The Oregon Territory Part 10

In the course of these negotiations, we find certain principles of international law laid down by the commissioners of the United States as applicable to the question of disputed boundaries. They seem to have been advanced after careful consideration, for Messrs. Pinckney and Monroe formally enunciated them on the 20th of April 1805, as "dictated by reason, and adopted in practice by European Powers in the discoveries and acquisitions which they have respectively made in the new world;" and Mr.

Adams, on the 12th of March 1820, restated them again as principles "sanctioned alike by immutable justice, and the general practice of the European nations, which have formed settlements and held possessions in this hemisphere." (British and Foreign State Papers, 1817-18, pp. 327, 467.)

The _first_ is, "That whenever _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."

"It is evident," write Messrs. Pinckney and Monroe, (ibid., p. 327,) "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 shew 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, 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 ent.i.tled 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 a.s.sent.

"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 lat.i.tudes 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._"

To a similar purport Vattel, b. i., -- 266, writes: "When a nation takes possession of a country, with a view to settle there, it takes possession of every thing included in it, as lands, lakes, rivers, &c." It is universally admitted, that when a nation takes possession of a country, she is considered to appropriate to herself all its natural appendages, such as lakes, rivers, &c., and it is perfectly intelligible, why the practice of European nations has sanctioned the exclusive t.i.tle of the first settlers on any extent of sea-coast to the interior country within the limits of the coast which they have occupied, because their settlements bar the approach to the interior country, and other nations can have no right of way across the settlements of independent nations. In reference, however, to the extent of coast, which a nation may be presumed to have taken possession of by making a settlement in a vacant country, the well-known rule of _terrae dominium finitur, ubi finitur armorum vis_, might on the first thought suggest itself; but it has not been hitherto held that there is any a.n.a.logy between jurisdiction over territory, and jurisdiction over adjoining seas: on the contrary, it was ruled in the Circuit Court of New York, 1825, in the case of Jackson v. Porter, 1 Paine, 457, "that under the second article of the treaty with Great Britain, the precincts and jurisdiction of a fort are not to be considered three miles in every direction, by a.n.a.logy to the jurisdiction of a country over that portion of the sea surrounding its coasts, but they must be made out by proof." The comity of nations, however, has recognised in the case of settlements made in a vacant territory for the purpose of colonisation, a t.i.tle in the settlers to such an extent of territory as it may fairly be presumed that they intend to cultivate (Vattel, b. i., -- 81,) and the possession of which is essential either to the convenience or security of the settlement, without being inconvenient to other nations.

The limitation of this extent seems rather to have been regulated by special conventions, than by any rule of uniform practice.

On the authority of this principle as above stated, Messrs. Pinckney and Monroe contended that "by the discovery and possession of the Mississippi in its whole length, and _the coast adjoining it_, the United States are ent.i.tled to the whole country dependent on that river, the waters which empty into it, and their several branches, _within the limits on that coast_. The extent to which this would go it is not in our power to say; but the principle being clear, dependent on plain and simple facts, it would be easy to ascertain it."

It will have been observed, that the opposition of France and Spain to the pretensions of Great Britain is adduced by Messrs. Pinckney and Monroe, as giving the highest sanction to this principle. A pa.s.sage in Mr. Calhoun's letter of Sept. 3, 1844, to Mr. Pakenham forms a striking contrast. Having alluded to the claims of France and Great Britain, first conflicting on the banks of the Ohio, he writes: "If the relative strength of these different claims may be tested by the result of that remarkable contest, that of continuity westward must be p.r.o.nounced to be the stronger of the two. England has had at least the advantage of the result, and would seem to be foreclosed against contesting the principle--particularly as against us, who contributed so much to that result, and on whom that contest, and her example and her pretensions from the first settlement of our country, have contributed to impress it so deeply and indelibly." In other respects Mr. Calhoun adopts the same view of the early European settlements in North America, that the respective nations "claimed for their settlements usually, specific limits _along the coasts_ or bays on which they were formed, and generally a region of _corresponding width_ extending across the entire continent to the Pacific Ocean."

