militia,
—were ostentatiously undertaken to avenge the alleged
U. S. failure British  misgovernment  of   the  Irish   people.      The
Fenian raids. Government of the United States, though fully cognizant that their Fenian citizens were arming for the
declared invasion of Canada, never interfered until
some  of  their  filibustering hordes  had  crossed the
boundary, and had slain Canadians who were in na
way responsible for the British  government  of the
Irish people, and whose only crime was that of defend-
U. S. releases ing their families, their homes and country ; and then,
iHEl   ng   after arresting a few of the returned Fenian ringleaders, who had been caught red-handed, the same
Government,  at the request  of Congress,  and with
undue precipitancy, released and pardoned them, and
restored their arms.*
* " It would be difficult to find more typical instances of national
responsibility assumed by a State for such open and notorious acts
as the Fenian Raids in Canada, and by way of complicity after such
acts. Of course in gross cases, like these, a right of immediate war
accrues to the injured nation." Hall's International Law, p. 180.
The representations made by the Canadian to the Imperial Government of the action of the Government of the United States respecting,
the Fenian Raids are set out in Canada Sessional Papers (1872),
No. 26. 73
A policy of discrimination against the trade of
Canada with the United States, arose in 1806, when
the Canadian merchants presented a memorial to the
British Government, complaining of (1) their exclusion
from Louisiana, with which they had traded while a
•colony of Spain, and subsequently a colony of France,
the trade with which had amounted to from $200,000
to $250,000 yearly; (2). their being made to pay
higher duties on goods carried by them into the
United States, than the duties payable by citizens of
the United States on goods imported from other
•countries—charging Canadians 22 per cent, at inland
ports, instead of 16| per cent., the duty at Atlantic
ports. They also complained that, in violation of
Jay's Treaty of 1794 *, they were compelled to pay
$6 for a license to trade with the Indians—not required
of American citizens; and to dismiss their Canadian
voyageurs at the United States ports, and to employ
Americans " at great expense and inconvenience;':
and that the United States revenue officers at Michili-
makanac, had "harrassed and impeded the trade of
British merchants, on pretences the most frivolous
and unfounded, and in a manner equally vexatious
and injurious." *f* The Treaty of 1806 was intended
to remedy these complaints ; but it was never ratified.
Discrimination against
trade in 1806.
Extra duties
charge for
Treaty of
1806 not
* This Treaty (Art. 3) provided that the people on each side of
the boundary line should have free passage by land, or inland navigation, and freely to carry on trade and commerce with each other ;
and that goods and merchandise should be carried into each country,
aubject to the proper duties there charged. The Article declared
that its provisions were intended to render the local advantages of
•each party common to both, and '' thereby to promote a disposition
favourable to friendship and good neighbourhood."
+ American State Papers, Foreign Relations, v. 3, p. 152.
10 74
U. S. Congress
trade with
Great Britain.
U. S. retaliatory law
against Canadian vessels.
Not to land
U. S. goods
in Canada.
Violation of
Treaty of
During the same year (1806), Congress prohibited
trade with Great Britain, and her colonies, in leather,
silk, hemp or flax, tin, brass, woollens, window-glass,,
silver, paper, nails and spikes, hats, clothing, millinery,
playing-cards, beer, ale, porter, pictures and prints. *
And in 1809 commercial intercourse with Great Britain
and her dependencies, and also with France, was interdicted, f
In 1818, a retaliatory law closed the ports of the
United States against British vessels coming from a
port in a British colony which, by its ordinary laws of
navigation, had closed its ports against vessels from
the United States; and declared that such British
vessel touching at or clearing from a port in another
British colony which was open to vessels of the United
States, should not be held to remove the interdict. It
also required that British vessels taking on board
articles of the growth, produce or manufacture, of the
United States, should give bonds not to land them in
such inhibited British colony, on pain of forfeiture;
but in legislative irony it was declared that such interdiction should not be construed to violate the Treaty
of Commerce of 1815, J which provided that the
inhabitants of the two countries should have liberty,
freely and securely, to come, with their ships and
cargoes, to all places, ports and rivers in their respective territories, and to hire and occupy houses and
warehouses, and enjoy the most complete protection
and security for the purposes of their commerce.
* United States,Statutes at Large, v. 2, p. 379.   The law was modified in 1808.
+ Ibid, v. 2, pp. 529 and 550.
+ United States Statutes at Large, v. 3, p. 432. 75
In 1820, a further retaliatory law closed the ports of
the United States against British vessels coming from
Lower Canada, New Brunswick, Nova Scotia, Newfoundland, Prince Edward Island, and other named
British Possessions. *
And in 1887, Congress, in a minatory spirit of retalia- U. s. assumes-
.. •     i  /-n        i t   .     ,i ,. i»       •  i j. to interpret
tion against Canada, and in the assumption or. a right Treaties by a
to interpret a Treaty, as judge and party, in the absence retaliatory
of the other party to it, *f* passed a law authorizing the
President, in certain eventualities, to deny to Canadian
vessels, their masters and crews, any entrance into
the waters, ports, or places within the United States,
except in cases of distress, etc., and to prohibit the
entry of Canadian fresh or salt fish, or any other
product of, or other goods coming from, the Dominion
of Canada into the United States. J
Gf the early policy of discrimination, the McKinley McKinley
and Dingley tariffs may be cited as the more modern Tariffs* ^
developments; for they contain many provisions
framed to hamper Canadian trade with the United
States. The latter tariff puts a high duty on Canadian timber imported into that country,—to which is
tacked an automatic rider, that if  Canada § should Automatic
S , i j   j. l j.i_ 'n   i rider against
impose an export duty on saw-logs, or other specified Canada,
timber product, going from it into the United States,
* Ibid, v. 3, p. 602. The law was modified in 1823, and repealed
in 1830.
fAliquis non debet esse judex in proprid causd, quia non potest esse
judex et pars. Co. Lit. v. 1, p. 15. See Canada Sessional Papers
(1878), p. 63.
X United States Statutes at Large (1887), v. 24, c. 339, p. 475. No
occasion for the enforcement of this law has ever been given by
§ The words in the United States Statute are : " any country or
dependency." 76
British and
Canadian carrying trade.
law of 1892
respecting St.
Mary Canal.
favours ocean
the prescribed high duty on Canadian timber should
be increased by an additional sum, equal to the amount
of such Canadian export duty.
