264 APPENDIX TO BRITISH COUNTER CASE. 



at which an article had been proposed and agreed to, that the line 

 should be from the most northwestern point of the Lake of the 

 Woods, to the 49th parallel of latitude, and from that point, due west, 

 along and with the said parallel, as far as the respective terrtories 

 extend in that quarter. And with that article was coupled another, 

 as follows : 



It is agreed by the United States that his majesty's subjects shall have, at all 

 times, free access from his majesty's aforesaid territories, by land or inland 

 navigation, into the aforesaid territories of the United States, to the river Mis- 

 sissippi, with the goods and effects of his majesty's said subjects, in order to 

 enjoy the benefit of the navigation of that river, as secured to them by the 

 treaty of peace, between his majesty and the United States, and also by the 

 third article of the treaty of amity, commerce, and navigation, of 1794. And 

 it is further agreed that his majesty's subjects shall in like manner, and at all 

 times, have free access to all the waters and rivers falling into the western side 

 of the river Mississippi, and to the navigation of the said river. 



This negotiation was suspended, by a change of the British min- 

 istry, and was not afterwards resumed. But the following observa- 

 tions upon the two articles, contained in a letter from Mr. 

 159 Madison to Messrs. Monroe and Pinkney, of 30th July, 1807, 

 show how far Mr. Jefferson, then President of the United 

 States, had authorised those commissioners to accede to them. 



Access by land or inland navigation from the British territories, through tlie 

 territory of the United States to the river Mississippi, is not to be allowed to 

 British subjects, with their goods or effects, unless such articles shall have 

 paid all the duties, and be within all the custom house regulations, applicable 

 to goods and effects of citizens of the United States. An access through the 

 territory of the United States to the waters running into the western side of 

 the Mississippi, is under no modification whatever to be stipulated to British 

 subjects. 



Such then was the state of things in relation to this interest in 

 question, at the time when the war of 1812 broke out; and at the 

 negotiation of Ghent, the same question of boundary again occurred 

 for adjustment. The right of the British to a line from the Lake of 

 the Woods to the Mississippi had never been renounced; and, at the 

 last negotiation between the parties, four years after the United 

 States had acquired Louisiana, and with it all the Spanish rights 

 upon the Mississippi, the British government, in assenting to take 

 the 49th parallel of latitude, as a substitute for the line to the Missis- 

 sippi, had expressly re-stipulated for the free navigation of the river, 

 and free access to it from our territories; to both of which Messrs. 

 Monroe and Pinkney had been explicitly authorised to accede. 



Under this state of things, it had never been admitted by the 

 British, nor could we maintain against them by argument, even that 

 the Mississippi river was within our exclusive jurisdiction; for so 

 long as they had a right by treaty to a line of boundary to that river, 

 and consequently to territory upon it, they also had jurisdiction upon 

 it: nor, consequently could the instructions of loth April, 1813, had 

 they even been still in force, have restricted the American commis- 

 sioners from making or receiving a proposition, for continuing to the 

 British the right of navigating the river, which they had enjoyed, 

 without ever using it, from the time of the treaty of 1783, when the 

 United States had received, by cession from them, the right of enjoy- 

 ing it jointly with them. 



Bearing in mind this state of things, we are also to remember, that, 

 in the conference of 19th August, 1814, and in the letter of that date, 