That the hypothesis of Mr. Calhoun's argument was meant to be affirmed, may be inferred from Mr. Gallatin having categorically a.s.serted the same fact in 1826, as being notorious. It does not however appear from the protracted negotiations prior to the Treaty of Paris, that any conflicting principles of international law were advanced by the two parties, or any question of disputed t.i.tle set at rest by the treaty. On the contrary, it was intimated in the course of the negotiations, by Great Britain, that she considered France to have the natives on the left bank of the Mississippi under her protection, when she proposed that the King of France should "consent to leave them under the protection of Great Britain."

The _second_ rule is, "that whenever a European nation makes a discovery, and takes possession of any portion of that continent, and another afterwards does the same _at some distance from it_, where the boundary between them is not determined by the principle above mentioned, the middle distance becomes such of course. The justice and propriety of this rule are too obvious to require ill.u.s.tration."

The principle here stated seems very a.n.a.logous to that which is recognised by all writers on international law, as regulating the navigation of rivers. Thus Vattel (i., -- 266)--"When a nation takes possession of a country bounded by a river, she is considered as appropriating to herself the river also; for the utility of a river is too great to admit a supposition that the nation did not intend to reserve it for herself.

Consequently, the nation that first established her dominion on one of the banks of the river, is considered as being the first possessor of all that part of the river which bounds her territory. Where there is a question of a _very broad river_, this presumption admits not of a doubt, so far, at least, as relates to a part of the river's breadth, and the strength of the presumption increases or diminishes in the inverse ratio with the breadth of the river; for the narrower the river is, the more does the safety and convenience of its use require that it should be subject entirely to the empire and property of that nation." To make the reasoning more complete, it might have been added, "the broader the river is, the stronger claim has each party to a portion of it, as requisite for its own convenience, and not likely to be attended with inconvenience to the other party."

Mr. Wheaton states the rule of division more explicitly (part ii., ch.

iv.)--"Where a navigable river forms the boundary of conterminous states, the middle of the channel, or 'thalweg,' is generally taken as the line of separation between the two states, the presumption of law being, that the right of navigation is common to both: but this presumption may be destroyed by actual proofs of prior occupancy, and long undisturbed possession giving one of the riparian proprietors the exclusive t.i.tle to the entire river."

In an a.n.a.logous manner, where a large tract of unoccupied land forms the boundary of conterminous settlements, the middle distance is suggested by natural equity as the line of demarcation, where such line is not inconvenient to either party, and when one party cannot establish a stronger presumption than the other of a perfect right in its own favour.

Thus, Messrs. Pinckney and Monroe contended, that "by the application of this principle to the discovery made by M. de la Salle of the bay of St.

Bernard, and his establishment there on the western side of the River Colorado, the United States have a just right to a boundary founded on the middle distance between that point and the then nearest Spanish settlement; which, it is understood, was in the province of Panuco, unless that claim should be precluded on the principle above mentioned. To what point that would carry us, it is equally out of our power to say; nor is it material, as the possession in the bay of St. Bernard, taken in connection with that on the Mississippi, has been always understood, as of right we presume it ought, to extend to the Rio Bravo, on which we now insist."

The _third_ rule is, "that whenever any European nation has thus acquired a right to any portion of territory on that continent, that right can never be diminished or affected by any other Power, by virtue of purchases made, by grants, or conquests of the natives within the limits described."

"It is believed," continued the commissioners, "that this principle has been admitted, and acted on invariably, since the discovery of America, in respect to their possessions there, by all the European Powers. It is particularly ill.u.s.trated by the stipulations of their most important treaties concerning those possessions, and the practice under them, viz., the Treaty of Utrecht in 1713, and that of Paris in 1763."

The practice of European nations has certainly recognised in the nation which has first occupied the territory of savage tribes, that live by hunting, fishing, and roaming habits, the sole right of acquiring the soil from the natives by purchase, or cession, or conquest, for the purpose of establishing settlements. The more humane spirit of the modern code of nations seems disposed to reduce this right to a right of _pre-emption_, as against other European nations.