An attempt to prejudicially affect the British and
Canadian carrying trade with the United States was,
by an amendment, surreptitiously introduced into the
Dingley tariff", by which a discriminating duty of ten
per cent.—in addition to the high customs duties therein
imposed—should be levied on all goods carried into the
United States by the Canadian railways or British
ships. Owing to the bungling phraseology used, the
obnoxious amendment failed of the purpose since
avowed by its promoters.*
Again, in 1892, another retaliatory law was added
to the samples of unfriendly legislation against Canada
which are contained in the United States Statutes at
Large, by which the President was authorized, whenever the passage of United States vessels through the
Canadian Canals was | made difficult or burdensome
by the imposition of tolls or otherwise," to suspend or
prohibit the free passage of Canadian vessels through
the United States canal at Sault Ste. Marie. It
appeared that the Canadian Government had, for some
years, imposed a uniform rate of toll for all vessels
passing through the Canadian Canals; but in 1892, in
order to encourage the ocean carrying trade, had
allowed a rebate of tolls on freight, limited to farm
products only, going to Montreal for ocean export; *f"
but not on freight of similar farm products, or other
merchandise, going to Toronto, Kingston or to any
intervening Canadian port on Lake Ontario, or the St.
* United States Statutes at Large, v. 30, p. 151.
+ See Statutes of Canada (1892), Part 1, page c. 77
Lawrence  River, between  the  Welland   Canal  and^« S. and
\r     j.      i        t     • n j.- i     •    Canada non-
Montreal ; placing  all non-ocean exporting ports  in ocean ports
Canada and the United States on an equal footing.not affected'
Thereupon the President issued a Proclamation imposing a toll of twenty cents per ton on all kinds of
freight carried by Canadian vessels passing through
the St. Mary Canal. The following year the Canadian Government, so as to avoid all possible ground of
complaint, readjusted the canal tolls, and imposed a
uniform rate of ten cents per ton on all freight passing Canada's
through  the  Canadian  Canals.    The United  States conciliatory
° ...      action.
thereupon revoked the Proclamation of 1892 imposing
tolls on Canadian freight. *
These unneighbourly and retaliatory laws of Con-No similar
,•■• i •    v  •  n       cc   i.*        j.1      j.     i   laws in Great-
gress, restricting and prejudicially atlecting the trade Britain or
fo Canada with the United States, have, happily, no Canada,
duplication, or counterpart, in the legislation, or in the
Executive acts, of either Great Britain or Canada.
The acts of armed hostility, and international and Effect of these
commercial unneighbourliness, on the part of some ofactson  y
the dominant politicians of the United States, instanced Canadians.
above, and others, have, at the times, naturally roused
a spirit of irritation and resistance, even a threatened
lex talionis, in Canada, which has severely tried the
forbearance and political discretion of the resourceful
and courageous people who, for over a century, have
maintained untarnished the supremacy and honour of
Great Britain over one-half of the North American continent.    With such experiences it would, perhaps, be
wrong to deny that sometimes a stricter policy, or perhaps a subtile form of retaliation, has been adopted by
* United States Statutes at Large, v. 27, pp. 267, 1032, and 1865. 78
Reasonable    Canada—partly as a means of reasonable self-defence,
and partly to suggest a re-consideration of their un-
Goldenrule friendly policy towards their northern neighbour.*
■Canada.        But the many suggestions for reciprocal trade, and
attempts at treaty-making, show that the offer of the
golden rule has been more frequently made by Canada,
than by the United States.
Accounta- The moral accountability of the United States to
Dihty of the . J .
U. S. to other their own people, as well as to foreign nations, (and
nations. ^-g musfc *3e considered as applying to Canada as
well), necessarily involves some restraint on their
political actions,—that, as a nation, they may so deal
with another nation as they would reasonably expect
Political acts such other nation should deal with them.*f*    Political
another        actions of a nation tending to degrade another, and the
nation s        studied neglect of that courtesy of expression which
,Governments are wont to observe in discussing international  questions,  mar  diplomatic intercourse, and
induce petty international disputations, and mean reprisals, where the nation affected is not prepared to submit
* As an illustration the reader may be referred to the Crown Timber Regulations (1898), authorized by the Ontario Act, 61 Vict.,
c. 9, requiring all pine cut on Crown Lands to be manufactured into
timber in Canada,—lately decided by the High Court of Justice to
be within the legislative authority of the Province of Ontario. Precedents for such legislation will be found in many of the early English Statutes. An Act, 50 Edward 3, provided that " no woollen
cloths shall be carried into any part out of the realm of England,
before they be fulled" (c. 7). And another Act, 3 Henry 7, e. 11,
reciting the complaint of the poor men of the crafts of shearmen,
fullers, and other artificers, provided that woollen cloths should not
be carried out of the realm before they be barbed, rowed, and shorn.
+ •• A State is a moral person, capable of obligations as well as
rights. No acts of its own can annihilate its obligations to another
State."   Woolsey's International Law, p. 52. 79
to the degradation, or discourtesy.* Among such actions Minatory and
... .      retaliatory
may be classed minatory laws authorizing a prospective laws,
retaliatory policy towards another nation, or certain of
its inhabitants ; laws authorizing a threatened increase
•of duties on all, or classes of, importations from it; laws
impairing its treaty agreements, or claiming to exercise
•control within disputed territorial boundaries; or automatic laws contingent upon possible fiscal eventualities,
or a probable political policy, of such other nation. Hostilities of
An audience of sedate on-looking nations would doubt- diplomacy.
less consider such laws as the hostilities of a tactless
diplomacy,—even  though   the   nation  so  legislating
should  boast of its fiscal  smartness, and  legislative
•cunning, and diplomatic strategy.
Much of the former political unfriendliness to Great Hostility to
t-..,. t * i.iiJii • e Great Britain
Britain was largely nurtured by the slow poison ot in tj. s. school
political hostility, and which is, even yet, daily imbibed books,
by the American youth from their school and history
books; and may excuse the declaration made a few
years  ago   by   some Anglophobe   newspapers   that
I American hatred of England is deep-rooted and un- "American
slakable."   That hostility was also aggravated by the England."
machine politicians who controlled the | lobbies," and U. S. politics
1 rings," or § bosses," or | trusts," and other base powers lobbies rings^
so graphically described in Professor Bryce's American0*0'
-Commonwealth.^    The simulated patriotism of these prior
irresponsible elements has sometimes beguiled a certain't.e<l
1 HI I ° patriotism.
percentage of citizens of sympathetic and humane
instincts, who, knowing better, and desiring friendliness and better trading facilities and diplomatic rela-
* See Lord Clarendon's references in Hansard's Debates, v. 79,
3?. 117.
