For December 1 1814, John Quincy Adams writes in his diary:
December 1st. At half-past ten this morning we had our meeting, previous to proceeding to the conference with the British Plenipotentiaries. Mr. Gallatin had prepared a minute of the alterations and amendments which we wish to obtain to the British projet, and an article for restoring the British rights to navigate the Mississippi, and our right to the fisheries within the British jurisdiction. This minute and article were to be left with the British Plenipotentiaries. We agreed upon the mode in which we should proceed in the conference, and at twelve o’clock went to their house. As soon as we were seated at the table, Lord Gambier said he was happy that we had now met again, and that it was with much fairer prospects of success than when we had met last ; that as we had left to them the option of the place of meeting, they had proposed their own house, supposing it equally agreeable to us. We had really thought it no mark of civility in them to name their own house, nor was it even conformable to our agreement at the commencement of the negotiation, which was, that we should meet alternately at the houses of each other. Our last conference had been at their house, and, regularly, this should have been at ours. Of this, however, we took no notice, and I declared our hearty concurrence in the sentiment of satisfaction expressed by Lord Gambier at the improvement in the prospects of a successful termination to the negotiation since our last meeting. I then observed, that in our note of yesterday we had stated the motives upon which we had requested the present conference ; that we had agreed to many of the alterations proposed by them to the projet of a treaty which we had sent to them; that we had consented to waive the articles to which they had objected, with the exception of part of one of them, which we still wished to discuss, and with respect to which we had enclosed to them a provision made by an act of Congress at the commencement of the war. There were some of the alterations proposed by them, however, to which we could not agree. We wished to obtain explanations concerning some others, and also to fill the blanks of times and places in several of the articles. The mode of proceeding which we had thought it would be proper to adopt was, to take the projet and refer in regular order to the passages to which we objected, stating successively the ground of our objections.
This was accordingly done. The first objection we made was to an alteration in the first article, respecting the restoration of territory, places, and possessions taken during the war; our projet had made it universal without exception. The British proposed alteration was, to limit the restoration to territories belonging to one party and taken by the other. I stated that our objection to the alteration was, that it made one party the judge whether any territory taken by it did or did not belong to the other. It would enable either party to refuse giving up at its option any portion of the possessions of the other taken by it, merely by saying, This does not belong to you. It was contrary to the tenor of the articles by which a provision was made for settling all the questions of disputed boundary, and contrary to the general basis which had been agreed to of the state before the war, substituting instead of it present possession, upon which we had declined to treat, and which they had explicitly abandoned.
Mr. Goulburn and Dr. Adams insisted upon retaining the alteration. Goulburn said that he did not know of any part of the territory .taken by either party which it could hold as not belonging to the other, except the islands in the Bay of Fundy, which, as we had written to our Government, one of them had said they considered as belonging to Great Britain as clearly as Northamptonshire ; that there could be no reason for restoring that which must ultimately be adjudged to them, and if it should finally prove otherwise, the possession could not be long retained, as in the next article the final decision of the disputed question was provided for.
Mr. Gallatin said that our objection was, that the alteration instead of settling disputes only laid the foundation for a new one. Suppose the treaty concluded. Each party will immediately demand the delivery of possession of the places taken
from it. The other refuses to deliver this or that place, and says, This does not belong to you. A new dispute is thus started upon the very execution of the treaty. Nor did it apply merely to the case of Moose Island. There were several islands in the river and Lakes in the same predicament.
Mr. Goulburn said he did not know that any of the islands in the river or Lakes had been taken by either party from the other during the war.
I observed that as to the question of right, our opinions and theirs would of course not be the same, and in ours, the island of Grand Menan, in the Bay of Fundy, a larger and more valuable island than any of those they so confidently claimed, was as much ours as the city of New York.
Mr. Goulburn said that the mass of evidence they had upon the subject was immensely voluminous ; that he had been prepared at one time to enter upon the discussion of the question, but there could be no use now in battling it upon points for which another mode of settlement was agreed upon.
Dr. Adams said that the objection to the alteration was one which might be applied to every stipulation of every treaty. It was not to be presumed that a Government agreeing to a stipulation would not carry it into effect with good faith ; that he did not see that the retaining possession of what belonged to them came at all within the principle of uti possidetis ; that the status ante bellum could mean only the state as of right, and that the restoration of possession to be required could only be of rightful possession.
I said that possession was in its nature matter of fact, and not of right ; that when therefore the restoration of possession was to be stipulated, the state before the war was mere matter of fact. The right of course would remain the same as before the war, without stipulation; and if possession taken during the war was retained, it could only be on the principle of uti possidetis, and not on that of status ante bellum.