The applicability of the above principles to the solution of the questions at present under discussion between the governments of the United States and Great Britain, will be considered in a subsequent chapter.

CHAPTER XIV.

NEGOTIATIONS BETWEEN GREAT BRITAIN AND THE UNITED STATES IN 1823-24.

Proceedings in Congress after the Convention of 1818.--Russian Ukase of 1821.--Russian t.i.tle to the North-west Coast of America.--Declaration of President Monroe, of Dec. 2, 1823.--Protest of Russia and Great Britain.--Report of General Jessup.--Exclusive Claim set up by the United States, on the Ground of Discovery by Captain Gray, and Settlement at Astoria.--Extent of t.i.tle by Discovery of the Mouth of a River.--The United States claim up to 51 N.

L.--British Objections.--Convention of 1790.--Discovery by Captain Gray a private Enterprise.--Mr. Rush's Reply.--Gray's Vessel a national Ship for such an Occasion.--Superior t.i.tle of Spain.--British Answer.--Pretensions of Spain never admitted.--Drake's Expedition in 1578.--Mr. Rush's further Reply.--Treaty of 1763, a Bar to Great Britain westward of the Mississippi.--Exclusive Claim of the United States to the entire Valley of the Columbia River.--Proposal of the British Commissioners of the Parallel of 49 to the North-easternmost Branch of the Columbia, and thence along the Mid-channel of the River to the Sea.--Counter-proposal of the United States of the Parallel of 49 to the Sea.--Negotiations broken off.

The Convention of 1818 had provided that the country westward of the Stony Mountains should be free and open, for the term of ten years from the signature of the treaty, to the vessels, citizens, and subjects of the two Powers, without prejudice to the territorial claims of either party. Two years afterwards a committee was appointed by the House of Representatives in Congress, for an "inquiry as to the situation of the settlements on the Pacific Ocean, and as to the expediency of occupying the Columbia River;"

and a bill was subsequently brought in "for the occupation of the Columbia, and the regulation of the trade with the Indians in the territories of the United States." The bill, however, was suffered to lie on the table of the House, and although it was again brought before Congress in the ensuing year, no further steps were taken until the winter of 1823. (Greenhow, p. 332.)

In the mean time the attention of both Powers was arrested by the publication of a Russian ukase on 16th September 1821, by which an exclusive t.i.tle was a.s.serted in favour of Russian subjects to the north-west coast of America, as far south as 51 north lat., and all foreign vessels were prohibited from approaching within one hundred miles of the sh.o.r.e, under penalty of confiscation. Great Britain lost no time in protesting against this edict, and Mr. Adams, on the part of the United States, declined to recognise its validity. A correspondence ensued between Mr. Adams and M. de Poletica, the Russian Minister at Washington, which may be referred to in the British and Foreign State Papers for 1821-22. M. de Poletica alleged, as authorising this edict on the part of the Emperor, first discovery, first occupancy, and, in the last place, a peaceable and uncontested possession of more than half a century. Both the other Powers, however, contested the extent to which so perfect a t.i.tle could be made out by Russia, and separate negotiations were in consequence opened between Russia and the other two Powers for the adjustment of their conflicting claims. The question was additionally embarra.s.sed by a declaration on the part of President Monroe, on December 2, 1823, that the "American continents, by the free and independent condition which they had a.s.sumed, were henceforth not to be considered as subjects for colonisation by any European power." (Greenhow, p. 325.) Against this declaration, both Russia and Great Britain formally protested. A further ground of dissension between Great Britain and the United States resulted from an official paper laid before the House of Representatives in Congress, on February 16, 1824, by General Jessup, the Quartermaster-General, in which it was proposed to establish certain military posts between Council Bluffs on the Missouri, and the Pacific, by which, he adds, "present protection would be afforded to our traders; and at the expiration of the privilege granted to British subjects to trade on the waters of the Columbia, we should be enabled to remove them from our territory, and to secure the whole trade to our citizens." In the conference which ensued at London on the following July, the British commissioners remarked that such observations "were calculated to put Great Britain especially upon her guard, coming, as they did, at a moment when a friendly negotiation was pending between the two Powers for the adjustment of their relative and conflicting claims to the entire district of the country." (Greenhow, p.