+ v. 2, chapter 63, et seq. 80
Some U. S.
friendly to
estimate of
the U. S.    ,
tions with Great Britain and Canada, when, inflamed
by some alleged British, or Canadian wrongdoing, or
fancied selfishness, have allowed the demagogue power
of political unrighteousness to sway their fair-minded
consciences, and reverse their friendly instincts. A
larger percentage, however, have been influenced, some-
by Canadian relationships and intimacies, or commercial advantages; others inspired by a sympathetic
interest in the graver duties of their political responsibilities, and a beneficent civilization, have endeavoured,,
by the promotion of philanthropic movements, to-
improve and elevate -the moral character and political
manhood of their own nation, and also to maintain
sympathetic and neighbourly relations in such interests with the kindred people of Canada.
Canada's neighbourship enables her to appraise at
their true value, the spasmodic political impulses which,
until recently, found vent,—sometimes in pleasant,,
though vapourous, platitudes about kinship and language and political freedom ; and sometimes in blustering and effervescent hostility to Great Britain. For
the moment, the American orator's "tail twisting"
performances, or political fireworks, against " our
eternal enemy, Great Britain," that " proud, arrogant
and grasping enemy," formerly aroused sympathetic
cheers from a portion of the American community; but
in Canada they were generally regarded as political
circus exhibitions, or gaudy bathos. The forest-axe,,
the plough-share, and the sowing and reaping-machines,,
are Canada's indigenous and cherished weapons; and
armed with them, and skilled in their use, she challenges
her neighbour-nation to a strenuous and scientific war-
fare for supremacy on the farm-battle-fields of nature. 81
Nor has Canada's Daughter-love been weakened by Prj*^n
the former indifference of Mother Britain ; or the chil- and chilling;
ling advice, given in 1873 by the leading organ of °Pinions'
English public opinion—patriotically rebuked by Lord
Tennyson in the 1 Idylls of the King,"—that  Canadians,  the  men  of the  I true  North,"  should   take
up  their  freedom, seeing  that  "the  days  of   their
apprenticeship were over;" or the oft-published apocryphal  prophecy  that in the event of a  dilemma,
Canada, owing to her far closer commercial relations
with the United States, would not be long in making
up her mind to sacrifice her British association; * or
the philosophic sneer at the " official mendacity " of the
Canadian Constitution in declaring itself to be | similar
in principle to that of the United Kingdom." *f*
Canadian public men know  that  the  dominating Canada's
policy of the people of Canada has been to patiently and responsibil-
wisely   subordinate   these   unneighbourly   and   un- 11to. Great-
motherly experiences to the allegiance and political
responsibility they owe as one of the nation-communities of their great Imperial Empire.   And they sincerely
desire that the sentiments of a late distinguished and
fair-minded American Secretary of  State,—who had Canadian
so eloquently and tersely expressed the Canadian ideas dealing are1"
of a neighbourly and healthful international relation- expressed by-
ship,—would influence the Government of the United
States in its dealings with the Government of Canada:
I The gravity of the present condition of affairs," wrote
the late  Mr.  Bayard,   "between our two countries
* Thorold Rogers's Political Economy (1876), p. 255. " Every man
of sense, whether in the Cabinet or out of it, knows that Canada
must at no distant period be merged in the American Republic."
Edinburgh Review (1825), v. 42, p. 290.
+ Dicey's Law of the Constitution (1886), p. 153,
11 82
demands entire frankness.    I feel that we stand 'at
the parting of the ways.'   In one direction I can see
well-assured, steady, healthful relationship, devoid of
petty jealousies, and filled with the fruits of a prosperity arising out of a friendship cemented by mutual
interests, and enduring, because based upon justice.
International On the other, a career of embittered rivalry staining
based upon    our l°ng frontier with the hues of hostility, in which
justice. victory means the destruction of an adjacent pros
perity, without gain to the prevalent party;—a mutual
physical and moral deterioration which ought to be
Duty on both abhorrent to patriots on both sides."     *     *     "It
sides to re-     .   , ,       m . . . ,      .
move causes   behooves therefore those who are charged with the
of difference. gafe con(jrict of the honour and interests of the respective countries, by every means in their power, sedulously to remove ail causes of difference." *
Not in eloquently phrased sentiments have the
people of the United States recently realized what
the diplomatic friendship of Great Britain has been
worth to them in a trying international emergency.
Their  great and powerful Motherland, without any
of Great
Britain for
-the U. S.
* Hon. T. F. Bayard to Sir C. Tupper, 31st May, 1887, Canada
Sessional Papers (1888), No. 36. Similar sentiments had been
uttered by a Canadian Statesman, nearly thirty years before in
these words : " Captious objections, fancied violations and insults,
should be discountenanced ; and above all there should be an
abstinence from attributing to either nation or people, as a national
feeling, the spirit of aggression. Every friend of humanity would
Tegret further misunderstanding between Great Britain and the
United States. The march of improvement which is to bring the
broad regions of North America, between the Atlantic and Pacific
within the pale of civilization, is committed, by Providence, to
-their direction. Fearful will be the responsibility of that nation
■which mars so noble an heritage." Hon. J. H. Gray (1858), cited in
Moore's History and Digest of International Arbitrations, v. 1, p. 478* 83
suggestion from them, but under the inspiration of a
long existing, and most real, sympathy for her kindred
in  the  United  States, diplomatically intervened on
their behalf, and effectively suppressed a threatened Intervention
intervention of certain European powers against them ish^American
in their recent war with Spain; and she did it quietly, War, 1898.
without flaunting the potentiality of her Sea Power,
or the influence of her diplomacy, and without any
expectation of national gratitude.    But her unasked
and imperial beneficence, and diplomatic intervention,
can never be forgotten;  for these potential acts  of
regal friendship for her | kin beyond the sea" have
now become part of the war-history of the Republic.
The moderating effect of this friendly diplomatic Diplomatic
intervention of Great Britain, and the conciliatory ad-^efggg*xons
vances of Canada, seemed to have made propitious the
opening of diplomatic negotiations between the United
States and Canada in 1898.    The people of both communities seemed desirous of adjusting on equitable To adjust all
terms, all causes of previous international misunder- i erences-
standings, or friction, and of agreeing upon a reciprocally advantageous policy respecting the trading relations,  and   carrying  privileges  of  each   country;—Modification
necessarily involving  mutual modifications of someoffiscal
details in their respective fiscal systems.
But the auspicious anticipations of the people of
Great Britain and Canada of an adjustment of international differences, have unfortunately been jeopardized
by the inexplicable position taken by the United States inexplicable
Commissioners on the Alaska Boundary question, mE08-**0?,0,   •"
refusing to refer that question to Arbitration on similar question,
terms to those imposed on Great Britain by the United 84
Condition of
cession of
Mr. Bayard's
forgotten in
U. S. treatment of the
States in the Venezuelan reference;* and in seeking
to vary that precedent prejudicially to Canada by "a-
marked and important departure from the rules in
that boundary reference," by requiring that the Arbitrators should be debarred from considering, or holding,
that the Russian Treaty of 1825 was applicable to the
cases of towns or settlements on tide-water which may
have been settled in recent years under the authority
of the United States; but that all such towns should be
conceded to be within the territory and jurisdiction of
the United States at the date of the proposed Treaty,—
practically requiring, as a condition of arbitration, their
forced cession to the United States, and that " an effect
should be given to the United States' occupation of
land in British territory which justice, reason, and the
equities of the case do not require."
