262 APPENDIX TO BRITISH COUNTER CASE. 



of the right of both to make the stipulation, the boundary line itself 

 being in substance a concession of territory to the river, and down 

 its middle to latitude 31, which Grer.t Britain was undoubtedly com- 

 petent to make, and the United States to receive. Now, the UnLed 

 States having received the cession and the boundary, with the right 

 to navigate the river with the express condition that the navigation 

 of the river should forever remain free and open to British subjects, 

 and having expressly assented to that condition, without considering 

 it as infringing upon any right of Spain; they could not, consistently 

 with good faith, by acquiring afterwards "the right of Spain, allege 

 that this acquisition absolved them from the obligation of the prior 

 engagement with Great Britain. There is, indeed, in Mr. Russell's 

 letter, a hesitating argument to that effect; the odious character of 

 which is but flimsily veiled by its subtlety. The United States had 

 always insisted upon their right of navigating the Mississippi, by 

 force of the article of the treaty of 1783, and had obtained the ac- 

 knowledgment of that right from Spain herself, many years before 

 they acquired her territorial right by the purchase of Louisiana. 

 With what front, then, could an American negotiator have said, after 

 the latter period, to a British minister: You have no right to the 

 navigation of the Mississippi; for although, on receiving from you 

 a part of the river, we expressly stipulated that you should forever 

 enjoy a right to its navigation, yet that engagement was a 

 158 fraud upon the rights of Spain; and, although long before 

 we had acquired these rights of Spain, she had acknowledged 

 our right to navigate the river, founded upon this very stipulation of 

 which you now claim the benefit, yet I will now not acknowledge 

 your right founded on the same stipulation. Spain, no party to the 

 compact between you and me, after controverting it as infringing 

 upon her rights, finally acceded to its beneficial application to us, as 

 compatible with those rights. But we, who made the compact with 

 you, having now acquired the adverse rights of Spain, will not allow 

 you the beneficial use of our own compact. We first swindled and 

 then bullied Spain out of her rights, by this eighth article of the 

 treaty of 1783; and now, having acquired ourselves those rights, we 

 plead them for holding our engagement with you for a dead letter. 



This, and nothing more or less than this, is the substance of Mr. 

 Russell's argument to show, that perhaps the United States were, by 

 the acquisition of Louisiana, absolved from the obligation of the 

 eighth article of the treaty of 1783, even before the war of 1812. 



But, says Mr. Russell, the treaty of 1783 was made, under a belief 

 of both parties, that it would leave Great Britain with a portion of 

 territory upon the Mississippi, and therefore entitled to claim the 

 right of navigating the river. But the boundary line of the treaty 

 of 1783 was a line from the northwesternmost point of the Lake of 

 the Woods, due west to the Mississippi. And after the treaty of 

 1783, but before the war of 1812, it had been found that a line due 

 west, from the northwest corner of the Lake of the Woods, did not 

 strike the Mississippi. Therefore, continues Mr. Russell, Great Brit- 

 ain could claim no territorial right to the navigation of the river; 

 and therefore had no longer anj r claim to the benefit of the eighth 

 article of the treaty of 1783. 



To this it may be replied : First, that the British claim of right to 

 navigate the Mississippi, was not founded solelj on the territory 



