When British governments of the period encountered the United States, they met within the bounds of a relationship framed by international law. Treaties governed how Britain and the United States interacted on many of the practical issues arising from American
independence. Indeed, the agreements made after the War of 1812 had even effectively refreshed the aim in 1783 for a ‘beneficial and satisfactory intercourse’. Furthermore, 1 principles of international law effectively circumscribed how Britain could act in its relations with the United States. Britain’s overall support for the system of international law placed inevitable constraints on policy derived from the legal rules within its practice. Lastly, British diplomatic records make clear that Britain faced, in disputes with the United States, an adversary respectful of international law. The United States was, of course, necessarily a party to the treaties it had entered into with Britain, but it also regularly raised points of legal principle in contentious matters within the British-American relationship. The purpose of this chapter, then, is to examine how, from this widely-based level of presence, international law made its impact on British policy.
The chapter develops two main arguments. The first contends that international law influenced the nature of British objectives towards the United States - or, in other words, shaped the way in which Britain sought to relate to American issues. A combination of Britain’s treaty rights and obligations, and the principles of law within British practice, guided both the direction of the policy aims, and how practically they could be achieved. 2 British objectives concerning imperial possessions, commerce, the slave trade, and peace, operated, as a result, within broadly defined limits - simply because so much had already been decided or become established within British practice. Importantly, British objectives also had to accommodate the aspiration to resolve technical disputes over the interpretation of several treaty provisions, which were points entirely derived from international law. The second argues that international law also affected policy - in the way it operated - because it was at the heart of how disputes were handled in the British-American relationship. Reciprocal treaty rights and obligations, and American support for similar key legal
Preamble to the Definitive Treaty of Peace, 1783. 1
The main principles of international law concerned within British practice were summarised in the 2
principles, resulted in British policy working within what was effectively a legal framework shared with the United States. Law and legal rights found themselves, therefore, at the centre of the way Britain dealt practically with the United States on a day to day basis.
Introductory Points
Before developing these contentions further in the main sections, there are, however, three brief general points on the nature of the arguments in the chapter which can usefully be made by way of introduction.
First, the chapter uses a four-way categorisation of the main British objectives towards the United States in the period. In the order of presentation, these are the maintenance of the British possessions in North America, the expansion of commerce, the suppression of the slave trade, and the keeping of peace. This list of objectives is not intended to be novel, but is, rather, simply a broad summary of the principal policy aims apparent from the British diplomatic papers concerning the United States and the relevant historiography. Indeed, why these objectives mattered to Britain is well-covered ground. The retention of Canada and the Maritime Provinces was viewed as essential to the British control of the Atlantic Ocean, as well as being important in its own right. Trade was at the heart of British action in the 3 Western Hemisphere. The suppression of the Atlantic slave trade was a wider British 4 policy, which only affected British-American relations because the United States was perceived to be blocking its success through disputes over maritime rights. Lastly, as an 5 overall objective, peace gave greater security to the British possessions on the North American continent, favoured trade, and was more likely than war to preserve a favourable
On the perceived importance of Canada and the Maritime Provinces: Lambert points out that the 3
British government wanted to retain Canada for, amongst other things, its wood and food resources, and commercial marine, ‘Winning without Fighting’, p. 172; Bourne notes the ‘very special attention’ given to Halifax and Bermuda, and the view that Canada and the Maritime Provinces were important for British naval power, Britain and the Balance of Power, p. 47, p. 54, and p. 57.
British trading and investment interests involved both the United States and the newly independent 4
states in central and southern America formed after the collapse of Spanish America.
On the British-American dispute over the slave trade, see the further discussion in chapter 6, and on 5
the wider British policy against the slave trade, see Martinez, The Slave Trade and the Origins of International Human Rights Law.
status quo. Others may, of course, present British objectives differently for distinct 6 purposes, but the chapter is not concerned with possible varying classifications. The objectives are merely a convenient and reasonable means through which the influence of international law can be demonstrated.