The position thus taken shows that, neither the
inspiration of Mr. Bayard's sentiments, nor the more
friendly relations with Great Britain, have moderated
the policy of the United States, respecting the Canadian
rights in the Alaska boundary dispute. Both Americans and Canadians are given to bargaining. But in
view of the United States appetite for Canadian
territory, it is a simulated parade of indignation to
charge Canada with "demanding a slice of American
territory."    How  much of the territory in dispute
* The terms of the Venezuelan Arbitration were: that adverse
holding,—such as political control, as well as actual settlement,—
for fifty years, should make a good title; and that the Arbitrators*
should give effect to claims resting on other grounds or principles
valid in International Law, which were not in contravention of the
fifty years limitation ; and should also give effect to equities arising
out of the occupation of either nation's territory by the subjects or
citizens of the other. 85
belongs to either nation, depends upon the meaning of
the Treaty with Russia of 1825, which defined the Russian
Treatv of
width of the lisiere de cdte, or Russian strip of territory 1825 defines
on the coast.    The Treaty placed the line of demarca- l1™1^*™™
tion on the summit of the mountains parallel to the
coast, but declared that wherever their summits should
prove to be at a distance of more than ten marine
leagues (thirty miles)from the Ocean* the limit should
be formed by a line parallel to the windings of the
coast, and should never exceed (ne powrra jamais) the
distance often marine leagues therefrom.    The phrase
which determines how the extreme width of the Russian Controlling
strip of coast is to be measured over the inland terri- Treaty,
tory is 1 the distance of ten marine leagues from the
Ocean; " and the phrase which directs how the boundary line is to be drawn on that inland territory is
"by aline parallel  to  the windings  of  the   coast'
along that from which the measurements are to be
made, i.e., the ocean;—subject to the negative  and Negative
. words,
imperative  restriction  that such  line   "shall  never
exceed the distance of ten marine leagues therefrom." +
* Before the Treaty was signed, each Power submitted a draft
Treaty, providing, in negative words, that the strip of coast should
not exceed in width ten marine leagues from the sea,—the British
expression being depuis la mer, and the Russian du bord de la mer.
But the Treaty reads—"de VOcean,"—an improved and more accurate expression,—equivalent to the term "the high seas,"—which
are free and open to all nations, "no nation having territorial title to
them ;"—and therefore a term which does not include and is wholly
inapplicable to "littoral I or other " territorial," or " inland," seas,
such as rivers, inlets, bays, or harbours of a certain limited width,
defined by International Law. The articles describing the Treaty-
boundaries of Alaska are given in Appendix No. 1.
+ The negative forms of expression used in the draft treaties were :
British.—" The strip of coast shall not in any case extend in width 86
Meaning of
These references to the provisions of the Treaty would
seem to make it reasonably clear to judicial minds
that the measurements of the listere9 or strip of Alaska
coast, are not to be made from the head waters of its
rivers or inlets, but from the Ocean.*
By the Award in the Behring Sea, or Fur Seal,
Arbitration between Great Britain and the United
States, made in 1893, it was unanimously decided
that the ocean referred to in the Treaty of 1825
between Great Britain and Russia, meant the Pacific
Ocean, -f*
The terms "coast" and "shore" in International Law
<«wf»and include not only the natural territorial coast or shore
washed by the ocean, but also an artificial coast, or
shore, or sea-front, formed by a straight line drawn
from headland to headland, across the mouth of each
river, inlet or bay, of a certain width recognized by
International Law, or Treaty. And such river, inlet
or bay, is designated and recognized as a territorial or
littoral sea; and its national character is reckoned from
such straight line, or artificial sea-front, and seaward to
Meaning of
shore at
mouths of
rivers and
a distance of a marine league therefrom.
from the sea towards the interior beyond the distance of ten marine
leagues." Russian.—"The strip of coast shall not have in width
upon the continent more than ten marine leagues measured from the
shore of the sea." "Every statute (and the same rule applies to
treaties), limiting anything to be in one form, includes in itself a
negative." Viner's Abridgment, v. 15, p. 540. Negative words in
a statute (or treaty) are to be construed as imperative. Rex v.
Leicester, 7 Barnwell and Cress well's Reports, 12.
* See General Cameron's Report on the Alaska boundary, (1885).
+ Fur Seal Arbitration Papers, U. S., v. 1, p. 78.
X " The littoral sea, or territorial water, is reckoned to begin from
a straight line drawn between the headlands, shoals, or islands, which„
form the mouth or entrance of the closed bay or river, and between 87
It is conceded by both Great Britain and the United
States, that the Treaty-boundary line between Canada
and Alaska, crosses all the rivers which flow from the
interior of Canada through Alaska and into the Pacific
Ocean,—either where the 1 summit of the mountains,"
nearest the coast, becomes the boundary, or where the
"ten marine leagues from the ocean," determines it.
And that the opposite shores of the coast territory
along these rivers, as well as the beds of all such
rivers, within the lisiere, or strip of coast, described in
the Treaty, belong to the territorial domain of the
United States in Alaska,* And it will doubtless be
conceded that the term j Ocean," as interpreted-by the
International Award, does not include, and is therefore
wholly inapplicable to, any such water-channels as are
ordinarily known or designated as rivers or inlets, or
bays, or other channels, of a certain limited width.
The maps of Alaska indicate that along its coast
there are several water-channels coming from Canada,
which are designated, apparently at random, as
rivers, inlets, channels, and canals,—the latter designation being perhaps rather inapt. The term I canal"
ordinarily means an inland navigation, and includes:
(1) canals proper, i.e., artificially constructed water-
channels; (2) tidal canals, i.e., those affected by the
Alaska  ;
At summit
of mountains;
or at ten
leagues fromt
does not include inlets,
Maps- of
"Canal" anv
inapt term.
Its ordinary-
which the breadth is not more than ten sea miles." Netherlands
Manual of International Law, by Jan Helenus Ferguson, v. 1, p.
397. The " coast sea," to a distance of a marine league, is territory.
Woolsey's International Law, p. 80.
