Kitabı oku: «Thirty Years' View (Vol. II of 2)», sayfa 77

CHAPTER CIV.
BRITISH TREATY: NORTHWESTERN BOUNDARY: MR. BENTON'S SPEECH: EXTRACTS

The line from Lake Superior to the Lake of the Woods never was susceptible of a dispute. That from the Lake of the Woods to the head of the Mississippi was disputable, and long disputed; and it will not do to confound these two lines, so different in themselves, and in their political history. The line from Lake Superior was fixed by landmarks as permanent and notorious as the great features of nature herself – the Isle Royale, in the northwest of Lake Superior, and the chain of small lakes and rivers which led from the north of that isle to the Lake of the Woods. Such were the precise calls of the treaty of 1783, and no room for dispute existed about it. The Isle Royale was a landmark in the calls of the treaty, and a great and distinguished one it was – a large rocky island in Lake Superior, far to the northwest, a hundred miles from the southern shore; uninhabitable, and almost inaccessible to the Indians in their canoes; and for that reason believed by them to be the residence of the Great Spirit, and called in their language, Menong. This isle was as notorious as the lake itself, and was made a landmark in the treaty of 1783, and the boundary line directed to go to the north of it, and then to follow the chain of small lakes and rivers called "Long Lake," which constituted the line of water communication between Lake Superior and the Lake of the Woods, a communication which the Indians had followed beyond the reach of tradition, which was the highway of nations, and which all travellers and traders have followed since its existence became known to our first discoverers. A line through the Lake Superior, from its eastern outlet to the northward of the Isle Royale, leads direct to this communication; and the line described was evidently so described for the purpose of going to that precise communication. The terms of the call are peculiar. Through every lake and every water-course, from Lake Ontario to the Lake Huron, the language of the treaty is the same: the line is to follow the middle of the lake. Through every river it is the same: the middle of the main channel is to be followed. On entering Lake Superior, this language changes. It is no longer the middle of the lake that is to constitute the boundary, but a line through the lake to the "northward" of Isle Royale – a boundary which, so far from dividing the lake equally, leaves almost two-thirds of it on the American side. The words of the treaty are these:

"Thence through Lake Superior, northward of the isles Royale and Philippeaux, to the Long Lake; thence through the middle of said Long Lake, and the water communication between it and the Lake of the Woods, to the Lake of the Woods," &c.

These are the words of the call; and this variation of language, and this different mode of dividing the lake, were for the obvious purpose of taking the shortest course to the Long Lake, or Pigeon River, which led to the Lake of the Woods. The communication through these little lakes and rivers was evidently the object aimed at; and the call to the north of Isle Royale was for the purpose of getting to that object. The island itself was nothing, except as a landmark. Though large (for it is near one hundred miles in circumference), it has no value, neither for agriculture, commerce, nor war. It is sterile, inaccessible, remote from shore; and fit for nothing but the use to which the Indians consigned it – the fabulous residence of a fabulous deity. Nobody wants it – neither Indians nor white people. It was assigned to the United States in the treaty of 1783, not as a possession, but as a landmark, and because the shortest line through the lake, to the well-known route which led to the Lake of the Woods, passed to the north of that isle. All this is evident from the maps, and all the maps are here the same; for these features of nature are so well defined that there has never been the least dispute about them. The commissioners under the Ghent treaty (Gen. Porter for the United States, and Mr. Barclay for Great Britain), though disagreeing about several things, had no disagreement about Isle Royale, and the passage of the line to the north of that isle. In their separate reports, they agreed upon this; and this settled the whole question. After going to the north of Isle Royale, to get out of the lake at a known place, it would be absurd to turn two hundred miles south, to get out of it at an unknown place. The agreement upon Isle Royale settled the line to the Lake of the Woods, as it was, and as it is: but it so happened that, in the year 1790, the English traveller and fur-trader Mr. (afterwards Sir Alexander) McKenzie, in his voyage to the Northwest, travelled up this line of water communication, saw the advantages of its exclusive possession by the British; and proposed in his "History of the Fur Trade," to obtain it by turning the line down from Isle Royale, near two hundred miles, to St. Louis River in the southwest corner of the lake. The Earl of Selkirk, at the head of the Hudson's Bay Company, repeated the suggestion; and the British government, for ever attentive to the interests of its subjects, set up a claim, through the Ghent commissioners, to the St. Louis River as the boundary. Mr. Barclay made the question, but too faintly to obtain even a reference to the arbitrator; and Lord Ashburton had too much candor and honor to revive it. He set up no pretension to the St. Louis River, as claimed by the Ghent commissioners: he presented the Pigeon River as the "long lake" of the treaty of 1783, and only asked for a point six miles south of that river; and he obtained all he asked. His letter of the 17th of July is explicit on this point. He says:

"In considering the second point, it really appears of little importance to either party how the line be determined through the wild country between Lake Superior and the Lake of the Woods, but it is important that some line should be fixed and known. I would propose that the line be taken from a point about six miles south of Pigeon River, where the Grand Portage commences on the lake, and continued along the line of the said portage, alternately by land and water, to Lac la Pluie – the existing route by land and by water remaining common by both parties. This line has the advantage of being known, and attended with no doubt or uncertainty in running it."

These are his Lordship's words: Pigeon River, instead of St. Louis River! making no pretension to the four millions of acres of fine mineral land supposed to have been saved between these two rivers; and not even alluding to the absurd pretension of the Ghent commissioner! After this, what are we to think of the candor and veracity of an official paper, which would make a merit of having saved four millions of acres of fine mineral land, "northward of the claim set up by the British commissioner under the Ghent treaty?" What must we think of the candor of a paper which boasts of having "included this within the United States," when it was never out of the United States? If there is any merit in the case, it is in Lord Ashburton – in his not having claimed the 200 miles between Pigeon River and St. Louis River. What he claimed, he got; and that was the southern line, commencing six miles south of Pigeon River, and running south of the true line to Rainy Lake. He got this; making a difference of some hundreds of thousands of acres, and giving to the British the exclusive possession of the best route; and a joint possession of the one which is made the boundary. To understand the value of this concession, it must be known that there are two lines of communication from the Lake Superior to the Lake of the Woods, both beginning at or near the mouth of Pigeon River; that these lines are the channels of trade and travelling, both for Indians, and the fur-traders; that they are water communications; and that it was a great point with the British, in their trade and intercourse with the Indians, to have the exclusive dominion of the best communication, and a joint possession with us of the other. This is what Lord Ashburton claimed – what the treaty gave him – and what our Secretary-negotiator became his agent and solicitor to obtain for him. I quote the Secretary's letter of the 25th of July to Mr. James Ferguson, and the answers of Mr. Ferguson of the same date, and also the letter of Mr. Joseph Delafield, of the 20th of July, for the truth of what I say. From these letters, it will be seen that our Secretary put himself to the trouble to hunt testimony to justify his surrender of the northern route to the British; that he put leading questions to his witnesses, to get the information which he wanted; and that he sought to cover the sacrifice, by depreciating the agricultural value of the land, and treating the difference between the lines as a thing of no importance. Here is the letter. I read an extract from it:

"What is the general nature of the country between the mouth of Pigeon River and the Rainy Lake? Of what formation is it, and how is its surface? and will any considerable part of its area be fit for cultivation? Are its waters active and running streams, as in other parts of the United States? Or are they dead lakes, swamps, and morasses? If the latter be their general character, at what point, as you proceed westward, do the waters receive a more decided character as running streams?

"There are said to be two lines of communication, each partly by water and partly by portages, from the neighborhood of Pigeon River to the Rainy Lake: one by way of Fowl Lake, the Saganaga Lake, and the Cypress Lake; the other by way of Arrow River and Lake; then by way of Saganaga Lake, and through the river Maligne, meeting the other route at Lake la Croix, and through the river Namekan to the Rainy Lake. Do you know any reason for attaching great preference to either of these two lines? Or do you consider it of no importance, in any point of view, which may be agreed to? Please be full and particular on these several points."

Here are leading questions, such as the rules of evidence forbid to be put to any witness, and the answers to which would be suppressed by the order of any court in England or America. They are called "leading," because they lead the witness to the answer which the lawyer wants; and thereby tend to the perversion of justice. The witnesses are here led to two points: first, that the country between the two routes or lines is worth nothing for agriculture; secondly, that it is of no importance to the United States which of the two lines is established for the boundary. Thus led to the desired points, the witnesses answer. Mr. Ferguson says:

"As an agricultural district, this region will always be valueless. The pine timber is of high growth, equal for spars, perhaps, to the Norway pine, and may, perhaps, in time, find a market; but there are no alluvions, no arable lands, and the whole country may be described as one waste of rock and water.