337.)

Such proceedings on the part of the Executive of the United States were not calculated to facilitate the settlement of the points likely to become subjects of controversy in the approaching negotiations, either at St.

Petersburgh or at London. The instructions which were to guide the commissioners of the United States were set forth by Mr. Adams, in a letter to Mr. Rush, the Minister Plenipotentiary at London, of the date of July 22, 1823, which may be referred to in the British and Foreign State Papers, 1825-26, p. 498. In the previous negotiations of 1818, as already observed, Messrs. Gallatin and Rush "_did not a.s.sert a perfect right_" to the country westward of the Stony Mountains, but insisted that their claim was "_at least good against Great Britain_." The 49th degree of north lat.i.tude had, in pursuance of the Treaty of Utrecht, been fixed indefinitely as the line between the northern British possessions and those of France, including Louisiana, now a part of our territories. There was no reason why, if the two countries extended their claims westward, the same line should not be continued to the Pacific Ocean. So far as discovery gave a claim, ours to the whole country on the waters of the Columbia River was indisputable. Subsequently, however, to these negotiations, His Catholic Majesty had ceded to the United States, by the Treaty of Washington, of February 22, 1819, commonly called the Florida Treaty, "all his rights, claims, and pretensions to any territory" north of the 42d parallel of north lat.i.tude; and Mr. Rush opened the negotiations by stating, that "the rights thus acquired from Spain were regarded by the government of the United States as surpa.s.sing the rights of all other European Powers on that coast." Apart, however, from this right, "the United States claimed in their own right, and as their absolute and exclusive sovereignty and dominion, the whole of the country west of the Rocky Mountains, from the 42d to at least as far up as the 51st degree of north lat.i.tude." This claim they rested upon their first discovery of the river Columbia, followed up by an effective settlement at its mouth: a settlement which was reduced by the arms of Britain during the late war, but formally surrendered up to the United States at the return of peace.

Their right by first discovery they deemed peculiarly strong, having been made, not only from the sea by Captain Gray, but also from the interior by Lewis and Clarke, who first discovered its sources, and explored its whole inland course to the Pacific Ocean. It had been ascertained that the Columbia extended, by the River Multnomah, to as low as 42 degrees north; and by Clarke's River, to a point as high up as 51 degrees, if not beyond that point; and to this entire range of country, contiguous to the original dominion of the United States, and made a part of it by the almost intermingling waters of each, the United States considered their t.i.tle as established by all the principles that had ever been applied on this subject by the Powers of Europe to settlements in the American hemisphere. "I a.s.serted," writes Mr. Rush, "that _a nation discovering a country, by entering the mouth of its princ.i.p.al river at the sea coast, must necessarily be allowed to claim and hold as great an extent of the interior country as was described by the course of such princ.i.p.al river and its tributary streams_; and that the claim to this extent became doubly strong, where, as in the present instance, the same river had also been explored from its very mountain-springs to the sea.

"Such an union of t.i.tles, imparting a validity to each other, did not often exist. I remarked, that it was scarcely to be presumed that any European nation would henceforth project any colonial establishment on any part of the north-west coast of America, which as yet had never been used to any other useful purpose than that of trading with the aboriginal inhabitants, or fishing in the neighbouring seas; but that the United States should contemplate, and at one day form, permanent establishments there, was naturally to be expected, as proximate to their own possessions, and falling under their immediate jurisdiction. Speaking of the Powers of Europe, who had ever advanced claims to any part of this coast, I referred to the principles that had been settled by the Nootka Sound Convention of 1790, and remarked, that Spain had now lost all the _exclusive colonial rights that were recognised under that convention_, first, by the fact of the independence of the South American States and of Mexico, and next, by her express renunciation of all her rights, of whatever kind, above the 42 degree of north lat.i.tude, to the United States. Those new States would themselves now possess the rights incident to their condition of political independence, and the claims of the United States above the 42 parallel, as high up as 60, claims as well in their own right as by their succession to the t.i.tle of Spain, would henceforth necessarily preclude other nations from forming colonial establishments upon any part of the American continents. I was, therefore, instructed to say, that my government no longer considered any part of those continents as open to future colonisation by any of the Powers of Europe, and that this was a principle upon which I should insist in the course of these negotiations."