Second, the chapter brings out the twofold impact on policy of the treaties between Britain and the United States. Primarily, of course, the agreements constructed a British-American relationship that was both initially established, and then largely defined, by treaty law. In total, eight major aspects of the British-American relationship were covered in the seven main agreements. The matters dealt with included mutual recognition, territory, trade, 7 indigenous peoples, slavery, defence, fishing, and arbitration, with many clauses providing for the practical effects of separating the United States from the British Empire. In effect, therefore, the treaties created an enormous ‘contract’ governing how Britain and the United States were to relate to each other. British policy objectives going forward, necessarily, also needed to be developed around all the resulting treaty rights and obligations. In this way, the wide scope of the treaties highlights, too, the significant level of agreement that was
embedded within the British-American relationship. The other impact was more subtle. It can be seen in the fact that some of the ongoing important disputes between Britain and the United States in the period were centred on the meaning of particular articles or words in the various agreements. Thus, whilst the central issue at hand was meant to have been covered 8 by the treaty, the argument had turned instead to what was the right interpretation of the relevant words in the circumstances. Policy, as a result, became directed towards what were fundamentally technical disputes of a ‘legal’ nature.
The favourable status quo was that Britain was the only European power with major territory in the 6
Western Hemisphere by the 1830s. This dominant situation had arisen following the French loss of territory during and after the French revolutionary wars, the collapse of Spanish America, and the effective withdrawal of Russia from the North American continent. The one important exception was Cuba, which remained a Spanish possession.
The seven agreements are: The Definitive Treaty of Peace, 1783 (the ‘1783 Treaty’), the Treaty of 7
Amity Commerce and Navigation, 1794 (the ‘Jay Treaty, 1794’), the Treaty of Peace and Amity, 1814 (the ‘Treaty of Ghent, 1814’), A Convention to regulate the Commerce between the Territories of the United States and of his Britannick Majesty, 1815 (the ‘1815 Convention’), the Exchange of Notes Relative to Naval Forces on the American Lakes, 1817 (the ‘Exchange of Notes, 1817’), the Convention of 1818 (the ‘1818 Convention’), and the Conventions of 1827 (the ‘1827 Convention’).
The main examples to be discussed in the thesis are the disputes over the Northeastern boundary, 8
Finally, third, the chapter allows British foreign policy to the United States to be better understood through a greater appreciation of the role of international law. Fundamentally, international law draws out that there was a greater level of political agreement between Britain and the United States than has been traditionally acknowledged. Treaties and legal principles encouraged the development of objectives - on British possessions, commerce, and the slave trade - which were based on a premise of Britain working with, rather than against, the United States. Key principles were also shared, reflecting political agreement at a deep, underlying level. The overall British objective of peace captures and reflects this trend. International law also, however, resulted in a long-term continuity to British policy objectives, which can be overlooked by focusing on the disputes in isolation. Palmerston and Aberdeen were, ultimately, bound by the same treaties and worked within the same legal principles. Thus, whilst their styles may have differed, the influence of international law helped to give a consistency to their policies on the central issues on which they directly overlapped. This chapter demonstrates that international law had an even influence on British objectives over the period. Furthermore, as will be seen in the later chapters,
Palmerston and Aberdeen shared the same approach to McLeod, and worked within the same constraints on the slave trade. The objectives of both were also set within the limits
permitted by legal argument on the Northeastern boundary. Significantly, from their public comments, they additionally do not appear to have differed greatly on the other major problems of the period concerning the Canadian rebellion, Texas, and Oregon, where their policies were, in any event, less entwined.