"You have desired me also to express an opinion as to any preference which I may know to exist between the several lines claimed as boundaries through this country, between the United States and Great Britain.

"Considering that Great Britain abandons her claim by the Fond du Lac and the St. Louis River; cedes also Sugar Island (otherwise called St. George's Island) in the St. Marie River; and agrees, generally, to a boundary following the old commercial route, commencing at the Pigeon River, I do not think that any reasonable ground exists to prevent a final determination of this part of the boundary."

And Mr. Delafield adds:

"As an agricultural district, it has no value or interest, even prospectively, in my opinion. If the climate were suitable (which it is not), I can only say that I never saw, in my explorations there, tillable land enough to sustain any permanent population sufficiently numerous to justify other settlements than those of the fur-traders; and, I might add, fishermen. The fur-traders there occupied nearly all those places; and the opinion now expressed is the only one I ever heard entertained by those most experienced in these northwestern regions.

"There is, nevertheless, much interest felt by the fur-traders on this subject of boundary. To them, it is of much importance, as they conceive; and it is, in fact, of national importance. Had the British commissioner consented to proceed by the Pigeon River (which is the Long Lake of Mitchell's map), it is probable there would have been an agreement. There were several reasons for his pertinacity, and for this disagreement; which belong, however, to the private history of the commission, and can be stated when required. The Pigeon River is a continuous water-course. The St. George's Island, in the St. Marie River, is a valuable island, and worth as much, perhaps, as most of the country between the Pigeon River and Dog River route, claimed for the United States, in an agricultural sense."

These are the answers; and while they are conclusive upon the agricultural character of the country between the two routes, and present it as of no value; yet, on the relative importance of the routes as boundaries, they refuse to follow the lead which the question held out to them, and show that, as commercial routes, and, consequently, as commanding the Indians and their trade, a question of national importance is involved. Mr. Delafield says the fur-traders feel much interest in this boundary: to them, it is of much importance; and it is, in fact, of national importance. These are the words of Mr. Delafield; and they show the reason why Lord Ashburton was so tenacious of this change in the boundary. He wanted it for the benefit of the fur-trade, and for the consequent command which it would give the British over the Indians in time of war. All this is apparent; yet our Secretary would only look at it as a corn and potato region! And finding it not good for that purpose, he surrenders it to the British! Both the witnesses look upon it as a sacrifice on the part of the United States, and suppose some equivalent in other parts of the boundary was received for it. There was no such equivalent: and thus this surrender becomes a gratuitous sacrifice on the part of the United States, aggravated by the condescension of the American Secretary to act as the attorney of the British minister, and seeking testimony by unfair and illegal questions; and then disregarding the part of the answers which made against his design.

CHAPTER CV.
BRITISH TREATY: EXTRADITION ARTICLE: MR. BENTON'S SPEECH: EXTRACT

I proceed to the third subject and last article in the treaty – the article which stipulates for the mutual surrender of fugitive criminals. And here again we are at fault for these same protocols. Not one word is found in the correspondence upon this subject, the brief note excepted of Lord Ashburton of the 9th of August – the day of the signature of the treaty – to say that its ratification would require the consent of the British parliament, and would necessarily be delayed until the parliament met. Except this note, not a word is found upon the subject; and this gives no light upon its origin, progress, and formation – nothing to show with whom it originated – what necessity for it in this advanced age of civilization, when the comity of nations delivers up fugitive offenders upon all proper occasions – and when explanations upon each head of offences, and each class of fugitives, is so indispensable to the right understanding and the safe execution of the treaty. Total and black darkness on all these points. Nor is any ray of light found in the President's brief paragraphs in relation to it. Those paragraphs (the work of his Secretary, of course) are limited to the commendation of the article, and are insidiously deceptive, as I shall show at the proper time. It tells us nothing that we want to know upon the origin and design of the article, and how far it applies to the largest class of fugitive offenders from the United States – the slaves who escape with their master's property, or after taking his life – into Canada and the British West Indies. The message is as silent as the correspondence on all these points; and it is only from looking into past history, and contemporaneous circumstances, that we can search for the origin and design of this stipulation, so unnecessary in the present state of international courtesy, and so useless, unless something unusual and extraordinary is intended. Looking into these sources, and we are authorized to refer the origin and design of the stipulation to the British minister, and to consider it as one of the objects of the special mission with which we have been honored. Be this as it may, I do not like the article. Though fair upon its face, it is difficult of execution. As a general proposition, atrocious offenders, and especially between neighboring nations, ought to be given up; but that is better done as an affair of consent and discretion, than under the constraints and embarrassments of a treaty obligation. Political offenders ought not to be given up; but under the stern requisitions of a treaty obligation, and the benefit of an ex parte accusation, political offenders may be given up for murder, or other crimes, real or pretended; and then dealt with as their government pleases. Innocent persons should not be harassed with groundless accusations; and there is no limit to these vexations, if all emigrants are placed at the mercy of malevolent informers, subjected to arrest in a new and strange land, examined upon ex parte testimony, and sent back for trial if a probable case is made out against them.