Mr. Bayard said it was not necessary to suppose bad faith or a disposition to elude the execution of the treaty on either side. The alteration would give rise to a new dispute, with the utmost fidelity and sincerity on both sides. One party claims the delivery of territory taken from it, and which it sincerely and honestly believes to belong to it. The other refuses to deliver it, believing with equal sincerity and confidence that it belongs to itself. Here is immediately a new dispute. Suppose the case that the place belongs to neither of the parties. Suppose the case that it belongs to both. On either of these suppositions you have immediately a new dispute. The restoration to the state existing before the war is a plain and simple principle, a matter of fact, about which no dispute can arise.
No reply was made to these remarks, which Mr. Bayard afterwards told me he made with particular reference to the settlement on Columbia River. But, as the British Plenipotentiaries manifested no signs of yielding, I proposed to pass on to the next article.
This related to the periods fixed for the cessation of hostilities and the restoration of prizes taken at sea. We had in our original projet followed in form the precedents of the Treaty of Peace in 1782, but had assumed the signature of the treaty as the date from which the terms for the cessation of hostilities in the different latitudes were to commence. They had substituted the exchange of the ratifications as the date, and we had agreed to this alteration. We had agreed in our own meetings to propose to shorten the periods for the cessation of hostilities.
I observed that I hoped we should finally agree upon a treaty, of the ratification of which there would be no doubt, so that it might be considered as a mere formality. The peace would then be made six weeks or two months before it could be ratified. We wished that no time might be lost, and we had therefore shortened all the terms that of the Channel and the North Seas particularly, within a period even shorter than might be necessary for the exchange of the ratifications to be known. The conclusion of the treaty would, however, be known, and we supposed it might be more for the advantage of Great Britain than for that of the United States that the period of hostilities should be abridged in this* quarter.
They said that wherever the advantage might be, the orders to the commanders of ships and other officers could not be issued until the exchange of the ratifications was known. The ratification of the treaty would indeed be in England a mere formality, for they had authority to bind their Government; their full power promising to ratify what they should do. They hoped there would be no doubt of an immediate ratification in America, but our full power did not positively promise it.
Mr. Gallatin said it could not, because the ratification of treaties was by our Constitution reserved to the President and the Senate, and required the consent of two-thirds of the latter.
We finally took the article which they had drawn up on this subject, my colleagues observing that we should perhaps on examination find it preferable to our own.
The next articles were those stipulating the appointment of commissioners to ascertain and settle the boundary lines. We had proposed the appointment of three sets of three commissioners, following exactly the precedent of those for ascertaining the St. Croix River in Mr. Jay’s treaty. The British projet proposes only two commissioners, and if they, one being ap pointed by each Government, should not agree, then to leave the decision to a friendly sovereign. We agreed to this altera tion. They had, however, drawn an entire new article in lieu of our third, and they had begun with a quotation from the Treaty of Peace of 1783. The quotation was incomplete, and presented no distinct sense. Mr. Goulburn observed that there had been an omission of one line in the copy sent us, and Lord Gambier said he had observed it in making out his copy of the projet I had also observed it, and we were prepared to supply the omission ; which was done. But the British projet had included in the description of the disputed boundary only certain islands in the Bay of Fundy, which Mr. Gallatin thought was intended to exclude from the judgment of the commissioners Moose Island, that being not in the Bay of Fundy, but in the Bay of Passamaquoddy ; and connected with the determination to restore only the territory belonging to us, he supposed was meant not only to keep possession of Moose Island, but to place it without the powers of the commissioners to decide upon the title to it. The British Plenipotentiaries, however, immediately agreed to the alteration proposed by Mr. Gallatin, including the islands in the Bay of Passamaquoddy, and that of Grand Menan, in the Bay of Fundy.
This removed one of the great remaining obstacles to the peace. Then came the question about filling the blanks of the places where the commissioners were to meet in the first instance. Mr. Goulburn said they had thought of filling two of the blanks with places in the British Dominions, and two within the United States. They mentioned St. Johns for the third article, and Montreal for the fourth. Mr. Gallatin proposed St. Andrews, in the Province of New Brunswick, for both, as being the spot nearest and most convenient to the scene of operations. It was agreed to be inserted ; Lord Gambier remarking that Mr. Gal latin, by his local knowledge of that country, knew best what was the fittest place ; and Dr. Adams asking whether St. Andrews was a considerable place. The blank in the fifth article was filled with Albany. The eighth article was that on which there will be the greatest obstacles in coming to an ultimate agreement. It is the boundary west from the Lake of the Woods. In the course of the correspondence, the British Plenipotentiaries had proposed the line of Mr. King’s unratified convention of 1803, the shortest line from the lake to the Mississippi. We had proposed a line agreed to in the proposed convention of 1807, between Messrs. Monroe and Pinkney and Lords Auckland and Holland. The British Government now propose a line due west, in the 49th parallel of latitude, with an additional clause, that the British shall have the free navigation of the Mississippi, and free access to it through our territories generally, with their goods, wares, and merchandise. I observed that we proposed to strike out this clause ; that it consisted of two parts : first, the navigation of the river for his Britannic Majesty’s subjects, and secondly, the access to it for them through our territories. With regard to the first, the right was stipulated for British subjects by the Treaty of Peace of 1783. We had stated in our note, sent with our projet, that we considered that Treaty of 1783 as bearing a peculiar character, and that it was not liable, like ordinary treaties, to be abrogated by a subsequent war; that the American Government had considered the rights and liberties secured by it to the people of the United States as requiring no new and additional stipulation, and had therefore not authorized us to bring them into discussion. To this part of our note the British Plenipotentiaries had made no reply. We knew not whether their silence was owing to the acquiescence of their Government in the principle we had advanced, or to some other cause.