* The Congress of Vienna of 1815, in opening the Rhine and other
rivers to and from the sea, declared that " Navigation for the purposes of trade is not to be interdicted to any person on such navigable
waters as traverse the territories of several States ; this being conditioned on their conformity to local police regulations." 88
Four classes  rise and fall of tides: (3) rivers rendered navigable by
- of canals.        ' &
weirs to increase their depth of water, and locks for
the ascent and descent of vessels; (4) to which may
be added the class described as " ocean ship canals," i.e.,
canals connecting oceans or seas, such as the Suez
Canal, between the Mediterranean and Red Seas; the
Panama Canal, and the Nicaragua Canal, between the
Atlantic and Pacific Oceans, and the Kaiser Wilheim,
or Holtenau, Canal, between the Baltic and North Seas.
Lynn Canal       But the international dispute between the United
the dispute.   States and Canada is whether the Lynn Canal is an
inlet, or a territorial, or littoral, sea, or tidal river; high
sea, or ocean.    If it is an inlet, or a territorial, or littoral,
sea, or tidal river, then for thirty miles inland from
a straight line drawn across its sea-front or mouth at
its junction with the ocean, it is part of the territo-
U.S. prece-    rial domain of the United States ; and the precedents
Canada's       °^ ^ne United States will sustain the claim of Great
claims. Britain and Canada to the latter's sovereignty over its
upper territorial waters, beyond that distance,* and
* In 1793, the United States declared that Delaware Bay was part
of the territory of the United States, and that the capture of a
British ship within its waters by a French ship-of-war, was unlawful.
See American State Papers, Foreign Relations, v. 1, p. 148; and 1
Kent's Com., p. 30. Delaware Bay is 10.5 nautical miles wide from
headland to headland at its junction with the Atlantic Ocean, widening to twenty-five miles inland, and is sixty miles long. Chesapeake
Bay, which is also said to be claimed by the United States as a
territorial, or closed sea, is 12.7 nautical miles wide from headland
to headland at its mouth. Lynn Canal, which is claimed by
Canada as an inland water-channel and as equivalent to "inlet" or
" tidal river " as defined by International Law, has islands at its junction with the ocean, and the several water channels at its mouth are
respectively 4f, If and 1J nautical miles wide from shore, or island,
headland to headland, widening to about ten miles inland, north of
the islands. 89
apparently International Law will sanction no other
But it is difficult to harmonize the arguments of U. S. con-
the United States respecting the Lynn Canal, with theaJg^^nts
recognized rules of International Law, and their own
precedents,—according to which it must be classed as
a territorial, or closed, sea, and therefore " territory."
One of these arguments is that the expression " wind- As to
ings (sinuositfe) of the coast," entitles the United
States to measure the Alaska coast-strip from the
salt- water shores of Lynn Canal, and not from its
mouth or ocean front. The United States also claim
•dominion over the whole length and width of its
water-covered soil-bed, by virtue of its being a closed
sea. But the claim and the argument are mutually
destructive of each other ; for if the Lynn Canal is, as
admitted, a closed sea, then by International Law, its
soil-bed and the waters over it,—like the soil-bed and
waters of a river,—come within the definition of, and
are subject to the same rules as, land and territorial
domain.* The United States, however, claim to be
•entitled to the sovereignty over the whole territorial
area and waters of Lynn Canal, and also over thirty
marine miles of additional inland territory.
Since the unpropitious close  of the Negotiations, Charge that
it  has also  been  charged  that  Canada has  tacitly allowed TJSS.
allowed the United  States  to administer the  " dis- to govern,
puted territory" as their own, and that  their citizens have been permitted to settle there for the last
twenty-five or thirty years; a charge which cannot,
in view of the actual facts, be sustained.    The United
* "That arm or branch of the sea which lies within the fauces
terra,, where a man may reasonably discerne between shore, is, or at
least may be, within the body of the county."   Lord Hale's De Jure
Maris, Part 1, c. 4.
12 90
U. S. proceedings
Before any
U. S. settlement Canada
urged a
boundary set
U. S. Congress failed
to produce
action in
U. S. refusal
to appoint
Convention of
1892 to settle
States obtained possession of Alaska on the 18th October, 1867, and the necessary legislation to carry the
Treaty of cession into effect, was passed on the 27th
July, 1868. In July, 1871, Canada acquired the
adjoining territory; and in March, 1872, before any
settlement had been made by citizens of the United
States in the now disputed territory, efforts were made
by Canada and Great Britain, to induce the United
States to agree to a delimination of the boundary line
according* to the terms of the Treaties of 1825 and 1867,
But the Secretary of the United States while " perfectly satisfied of the expediency of such a measure,
feared that Congress might not be willing to grant the
necessary funds." His fear was realized, for Congress
failed to make any appropriation. Canada, however,
at once bound herself to bear one-half of the British
expenditure for determining and marking out the
Further efforts by Great Britain and Canada were
made yearly from that date; and in 1876, in a lengthy
report by the Prime Minister of Canada, it was stated
that " notwithstanding every effort made by the Canadian Government to obtain a complete, or even a partial, delimination of the boundary line between Alaska
and British Columbia, that question still remains
undealt with in consequence of the refusal of the Government of the United States to agree to the measures
necessary for appointing a Joint Commission." *
After further yearly " continual wearying " by Canada, a Treaty-Convention between the United States
and Great Britain was signed at Washington on the
22nd July, 1892, for the delimination of the whole
boundary line from the Prince of  Wales Island to
* Canada Sessional Papers (1878), No. 12"», p. 60. 91
Mount St. Elias, in which, after a recital acknowledging the fact of the unsettled boundaries and a diplomatic desire for the removal of all differences in regard
to the Treaty-boundary, it was declared that:—
" The High Contracting Parties agree that a coinci- Joint survey
-ii ••i. / t_j?        i- i •     to be made,
dent or joint survey (as may be  found in  practice
most convenient) shall be made of the territory adjacent to that part of the boundary line of the United
States of America and the Dominion of Canada dividing the territory of Alaska from the Province of
British Columbia and the North-West Territory of
Canada, from the latitude of 54° 40' north to the point Whole boun-
where the said boundary  line  encounters the 141st     yto!)e
J surveyed.
degree of longitude westward from  the  meridian of
Greenwich, by Commissions to be appointed severally
by the High Contracting Parties, with a view to the
ascertainment of the facts and data necessarv to the
permanent delimitation   of   said   boundary   line   in Boundary to*
accordance with the spirit and intent of the existing taWitanf
Treaties in regard to it between Great Britain and intent of the
Russia, and between the United States and Russia."
After providing for certain details, the Convention And to be
proceeds:  " The High Contracting Parties agree that aftei'commis-
as soon as practicable after the report or reports of thesion reports.
Commissions shall have been received they will proceed to consider and establish the boundary line in
question."    No conditions, similar to those recently No conditions-
sought to be imposed upon Canada, appear to have been imPosed.
thought of, or suggested, when this Treaty-Convention,
and the subsequent one extending   it to  the  31st
December, 1895, were signed.
