p. 2122N


No. 899.



“The facts which are material in the case, are such as relate to the discovery and possession of the Territory referred to, by the Subjects and under the authority of each nation. The principles are those which have been recognised by European Powers in similar transactions, and which of course ought to govern in the present one. It is by a correct view of the material facts, and the faithful application of these principles to them ; that the rights of each Nation will be established in this point, and thereby the Boundary between them.”


The principles which are applicable to the case, are such as are dictated by reason, and have been adopted in practice by European Powers in the discoveries and acquisitions which they have respectively made in the New World. They are few, simple, intelligible, and at the same time founded in strict justice. The first of these that when any European Nation takes possession of any extent of Sea Coast, that possession is understood as extending into the interior Country, to the sources of the Rivers emptying within that Coast, to all their branches, and the Country they cover, and to give it a right in exclusion of all other Nations to the same. (See Mémoire de l'Amérique page 116.) It is evident that some rule or principle must govern the rights of European Powers in regard to each other, in all such cases : and it is certain that none can be adopted, in those to which it applies, more reasonable or just, than the present one. Many weighty considerations show the propriety of it. Nature seems to have destined a range of Territory so described for the same society ; to have connected its several parts together by the ties of a common interest, and to have detached them from others. If this principle is departed from, it must be by attaching to such discovery and possession a more enlarged or contracted scope of acquisition ; but a slight attention to the subject will demonstrate the absurdity of either. The latter would be to restrict the rights of a European Power, who discovered and took possession of a new Country, to the spot on which its Troops or Settlements rested :

p. 2123

a doctrine which has been totally disclaimed by all the Powers who made discoveries and acquired Possessions in America. The other extreme would be equally improper : that is, that the Nation who made such discovery should, in all cases, be entitled to the whole of the Territory so discovered. In the case of an island, whose extent was seen, which might be soon sailed round and preserved by a few Forts, it may apply with justice ; but in that of a Continent, it would be absolutely absurd. Accordingly we find, that this opposite extreme has been equally disclaimed and disavowed by the doctrine and practice of European Nations. The great Continent of America, North and South, was never claimed or held by any one European Nation ; nor was either great Section of it. Their pretensions have been always bounded by more moderate and rational principles. The one laid down has obtained general assent.
This principle was completely established in the controversy which produced the War of 1755. Great Britain contended that she had a right, founded on the discovery and possession of such territory, to define its Boundaries by given latitudes in grants to individuals, retaining the Sovereignty to herself from Sea to Sea. This pretension, on her part, was opposed by France and Spain, and it was finally abandoned by Great Britain in the Treaty of 1763, which established the Mississippi as the Western Boundary of her Possessions. It was opposed by France and Spain on the principle here insisted on, which of course gives it the highest possible sanction in the present case.



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