The Objectives of British Foreign Policy to the United States
There were several legal principles from within British practice which provided the basic framework for policy towards the United States in relation to the objective of maintaining Britain’s possessions on the North American continent. The principle of the self-
preservation of a state was, of course, central, and indeed is mirrored in the description of the objective itself. It also mattered that the duty to preserve the state extended under
international law to the whole empire, meaning, in Britain’s case, that all of its existing imperial possessions fell within its ambit. The principles involving the ownership and
occupation of land were also clearly relevant to claims for new territory. Policy was guided too by those principles associated with sovereignty which emphasised territorial
independence and ‘non-interference’ in foreign states. These principles did not always provide absolute rules, but they set a structure for policy to operate within. Importantly, they both shielded sovereign territories from foreign incursions and meddling, and restricted what a state itself could do in foreign countries. Furthermore, the role of international law was heightened by the fact that ministers and a broader group of politicians also appeared to associate the upholding of British legal rights concerning imperial possessions with wider perceptions of British power and honour. 9
Taken together, these general principles influenced both the overall direction, and specific choices, of British policy towards the United States in relation to imperial problems concerning the North American continent. Most importantly, Britain used principles associated with sovereignty, and the relations between independent sovereign states, to encourage the United States to remain out of Canada following the revolt of 1837. Furthermore, Britain embraced Canada within its duty of protection, and politicians used reasoning derived from legal principles to justify the defence of the provinces. Indeed, this 10 conception of British duty had a long trajectory of being applied to Canada, as can be seen from the jurist, Sir James Macintosh’s use of it in a parliamentary debate in 1828. 11 Elsewhere on the continent, Britain took a deep interest in the future of Oregon because it possessed legal rights there, which it wanted to be seen to uphold, and the Oregon question itself became centred on the principles around occupation and ownership. In contrast, Britain gave a lower priority to Texas, where it possessed no territorial claims, and was ultimately limited in what it could do by the legal principles of ‘non-interference’ and neutrality. These themes are examined further, in relation to Canada, Texas, and Oregon, in chapters 4 and 5.
See the discussion in the first section of chapter 2. 9
This reasoning also worked as a counter to those British politicians arguing at this time against 10
empire. For an example of the debate, see ‘An Essay on the Government of Dependencies’ by G. Cornewall Lewis, Edinburgh Review, Vol. LXXXIII, (1846), Article X, pp. 512-554.
Sir James Mackintosh said,, after noting Huskisson’s term for the Empire as the ‘Great British 11
Confederacy’: ‘I hold ... that all the different portions of that Confederacy are integral parts of the British Empire, and as such entitled to the fullest protection’, HC, 2 May 1828, as referred to in R. J. Mackintosh, (ed.), The Miscellaneous Works of the Right Honourable Sir James Mackintosh (London: Longman, Brown, Green, and Longmans, 1851), p. 769.
Treaties also made three important contributions to the way in which Britain sought to maintain its existing possessions on the North American continent. The most fundamental of these arose from the fact that it was the treaties that contained the actual mutual
recognition by Britain and the United States of each other’s sovereignty. The key agreement was, of course, the acceptance by Britain of the independence and sovereignty of the United States in the 1783 Treaty. Here, it was provided that: Britain [through the Crown]
‘acknowledges’ [the thirteen original states] ‘to be free sovereign and independent states’ and ‘relinquishes all claims to the government, propriety, and territorial rights’ of them. 12
Significantly, however, the United States also, effectively, recognised British sovereignty in Britain’s North American possessions. This was not really done expressly in the 1783 Treaty, which merely referred to a peace between the Crown and the United States, and their subjects and citizens respectively. Rather, the clearer references were in the Jay Treaty, 13 1794, the Treaty of Ghent, 1814, and the 1815 Convention. The Jay Treaty and the Treaty 14 of Ghent both refer to a peace between the Crown and the United States, and also ‘between their respective Countries, Territories, Cities, Towns and People of every Degree’. More 15 definitively, The Jay Treaty makes express reference to the British ‘territories’ on the ‘continent of America’. 16
This mutual recognition of sovereignty was central to the operation of British and American policy in the period - largely because, as seen, sovereignty was at the heart of so many of the general principles associated with dealing with the problems of the North American
continent. British policy was also affected, however, by a highly technical point relating to the manner in which sovereignty had been recognised. This arose from the position that Britain and the United States had not specified in the 1783 Treaty any formal basis for their separation. Instead, Britain had merely ‘acknowledged’ the independence and sovereignty
Article 1, 1783 Treaty, accessed through Project Avalon, Yale Law School, on 19/05/16; all 12
references to the 1783 Treaty are to this version.