This is a subject long since considered in our country, and on which we have the benefit both of wise opinions and of some experience. Mr. Jefferson explored the whole subject when he was Secretary of State under President Washington, and came to the conclusion that these surrenders could only be made under three limitations: – 1. Between coterminous countries. 2. For high offences. 3. A special provision against political offenders. Under these limitations, as far back as the year 1793, Mr. Jefferson proposed to Great Britain and Spain (the only countries with which we held coterminous dominions, and only for their adjacent provinces) a mutual delivery of fugitive criminals. His proposition was in these words:

"Any person having committed murder of malice prepense, not of the nature of treason, or forgery, within the United States or the Spanish provinces adjoining thereto, and fleeing from the justice of the country, shall be delivered up by the government where he shall be found, to that from which he fled, whenever demanded by the same."

This was the proposition of that great statesman: and how different from those which we find in this treaty! Instead of being confined to coterminous dominions, the jurisdiction of the country is taken for the theatre of the crime; and that includes, on the part of Great Britain, possessions all over the world, and every ship on every sea that sails under her flag. Instead of being confined to two offences of high degree – murder and forgery – one against life, the other against property – this article extends to seven offences; some of which may be incurred for a shilling's worth of property, and another of them without touching or injuring a human being. Instead of a special provision in favor of political offenders, the insurgent or rebel may be given up for murder, and then hanged and quartered for treason; and in the long catalogue of seven offences, a charge may be made, and an ex parte case established, against any political offender which the British government shall choose to pursue.

To palliate this article, and render it more acceptable to us, we are informed that it is copied from the 27th article of Mr. Jay's treaty. That apology for it, even if exactly true, would be but a poor recommendation of it to the people of the United States. Mr. Jay's treaty was no favorite with the American people, and especially with that part of the people which constituted the republican party. Least of all was this 27th article a favorite with them. It was under that article that the famous Jonathan Robbins, alias Thomas Nash, was surrendered – a surrender which contributed largely to the defeat of Mr. Adams, and the overthrow of the federal party, in 1800. The apology would be poor, if true: but it happens to be not exactly true. The article in the Webster treaty differs widely from the one in Jay's treaty – and all for the worse. The imitation is far worse than the original – about as much worse as modern whiggery is worse than ancient federalism. Here are the two articles; let us compare them:

Mr. Webster's Treaty

"Article 10. – It is agreed that the United States and her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other: provided, that this shall only be done, upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed; and the respective judges and other magistrates shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges, or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge, or magistrate, to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition, and receives the fugitive."

Mr. Jay's Treaty

"Article 27. – It is further agreed that his Majesty and the United States, on mutual requisitions by them, respectively, or by their respective ministers, or officers, authorized to make the same, will deliver up to justice all persons who, being charged with murder, or forgery, committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other: provided, that this shall only be done on such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the offence had there been committed. The expense of such apprehension and delivery shall be borne and defrayed by those who make the requisition, and receive the fugitive."

These are the two articles, and the difference between them is great and striking. First, the number of offences for which delivery of the offender is to be made, is much greater in the present treaty. Mr. Jay's article is limited to two offences – murder and forgery: the two proposed by Mr. Jefferson; but without his qualification to exclude political offences, and to confine the deliveries to offenders from coterminous dominions. The present treaty embraces these two, and five others, making seven in the whole. The five added offences are – assault, with intent to commit murder; piracy; robbery; arson; and the utterance of forged paper. These additional five offences, though high in name, might be very small in degree. Assault, with intent to murder, might be without touching or hurting any person; for, to lift a weapon at a person within striking distance, without striking, is an assault: to level a fire-arm at a person within carrying distance, and without firing, is an assault; and the offence being in the intent, is difficult of proof. Mr. Jefferson excluded it, and so did Jay's treaty; because the offence was too small and too equivocal to be made a matter of international arrangement. Piracy was excluded, because it was absurd to speak of a pirate's country. He has no country. He is hostis humani generis – the enemy of the human race; and is hung wherever he is caught. The robbery might be of a shilling's worth of bread; the arson, of burning a straw shed; the utterance of forged paper, might be the emission or passing of a counterfeit sixpence. All these were excluded from Jay's treaty, because of their possible insignificance, and the door they opened to abuse in harassing the innocent, and in multiplying the chances for getting hold of a political offender for some other offence, and then punishing him for his politics.