The proposal which Mr. Rush was authorised to make on the part of the United States was, that for the future no settlements should be made by citizens of the United States north of 51, or by British subjects south of 51, inasmuch as the Columbia River branched as far north as 51. Mr.

Adams, however, in his instructions, concludes with these words:--"As, however, the line already runs in lat.i.tude 49 to the Stony Mountains, should it be earnestly insisted upon by Great Britain, we will consent to carry it in continuance on the same parallel to the sea."

On the other hand the British plenipotentiaries, on their part, totally declined the proposal, and totally denied the principles under which it had been introduced. "They said that Great Britain considered the whole of the unoccupied parts of America as being open to her future settlements, in like manner as heretofore. They included within these parts, as well that portion of the north-west coast lying between the 42d and 51st degree of lat.i.tude, as any other parts. The principle of colonisation on that coast, or elsewhere, on any portion of those continents not yet occupied, Great Britain was not prepared to relinquish. Neither was she prepared to accede to the exclusive claim of the United States. She had not, by her convention with Spain of 1790, or at any other period, conceded to that Power any exclusive rights on that coast, where actual settlements had not been formed. She considered the same principles to be applicable to it now as then. She could not concede to the United States, who held the Spanish t.i.tle, claims which she had felt herself obliged to resist when advanced by Spain, and on her resistance to which the credit of Great Britain had been thought to depend.

"Nor could Great Britain at all admit, the plenipotentiaries said, the claim of the United States, as founded on their own first discovery. It had been objectionable with her in the negotiation of 1818, and had not been admitted since. Her surrender to the United States of the post at Columbia River after the late war, was in fulfilment of the provisions of the first article of the Treaty of Ghent, without affecting questions of right on either side. Britain did not admit the validity of the discovery by Captain Gray. He had only been on an enterprise of his own, as an individual, and the British government was yet to be informed under what principles or usage, among the nations of Europe, his having first entered or discovered the mouth of the River Columbia, admitting this to have been the fact, was to carry after it such a portion of the interior country as was alleged. Great Britain entered her dissent to such a claim; and least of all did she admit that the circ.u.mstance of a merchant vessel of the United States having penetrated the coast of that continent at Columbia River, was to be taken to extend a claim in favour of the United States along the same coast, both above and below that river, over lat.i.tudes that had been previously discovered and explored by Great Britain herself, in expeditions fitted out under the authority and with the resources of the nation. This had been done by Captain Cook, to speak of no others, whose voyage was at least prior to that of Captain Gray. On the coast only a few degrees south of the Columbia, Britain had made purchases of territory from the natives before the United States were an independent power; and upon that river itself or upon rivers that flowed into it, west of the Rocky Mountains, her subjects had formed settlements coeval with, if not prior to, the settlement by American citizens at its mouth."

Such was the tenor of the opening of the negotiations. Mr. Rush, in resuming the subject, stated that it "was unknown to his government that Great Britain had ever even advanced any claim to territory on the north-west coast of America, by the right of occupation, before the Nootka Sound controversy. It was clear, that by the Treaty of Paris, of 1763, her territorial claims to America were bounded westward by the Mississippi.

The claim of the United States, under the _discovery_ by Captain Gray, was therefore, at all events, sufficient to over-reach, in point of time, any that Great Britain could allege along that coast, on the ground of _prior occupation or settlement_. As to any alleged settlements by her subjects on the Columbia, or on rivers falling into it, earlier, or as early, as the one formed by American citizens at Astoria, I knew not of them, and was not prepared to admit the fact. As to the discovery itself of Capt.