A further admission of an unsettled boundary was Treaty of
made in a supplementary Treaty-Convention between     '* 92
Provision as
to Mount
.St. Elias.
an acknowledgment of
title of U. S.
the United States and Great Britain, signed on the 30th
January, 1897, for the survey of the 141st meridian
from Mount St. Elias to the Frozen Ocean, reciting the
Treaties of 1825 and 1867, and that the location of the
said meridian involved "no question of the interpretation of the aforesaid Treaties," it was thereby agreed
to appoint Commissioners and other officers for such
survey.    It further provided that:—
" Inasmuch as the summit of Mount St. Elias,
although not ascertained to lie in fact upon said 141st
meridian, is so nearly coincident therewith that it may
conveniently be taken as a visible landmark whereby
the initial part of said meridian shall be established, it
is agreed that the Commissioners, should they conclude that it is advisable to do so, may deflect the most
southerly portion of said line so as to make the same
range with the summit of Mount St. Elias, such deflection not to extend more than twenty geographical
miles northwardly from the initial point."
These acknowledgments of an unsettled international
boundary line between the territories of Canada and
Alaska; and these solemn treaty-agreements to ascertain the facts and data necessary to the " permanent delimination of the said boundary line in accordance with
the spirit and intent of the existing Treaties in regard to
it" were diplomatic and national admissions of a doubtful and unascertained title in the United States to the
territory adjacent to the actual boundary; and must
therefore be justly conceded to be a conclusive refutation of the recent charge of Canada's tacit acquiescence
in any alleged settlements of the United States; and
must also be taken to be conclusive and binding admissions by the Government of the United States that there 93
were, up to 1897, no rights arising from settlements in No»U. S.
t. t i • rights
any part of the disputed territory, based upon any claimed prior
acquiescence of Canada;  or, if there were, that any t0 1895*9'-
claims or rights respecting them, were then waived by
the United States; or were too insecure and too unsubstantial to warrant any claim in the preceding diplomatic
discussions or any reservation of them in the Treaties.*
It may be further observed that the action of the U. S. claim
High Commissioners of the United States is also all °   oun ary"
the more inexplicable in view of the condemnation of
the boundary line claimed by the official maps issued
by the Government of the United States, pronounced
in the Despatch of a former Secretary of State to the Condemned
V\xt TT    Q
American   Minister to  England,  and   subsequently secretary of
presented to Congress, in which he said :— State.
" The line traced on the Coast Survey Map of Alaska,
No. 960, of which copies are sent to you herewith, is
as evidently conjectural and theoretical as was the
mountain summit traced by Vancouver. It disregards
the mountain topography of the country, and traces a
line on paper about thirty miles distant from the general contour of the coast. The line is a winding one,
with no salient landmarks or points of latitude or
* The settlements about Lynn Canal have been as follows : "In
1884, a log shanty was built at Dyea by a trader. In 1888, another
was built at Skagway. No further settlements were made at either
place until about 1897. The first known grants of land there were
made by the United States in 1898. In the Yukon territory, a survey made in 1896 placed the Town of Forty-mile, which had been
assumed to be west of the 141st meridian and on United States territory "within Canada, and therefore subject to Canadian jurisdiction and the laws of the Dominion of Canada." The survey was
acquiesced in, and no question of prior settlements there under the
authority of the United States, was raised. See Bulletin U. S.
Department of Labour, 1898, p. 355. 94
British con-
offer in 1899
longitude to determine its position at any point.    It is
in fact such a line as it is next to impossible to survey
through a mountainous region, and its actual location
there by a surveying commission would be nearly as
much a matter of conjecture as tracing it on paper
U.S.Despatch with a pair of dividers." *    His Despatch closed by
ingaccord      urgmg ^ne expediency of appointing an international
with the       commission, at the earliest practicable day, to fix upon
1825. a conventional  boundary line in substantial accord
with the presumed intent of the negotiations of the
Anglo-Russian Convention of 1825.
The proposal of Great Britain and Canada to refer
the dispute to arbitration on the terms of the Venezuelan precedent, indicated a conciliatory effort to secure
an equitable and final decision on the boundary dispute ; when, had such a proposal been made by the
United States, it could have been effectively urged
that it was entirely inconsistent with the positions
diationof assumed by each of the High Contracting Parties
in previous diplomatic negotiations, and was also an
unwarranted departure from the precise terms of the
Treaty-Conventions of 1892-95-97. But the non-acceptance of the British and Canadian proposal, unless on
Involved a    dishonorable conditions which involved a surrender of
forced cession
of Canadian   Canadian rights, and a condonation of a territorial usur-
territory.      pation, must have come as a diplomatic surprise; for it
meant a national repudiation of the unconditional and
unfettered terms under which the United States had,
in those Treaty-Conventions, solemnly pledged their
national faith to Great Britain, to deliminate and estab-
Treaty boun- lish " the boundary line in accordance with the spirit
govern. &     an^ intent of the existing  Treaties in regard to it
* Mr. Bayard to Mr. Phelps, 20th November, 1885.
U. S. condi-
1892-5-7. 95
between Great Britain and Russia, and between the
United States and Russia." The rejection of such surrender-conditions, and the consequent withdrawal of
the British and Canadian Commissioners from the
unfinished  Diplomatic negotiations, were eminently British close
, ,       ,. *, of negotia-f
justifiable, and were the only dignified courses that tions justifi-
could have been adopted. * able*
A further impediment to a mutual reference to arbi- Further
tration, arose on the anomalous proposal of the United by U. S.
States Commissioners to refer the dispute to six jurists,
instead of three, as proposed by the British Commissioners.    The British Commissioners were unable to
agree to this counter proposition, because it did " not
provide a tribunal which would necessarily, and  in Tribunal not
the possible event of differences of opinion, finally dis- fin^Sari y
pose of the question."
Finding, therefore, that neither the precedent of the Dead-lock in
Venezuelan boundary arbitration, nor any reasonable neg0
compromise of the Alaska boundary dispute, nor any
equitable  concessions within the recognized rules or
principles of International Law, would be admitted or
conceded by the Commissioners for the United States,
* The special qualities of American diplomacy—referred to in other
portions of this work—may be further illustrated by the following
■comments by an American writer on Mr. Seward's despatch excusing
the Trent affair in 1861. " He glided lightly over the difficult places,
substituting for thorough argument here a plausible assumption;
-there a crafty implication. He assumed an analogy where there was
none, and then used his false assumption to support his contention.