Lord Gambier said, No, no.
But, continued I, the British right to navigate the Mississippi stands on the same foundation the Peace of 1783. We admit that if our principle is good to us for the fisheries within the British jurisdiction, it is good for the British right to navigate the Mississippi within our jurisdiction. If the British Government so considers them, there is no need of a new stipulation in either case. But by asking a new one for the Mississippi, it was to be inferred that Great Britain considered the rights on both sides to be forfeited by the war, and she now asked a new right to navigate the Mississippi without offering for it any equivalent. If a new engagement was necessary for one of the privileges, it was necessary for the other, and we had prepared an article which we would leave with them to restore both. As to their access to the Mississippi through our territories, if the right to navigate the river was granted, access to it by one road must be allowed ; but it would be obviously necessary to guard it by a provision for the collection of duties ; and if a general access, without limitation of place, was to be granted, we thought a reciprocal right would be necessary for the people of the United States through the British territories to the St. Lawrence, and the free navigation of the river.
This observation, that they were asking for a new right, without offering an equivalent, appeared to take the British Plenipotentiaries altogether by surprise.
Mr. Gallatin told them that if they considered the remainder of the article, the 49th parallel of latitude, an equivalent, he wished them to understand that we attached no importance to it at all. It would, indeed, be a convenience to have the boundary settled, but the lands there were of so little value, and the period when they might be settled was so remote, that we were perfectly willing that the boundary there should remain as it is now, and without any further arrangement. If it was agreeable to them, we had no sort of objection to striking out the whole of the eighth article.
Mr. Goulburn said that as by agreeing to the west line, in the latitude 49, they gave up all claim to any possessions on the Mississippi, it was necessary to stipulate for the right of navigation on the river, and for access to it through our territories. It was of no use to them at present, but it might eventually be of some advantage to them. It was a provision for futurity rather than for the present time.
I said that whatever it might be, it was a privilege to which their Government appeared to attach considerable importance, and they could not expect it would be granted by the United States without an equivalent.
Goulburn said they had no authority to agree to our article, and they must refer it to their Government. The whole treaty must be taken together, and the equivalent must be found in the concessions of Great Britain in the other articles. Dr. Adams expressed the same idea, and Lord Gambier said, Yes, yes, yes.
Mr. Gallatin told them that there was no concession of Great Britain in any of the other articles. We had insisted upon the mutual restoration of territory, and had invariably declined treating on any other basis. We should by that only get back our own, and we should restore to Great Britain what was hers. As to all the articles for the settlement of boundary, they might be mutually useful, but we had no particular interest in them.
We had accepted the mode of settlement proposed by Great Britain instead of our own, and we were quite willing, if she desired it, to strike out every one of those articles, but we could not admit this unexpected claim without some equivalent.
Mr. Goulburn said they had informed us in their first note that the claim would be made.
Mr. Gallatin replied they had; but that in their note of 21st September, to which we had since been expressly referred by them, as containing the whole of their demands, it was not mentioned.
We now passed to the article concerning indemnities.
I remarked that we had consented to waive all claims for them that have arisen subsequent to the commencement of the war, excepting for vessels which had been in British ports when the war commenced and had been there seized. We had sent them a copy of a section of an act of Congress, passed immediately after the declaration of war, allowing British vessels then in the ports of the United States six months to depart ; and our instructions authorized us to say that the permission had been extended, in the execution of the law, even beyond the time limited by its letter.
Dr. Adams and Mr. Goulburn have but a feeble control of their temper. Adams began by an argument, as if he had been in Doctors’ Commons. He said that he had examined the section of the law we had sent, and it appeared to him not to make out a case for a claim near so strong as our note had stated it ; that it only gave authority to the President to give passports to British vessels to depart. Why, this was no more than what the King had power to do in England at all times; that America had declared war against England, and of course all American vessels in the English ports had been seized. At first they had only laid the hand upon them, and kept them sequestered until it was seen what was the result of the pro posals made for peace by Admiral Warren. Afterwards they were all condemned, and a claim for indemnities for them was not only without foundation, but utterly unprecedented among nations.