Article 7, 1783 Treaty. Indeed, only Newfoundland can, from the 1783 Treaty, be inferred definitely 13
to constitute a British ‘dominion’ in America, for, although reference is made to ‘all other of his Britannic Majesty’s dominions in America’, they are not named and the definite article is not used: Article 3, 1783 Treaty.
The Jay Treaty, 1794, and the Treaty of Ghent, 1814, accessed through Project Avalon, Yale Law 14
School, on 19/05/16, and the 1815 Convention, accessed through Project Avalon, Yale Law school, on 23/05/16; all references to these agreements are to these versions.
Article 1, Jay Treaty, 1794; Article 1, Treaty of Ghent, 1814. 15
Article 3, Jay Treaty, 1794. 16
of the United States. The crucial question that this masked was whether or not the 1783 Treaty was, as later contended by Britain, a treaty of cession, in which Britain ‘ceded’ the ‘United States’, or, conversely, as argued by the United States, a treaty of partition between already sovereign states. This was not just a matter of legal theory with constitutional significance in relation to the foundation of the United States. It also became a point of real practical relevance in the disputed territory around the Northeastern boundary, because, as will be discussed further in chapter 4, Britain argued that, in cessions, sovereignty remained with the ceding party until any dispute was resolved. Britain’s approach to the ‘disputed 17 territory’ was, accordingly, directed to the formal maintenance of sovereignty until a final agreement was reached.
Importantly, the treaties also pushed Britain towards a policy that was accepting of continued American westward expansion on the North American continent. The treaties did not do this expressly, but they nevertheless implicitly embedded the prospect of material American growth. In the 1783 Treaty, Britain, as noted, gave up all the ‘territorial rights’ of the thirteen states. This mattered because it ensured that any rights held by the states to further territory would not also be claimed by Britain. Crucially, these included the claims for territory west of the original states on the principle of ‘continuity’ in international law. Furthermore, the 18 ‘boundaries’ of the United States in the 1783 Treaty were defined as those of the ‘United States’ taken as a whole. This was significant because these boundaries, as will be seen, 19 extended significantly beyond the actual land within the thirteen states as they were then formed. Britain had, thus, in effect, accepted from 1783 that the ‘United States’ of the 20
See, for example, the correspondence between Aberdeen and Lawrence in 1828, in ‘Memorandum, 17
shewing what has passed between the Governments of Great Britain and the United States, upon the Question of the Occupation, Sovereignty, and Jurisdiction, of the disputed Territory on the North- Eastern Boundary of the United States’, Foreign Office, April, 1839, British Documents, Vol. 1 (hereafter ‘Northeastern Memorandum’), pp. 45-52.
‘Continuity’ is discussed in chapter 5. 18
Article 2, 1783 Treaty. 19
Indeed, Chalmers asked in 1814: ‘Why relinquish, under the pretence of settling boundaries, 20
countries larger than Great Britain, to which the United States had no pretensions?’, ’Opinion of Mr Chalmers on the legal effects resulting from the acknowledgement of the Independence of the United States’ in W. Forsyth, Cases and Opinions on Constitutional Law and various points of English Jurisprudence (London, 1869), pp. 279-280.
treaty was of a significantly larger size than the thirteen states. Finally, Britain agreed in 21 the 1818 Convention both to a border across to the Rocky Mountains and a joint occupation of Oregon, and showed itself willing, in the negotiations over Oregon, to accept a partition extending the United States to the Pacific Ocean. In the light of these treaty provisions, 22 British policy was, thus, unlikely to oppose American expansion simply for its own sake. Nor does a British policy objective of the containment of the United States in a simple, unqualified form make sense. On the contrary, the treaties show a Britain that appears tolerant of the growth of the United States, provided that existing British possessions and rights were protected and upheld. In practice, this was most evident in the British approach to the problems of Oregon and Texas, as to be discussed in chapter 5.
This shaping of British policy to be permissive of American expansion is also supported by the treaty provisions on the approach of Britain and the United States to the position of the