That his argument was unsound, was a tribute to his marvellous
skill in • making bricks without straw.' It was a political masterpiece. But what he accomplished was one of the greatest feats of
the war-period ; and has rightly given him lasting fame and honor
in American history." Life of William H. Seward, by Frederick
Bancroft (1900), v. 2, p. 242 et seq. 96
Surrender of
rights and
Alaska boundary referred
to their
Responsibility to U. S.
declined by
Great Britain.
except such as involved a surrender of Canadian territory, and a treachery to the British subjects settled
there, and therefore a degradation of British and Canadian sovereignty; and that a dead-lock had been reached,,
the British Commissioners were of the opinion that no
useful  end  would be served by further pressing, at
the present time, the Negotiations, and that they must-
refer the matter to their government.*    The responsibility  and reproach therefore of allowing the diplomatic differences and unneighbourly disputes between
the United States and Canada to continue, and perhaps become more irritating, or festering, sores in their
international relations, must hereafter rest upon the
United States Commissioners, and not upon Canada
nor the British Commissioners. -(•
After discussing the constitution of the proposed
arbitral tribunal, and the selection of an umpire from
the American continent,—which was declined by the
British Commissioners owing to " the long maintained
Agreement of    * An agreement, or modus vivendi, for a Provisional boundary line
1899 excludes about the head of the Lynn Canal, was entered into at Washington
Canada from  on tne 20th October, 1899 j but the line gives Canada no access to the
'   head waters of Lynn Canal except over territory claimed to belong,
to the United States, and thereby bars the free access of Canadians
to the ocean ; and may possibly, in future negotiations, be claimed to-
operate as a waiver of Canada's rights to the shores and territory
above the " ten marine leagues from the ocean;" or as a condonation
of an adverse occupation and political control by the United States
of Canadian territory. The agreement is given in Appendix No. 2.
*f* Lord Clarendon in a debate in the House of Lords on the Oregon
question, after referring to the predilection the United States had of
acquiring what did not belong to them, said : "If their government
did consent to negotiate it would seem that it could only be upon,
the basis that England was unconditionally to surrender her pretensions to whatever might be claimed by the United States."'
79 Hansard's Debates, p. 117. 97
and recently asserted policy of the United States
towards the other countries on that continent," and
which would not offer to Great Britain the guarantee
of impartiality, the Protocol records that the Commissioners of the United States then " proposed that the
Joint High Commission should proceed to a determi- U. S. desired
nation of the remaining subjects of difference named the°matters
in the original Protocol.   They regarded it as unwise nearly
to further defer the adjustments so nearly concluded
after full consideration. Several subjects were so far
advanced as to assure the probability of a settlement.
If, then, all differences, except one, could now be
adjusted, would it not be a most commendable advance
in neighbourly friendship ? Could not our respective
governments be trusted to settle the principal remaining difference by direct negotiations ?
" The United States Commissioners further regretted Regret
the suspension for any long time of the negotiations ^SSS&f
in view of the progress already made in solving the
differences. They therefore urged that the Joint High
Commission should advance to a conclusion their
negotiations upon the remaining subjects as early as
"The British Commissioners replied that all such British defer
questions should be deferred until the Boundary ques- Jj^kJ81111*11
tion had been disposed of, either  by agreement, or dispute is
reference to arbitration.    The manner in which they Arbitration,
would be prepared to adjust some of the other important matters under consideration, must depend, in their
view, upon whether it is possible to arrive at a settlement of all the questions which might at any time
occasion acute controversy, and even conflict."*
* Protocol LXIIL, Canada Sessional Papers (1899), No. 99.
13 98
British and
Sir J. Macdonald on
U. S. unfriendly
policy, and
British indifference, to
at British
modern Colonial policy.
And thus, to the great disappointment and regret
of Great Britain and Canada, the United States enticed
to shipwreck the halcyon anticipations of a fair adjustment of international differences between the United
States and Canada by the siren lure of an elusive and
wily diplomacy ; and then offer a tabula ex naufragio
of protocol sorrows.
The late Sir John A. Macdonald, who represented
Canada in the negotiations for the Treaty of Washington,.in 1871, realized the historic continuity of the
•unneighbourly policy of the United States, as well as
the British indifference to Canadian interests, when he
thus wrote to one of his colleagues : " The American
Commissioners have found our English friends of so
squeezable a nature, that their audacity has grown
beyond all bounds." And he added : " Having made
up my mind that the Americans want everything,
and will give us nothing in exchange, one of my chief
aims now is to convince the British Commissioners of
the unreasonableness of the Yankees." Disheartened
by an unsympathetic response to his efforts, he then
wrote, 11 am greatly disappointed at the course taken
by the British Commissioners. They seem to have
only one thing in their minds—that is, to go to England with a Treaty in their pockets,—no matter at
what cost to Canada." * This British indifference to
Canadian interests has, in the many instances recorded
in the preceding pages, encouraged the United States
in assuming an aggressive policy against Canada's
international rights and territorial sovereignty.
Since Sir John Macdonald wrote, thanks to the
sturdiness of Canadian statesmen, Great Britain has
given up presenting to Canada a pantomime of diplo-
* Life of Sir John A. Macdonald, by Joseph Pope, v. 2, p. 105. 99
matic negotiations with the United States, from which
the digiti clamosi of Canada's political interests were
conspicuously absent.   And now her earlier policy of British
.      . .,    j.     ,,    indifference
indifference to Colonial interests has, happily for the now an
Empire, become an estranged sentiment. And the^*rt^ed
modern Imperialism which is sowing the seeds of a
Greater United Britain, will, it is hoped, hereafter
bring forth Empire-fruit not to be repented of. May
it also produce a beneficent harvest of peaceful and
neighbourly international relations between Great
Britain, Canada and the United States. But that
Canada's share therein shall be assured and real, it Canada s
share m dip-
should be an essential condition in any Empire-com-lomatic nego-
pact for the more complete consolidation of our Greater y g W1
United Britain, that in all diplomatic negotiations,
and Treaty-adjustments with the Government of the
United States, Canada, as the only nation-community
of Greater Britain -most affected by the international
policy of her neighbour nation, shall have an advisory
and, in matters affecting Canadian interests, a controlling diplomatic influence.*
But in the evolution of any compact for the better
consolidation of an Empire federation, the advocates of
this modern Imperialism must not forget that while,
externally, and to foreign nations, the Imperial Crown BritishCrown
<j:L    j* l        j      'l      i?j.i        ti  constitution-
represents the sovereignty and unity ot   the  whole auy tne game
Empire, and is also internally acknowledged to repre-!n,British ,
l i«i   •• i        :      .. islands and
sent, constitutionally, the supreme regal authority over colonies.
* «<
Daring 1889, a resolution was brought forward in the Canadian
House of Commons in favor of giving the Dominion the right of
negotiating and concluding Treaties. It was generally felt that the
object sought for was the power to conclude Treaties with the United
States.    * It is a fact that British Diplomacy has cost Canada
dear."   Problems of Greater Britain, by Sir C. W. Dilke, M.P., pp.
