ROYCE] - TREATY OF APRIL 27, I86r. 355 
In 1762 it was transferred to Spain, but was by Spain retroceded to 
France by the treaty of 1800. In 1803 the Emperor Napoleon, fearing 
a war with England and the consequent occupation of the territory by 
that power, ceded it to the United States, but the boundaries of the 
cession were very indefinite and, according to Chief Justice Marshall, 
were couched in terms of “studied ambiguity.” 
It seems to have been consistently claimed by the United States up 
to the treaty of 1819 with Spain that the western boundary of the 
Louisiana purchase extended to the Rio Grande River. The better 
opinion seemed also to be that it followed up the Rio Grande from the 
mouth to the mouth of the Pecos, and thence north. By that treaty, 
however, all dispute concerning boundaries was adjusted and the unde- 
fined boundary between Louisiana and Mexico was settled as following up 
the course of the Sabine River to the Red River; thence by the course of 
that river to the one hundredth meridian, thence north to the Arkansas 
River and following the course of that river to the forty-second parallel, 
and thence west to the Pacific Ocean. By many the position was taken 
that this treaty was a nudum pactum, and Henry Clay, when it was 
under consideration in the Senate, introduced a resolution into the 
House of Representatives declaring that Texas, being a part of the 
territory of the United States, could not be ceded by the treaty making 
power to a foreign country, and that the act was not only unauthorized 
by the Constitution but was void for another reason, viz, that this 
cession to Spain was in direct conflict with clear and positive stipula- 
tions made by us in the treaty with France as to the disposition of the 
whole territory. Under this theory of the invalidity of the treaty of 
1819 the Cherokees claimed the extension of their boundary west of the 
one hundredth meridian. - But, assuming the insufficiency of this claim, 
they still fortified their title upon another proposition. Mexico sue- 
ceeded, by the consummation of her independence, to all the territorial 
rights of Spain in this region. Texasin turn achieved her independence 
of Mexico in 1836. In March, 1845, Texas became one of the United 
States, and thus, according to the Cherokee assumption, ‘ the United 
States again came into possession of that portion of the outlet west of 
100°, if indeed it had ever been a part of the territory claimed by Mexico 
and which by Texan independence she was forced to relinquish. The 
United States, more than a year after she had come into possession of 
the country now claimed by the Cherokees, reaffirmed the grant te them, 
that is to say, by the treaty of August 17, 1846.” 
The “ portion of the outlet west of 100°” here alluded to is the strip 
of country lying between Kansas and Texas from north to south and 
between the 100° and New Mexico from east to west. By act of 
Congress of September 9, 1850,! the east boundary of New Mexico was 
fixed at 103° west longitude and the north boundary of Texas at 36° 
1 United States Statutes at Large, Vol. IX, p. 446. 