I replied that it was not merely the law, but the execution of the law, and the extension of the indulgence granted by it, even beyond the time expressed in it, which we considered as warranting a claim to a similar liberality on the part of Great Britain ; that so far from its being unprecedented, we consid ered it as the common custom of nations. I had not at hand any of the writers on the Law of Nations, but I felt the utmost confidence that the principle was sanctioned by them; that there was scarcely a treaty between commercial nations in modern times that did not contain it as a stipulation, and it was generally viewed as a stipulation merely in affirmance of the acknowledged principle; that with regard to the manner of carrying on a war, neither the law nor the usages of nations recognized any distinction of right founded on the declaration of war, whether made by the one party or by the other.
Dr. Adams insisted that there was a material difference in the consideration which party declared the war ; and renewed the assertion, that a demand for indemnity on such a ground was utterly unprecedented ; that when war was declared by one party, its ships in the ports of the other were of course seized. They were sometimes kept, until it was seen whether peace would be restored, and if not, they were condemned; and if the other party did otherwise, it mattered not, whether from liberality or any other motive, it gave no claim whatsoever either for indemnity or for restoration.
Mr. Goulburn said that he remembered having received at the time a letter from one of his friends in Liverpool, informing him that he had seized an American vessel there.
Mr. Gallatin asked what was done with such vessels when they were condemned ; whether they were considered as droits of the Admiralty, or given to the seizors.
Goulburn and Adams said a portion of them was given to the seizor. Both of them appeared to be nettled at the question. Goulburn said that it would be humiliating and disgraceful in Great Britain to allow any such claim for indemnity; that it was requiring her to pay a shameful tribute for peace ; that it had been demanded by France in the war of 1756, and refused.
Mr. Gallatin said that was for vessels taken at sea before the war was declared.
Goulburn said it was demanded by France in the last war, and had been the pretext upon which the English prisoners in France, when the war commenced, had been detained as prisoners.
Mr. Gallatin said, looking earnestly at Goulburn, “Has it not been considered throughout Europe that this measure of Bonaparte’s was not only extremely harsh in its character, but unquestionably in violation of the law of nations ?”
Goulburn hesitatingly said, ” Yes ; but it was done on the pretence of retaliation for our detention of French property.”
” Thus,” said I, ” our claim in the present instance is at least not unprecedented.”
“Ay,” said Goulburn, with a coarse and insulting tone; “but we do not admit Bonaparte’s construction of the law of nations.”
Mr. Gallatin afterwards told me that his object in asking the last question was to obtain an admission from them that the detention of the British in France was in violation of the law of nations, because the principle applied to their own conduct in detaining as prisoners the American seamen they had im pressed before the war.
We had now gone through the topics on which we had asked the conference, and recurred to the points upon which we had not agreed. Mr. Gallatin mentioned the Mississippi and the fisheries, and gave Mr. Goulburn the article he had prepared
for restoring them.
Mr. Bayard said there was also the restoration of Dr. Adams, thinking that he meant the restoration of the ships, or property afloat, which they had said was liable to immediate seizure on the breaking out of the war, while they admitted that by the usage of nations in modern times all other property was respected, did not give Mr. Bayard time to finish his sen tence. ” No ; as to that,” said he, ” we shall not refer it to our Government we reject it at once.” Mr. Bayard said he had meant the restoration of territory. “Oh! … ay! … ah!” said Adams ; ” yes, we can refer that.”
‘ We may as well refer it,” said Goulburn, ” as we must refer the other ; but, gentlemen, we cannot say that our Government will not require something else. We had hoped we could have concluded without referring again to our Government. We mean to say, that we were now authorized to sign the treaty as we sent it to you.”
” We made no question,” said Mr. Clay, ” that you would sign the treaty, if we agreed to it in your own terms.”
” Yes,” said Goulburn, very awkwardly ; ” but we only regret the delay, and should have wished to have concluded now. We wish the delay may not be imputed to us.”
As we rose to take leave, Dr. Adams expressed a wish that what had passed between us might be kept at present entirely secret, and that if we should sign a treaty, it should be not mentioned or disclosed to any person for at least twenty-four hours, that their messenger might have a start of that time, to carry the first news to the Government. He said there was so
much commercial speculation upon our transactions, that it was very desirable nothing should be said by any of us to give advantages to any person. ” Because, you know,” said he, ” one does not know to whom it might be attributed.” We assented to these observations ; but Mr. Bayard afterwards said he thought they were very indelicate. Perhaps they were ; but, after Milligan’s expedition to England in August, and the circumstances attending it, I thought them quite excusable.