63-4. 100
Colonial subjects practically governed
by the Island
subjects of
the Crown.
axioms of
British Constitution.
every portion of that Empire; yet a constitutionally
illogical usage prevails by which the Crown of the colonial nation-communities is suzerain and subordinate to
the Crown of the island nation-communities; and that
the colonial subjects of the Crown are thereby practically subordinated to the island subjects of the Crown.
This present controlling and suzerain authority of
the Crown of the island nation-communities, over the
Crown of the colonial nation-communities,—necessary
in their early development,—is a question which must,
some day, loom persuasively, or imperiously, for mutual
and thoughtful re-consideration on the Imperialistic
horizon; for equal rights of nationhood, and of citizenship, and equal authority in Parliamentary government, for all the subjects of the Crown, wherever on
British soil their homes may be, are fundamental
axioms of the British Constitution. *
It may be interesting to the modern advocates of " Imperial
Federation" to quote here a clause from the Royal Instructions
under the Sign Manual of King George III., dated the 12th April,
1778, authorizing the Commissioners for Quieting Divers Jealousies
in the North American Colonies, appointed under the Statute 18
George III. c. 13, to propose Colonial Representation in the Imperial
Parliament, and which may be considered as bringing the great
question of " Imperial Federation" for the first time into the
domain of practical politics :—"If it should be desired that our
subjects in America should have any share of Representation in our
House of Commons, such a proposal may be admitted by you, so far
as to refer the same to the consideration of our two Houses of Parliament ; and it will be proper that in stating such a proposition,
the mode of Representation, the number of the Representatives,
which ought to be very small, and the considerations offered on
their part, in return for so great a benefit, should be precisely and
distinctly stated." Another clause proposed a Federation of the
American colonies "for the better management of the general concerns and interests of the said colonies, and to preserve and secure
their connection with Great Britain." MS. State Papers, Public
Record Office, tit. America and the West Indies, v. 299. 101
(Pages 85-89.)
Articles III. and IV. were copied into"the Treaty of 1867, between Russia
and the United States.
Article III.
The line of demarcation between the possessions of the High Contracting
Parties upon the coast of the continent and the islands of America to the northwest, shall be drawn in the manner following :
Commencing from the southermost part of the island called Prince of Wales
Island, which point lies in the parallel of 54° 40' north latitude, and between the
131st and the 133rd degree of west longitude (meridian of Greenwich), the said
line shall ascend to the north along the channel called Portland Channel, as
far as the point of the continent where it strikes the 56th degree of north
latitude ; from this last-mentioned point, the line of demarcation shall follow
the summit of the mountains situated parallel to the coast, as far as the point
of intersection of the 141st degree of west longitude (of the same meridian) ;
and, finally, from the said point of intersection, the said meridian-line of the
141st degree, in its prolongation as far as the Frozen Ocean, shall form the
limit between the Russian and British possessions on the continent of America
to the north-west.
Article IV.
With reference to the line of demarcation laid down in the preceding Article,
it is understood;
1st. That the island called Prince of Wales Island shall belong wholly to
2nd. That wherever the summit of the mountains which extend in a direction parallel to the coast, from the 56th degree of north latitude to the point
of intersection of the 141st degree of west longitude, shall prove to be at a
distance of more than 10 marine leagues from the Ocean, the limit between the
British possessions and the line of coast (la lisiere de cdte) which is to belong
to Russia, as above mentioned, shall be formed by a line parallel to the windings of the coast, and which shall never exceed the distance of 10 marine
leagues therefrom.
Article VI.
It is understood that the subjects of His Britannic Majesty, from whatever
quarter they may arrive, whether from the Ocean, or from the interior of the
continent, shall for ever enjoy the right of navigating freely, and without any
hindrance whatever, all the Rivers and Streams which, in their course towards
the Pacific Ocean, may cross the line of demarcation upon the line of coast (sur
la lisiere de la c6te) described in Article III. of the present Convention. 102
Hay-Tower Agreement signed on the 20 th October, 1899.
(Page 96.)
'• It is hereby agreed between the Governments of the United States and
of Great Britain that the boundary-line between Canada and the territory of
Alaska in the region about the head of Lynn Canal shall be provisionally fixed
as follows, without prejudice to the claims of either Party in the permanent
adjustment of the international boundary:—
"In the region of the Dalton Trail, a line beginning at the peak west of
Porcupine Creek, marked on the Map No. 10 of the United States' Commission, December 31, 1895, and on sheet No. 18 of the British Commission,
December 31, 1895, with the number 6500; thence running to the Klehini
(or Klaheela) River, in the direction of the peak north of that river,
marked 5020 on the aforesaid United States' Map, and 5025 on the aforesaid
British Map; thence following the high or right bank of the said Klehini
River to the junction thereof with the Chilkat River, a mile and a-half, more
or less, north of Klukwan,*—provided that persons proceeding to or from
Porcupine Creek shall be freely permitted to follow the trail between the said
creek and the said junction of the rivers into and across the territory on the
Canadian side of the temporary line wherever the trail crosses to such side,
and, subject to such reasonable Regulations for the protection of the revenue
as the Canadian Government may prescribe, to carry with them over such part
or parts of the trail between the said points as may lie on the Canadian side of
the temporary line, such goods and articles as they desire, without being
required to pay any customs duties on such goods and articles j and from said
junction to the summit of the peak east of the Chilkat River, marked on the
aforesaid Map No. 10 of the United States' Commission with the number
5410, and on the Map No. 17 of the aforesaid British Commission with the
number 5490.
" On the Dyea and SkagWay Trails, the summits of the Chilkoot and White
Passes. +
" It is understood, as formerly set forth in communications of the Department of State of the United States, that the citizens or subjects of either
Power, found by this arrangement within the temporary jurisdiction of the
other, shall suffer no diminution of the rights and privileges which they now
•' The Government of the United States will at once appoint an officer or
officers, in conjunction with an officer or officers to be named by the Government of Her Britannic Majesty, to mark the temporary line agreed upon by
the erection of posts, stakes, or other appropriate temporary marks.
'' It shall be understood that the foregoing Agreement is binding upon the
two Governments from the date of [the] written acceptance of its terms."
*See Provisional Boundary, 1899, marked (1) on Map, Appendix No. 3.
t See Provisional Boundaries, 1899, marked respectively (2) and (3) on the
same Map.
in APPENDIX No. 3.
(Pages 85-89.) _^J
(1), (2) and (3) indicate the localities of the three Provisional Boundaries n
described in the Agreement of the 20th October, 1899, in Appendix No. 2.       


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