Striking as these differences are between the present article and that of Mr. Jay's treaty, there is a still more essential difference in another part; and a difference which nullifies the article in its only material bearing in our favor. It is this: Mr. Jay's treaty referred the delivery of the fugitive to the executive power. This treaty intervenes the judiciary, and requires two decisions from a judge or magistrate before the governor can act. This nullifies the treaty in all that relates to fugitive slaves guilty of crimes against their masters. In the eye of the British law, they have no master, and can commit no offence against such a person in asserting their liberty against him, even unto death. A slave may kill his master, if necessary to his escape. This is legal under British law; and, in the present state of abolition feeling throughout the British dominions, such killing would not only be considered fair, but in the highest degree meritorious and laudable. What chance for the recovery of such a slave under this treaty? Read it – the concluding part – after the word "committed," and see what is the process to be gone through. Complaint is to be made to a British judge or justice. The fugitive is brought before this judge or justice, that the evidence of the criminality may be heard and considered – such evidence as would justify the apprehension, commitment, and trial of the party, if the offence had been committed there. If, upon this hearing, the evidence be deemed sufficient to sustain the charge, the judge or magistrate is to certify the fact to the executive authority; and then, and not until then, the surrender can be made. This is the process; and in all this the new treaty differs from Jay's. Under his treaty the delivery was a ministerial act, referring itself to the authority of the governor: under this treaty, it becomes a judicial act, referring itself to the discretion of the judge, who must twice decide against the slave (first, in issuing the warrant; and next, in trying it) before the governor can order the surrender. Twice judicial discretion interposes a barrier, which cannot be forced; and behind which the slave, who has robbed or killed his master, may repose in safety. What evidence of criminality will satisfy the judge, when the act itself is no crime in his eyes, or under his laws, and when all his sympathies are on the side of the slave? What chance would there be for the judicial surrender of offending slaves in the British dominions, under this treaty, when the provisions of our own constitution, within the States of our own Union, in relation to fugitive slaves, cannot be executed? We all know that a judicial trial is immunity to a slave pursued by his owner, in many of our own States. Can such trials be expected to result better for the owner in the British dominions, where the relation of master and slave is not admitted, and where abolitionism is the policy of the government, the voice of the law, and the spirit of the people? Killing his master in defence of his liberty, is no offence in the eye of British law or British people; and no slave will ever be given up for it.

(Mr. Wright here said, that counterfeiting American securities, or bank notes, was no offence in Canada; and the same question might arise there in relation to forgers.)

Mr. Benton resumed. Better far to leave things as they are. Forgers are now given up in Canada, by executive authority, when they fly to that province. This is done in the spirit of good neighborhood; and because all honest governments have an interest in suppressing crimes, and repelling criminals. The governor acts from a sense of propriety, and the dictates of decency and justice. Not so with the judge. He must go by the law; and when there is no law against the offence, he has nothing to justify him in delivering the offender.

Conventions for the mutual surrender of large offenders, where dominions are coterminous, might be proper. Limited, as proposed by Mr. Jefferson in 1793, and they might be beneficial in suppression of border crimes and the preservation of order and justice. But extended as this is to a long list of offenders – unrestricted as it is in the case of murder – applying to dominions in all parts of the world, and to ships in every sea – it can be nothing but the source of individual annoyance and national recrimination. Besides, if we surrender to Great Britain, why not to Russia, Prussia, Austria, France, and all the countries of the world? If we give up the Irishman to England, why not the Pole to Russia, the Italian to Austria, the German to his prince; and so on throughout the catalogue of nations? Sir, the article is a pestiferous one; and as it is determinable upon notice, it will become the duty of the American people to elect a President who will give the notice, and so put an end to its existence.