Gray, it was not for a moment to be drawn into question. It was a fact before the whole world. The very geographers of Great Britain had adopted the name which he had given to this river."

Having alluded to the fact of Vancouver having found Captain Gray there, Mr. Rush proceeded to meet the objection that the discovery of the Columbia River was not made by a national ship, or under national authority. "The United States," he said, "could admit of no such distinction; could never surrender, under it or upon any ground, their claim to this discovery. The ship of Captain Gray, whether fitted out by the government of the United States, or not, was a _national ship_. If she was not so in a technical sense of the word, she was in the full sense of it, _applicable to such an occasion_. She bore at her stern the flag of the nation, sailed forth under the protection of the nation, and was to be identified with the rights of the nation."

"The extent of this interior country attaching to this discovery was founded," Mr. Rush contended, "upon a principle at once reasonable and moderate: reasonable, because, as discovery was not to be limited to the local spot of a first landing-place, there must be a rule both for enlarging and circ.u.mscribing its range; and none more proper than that of taking the water-courses which nature has laid down, both as the fair limits of the country, and as indispensable to its use and value; moderate, because the nations of Europe had often, under their rights of discovery, carried their claims much farther. Here I instanced, as sufficient for my purpose, and pertinent to it, the terms in which many of the royal charters and letters patent had been granted, by the Crown of England, to individuals proceeding to the _discovery_ or _settlement_ of new countries on the American continent. Amongst others, those from Elizabeth in 1578, to Sir Humphery Gilbert, and in 1584, to Sir Walter Raleigh: those from James I. to Sir Thomas Yates, in 1606 and 1607, and the Georgia charter of 1732. By the words of the last, a grant is pa.s.sed to all territories along the sea-coast, from the River Savannah to the most southern stream 'of another great river, called the Alatamaha, and westward from the heads of the said rivers in a direct line to the South Seas.' To show that Britain was not the only European nation, who, in her territorial claims on this continent, had had an eye to the rule of a.s.suming water-courses to be the fittest boundaries, I also cited the charter of Louis XIV. to Crozat, by which 'all the country drained by the waters emptying directly or indirectly into the Mississippi,' is declared to be comprehended under the name, and within the limits of Louisiana."

In respect to the t.i.tle derived by the United States from Spain, Mr. Rush contended that, "if Great Britain had put forth no claims on the north-west coast, founded _on prior occupation_, still less could she ever have established any, at any period, founded _on prior discovery_. The superior t.i.tle of Spain on this ground, as well as others, was indeed capable of demonstration." _Russia had acknowledged it in 1790_, as the State Papers of the Nootka Sound controversy would show. The memorial of the Spanish Court to the British minister on that occasion expressly a.s.serted, that notwithstanding all the attempted encroachments upon the Spanish coasts of the Pacific Ocean, Spain had preserved her possessions there entire,--possessions which she had constantly, and before all Europe, on that and other occasions, declared to extend to as high at least as the 60th degree of north lat.i.tude. The very first article of the Nootka Sound Convention attested, I said, the superiority of her t.i.tle; for whilst by it the nations of Europe generally were allowed to make settlements on that coast, it was only for the purposes of trade with the natives, thereby excluding the right of any exclusive or colonial establishments for other purposes. As to any claim on the part of Britain under the voyage of Captain Cook, I remarked that this was sufficiently superseded (pa.s.sing by every thing else) by the Journal of the Spanish expedition from San Blas in 1775, kept by Don Antonio Maurelle, for an account of which I referred the British plenipotentiaries to the work of Daines Barrington, a British author. In that expedition, consisting of a frigate and a schooner, fitted out by the Viceroy of Mexico, the north-west coast was visited in lat.i.tude 45, 47, 49, 53, 55, 56, 57, and 58 degrees, not one of which points there was good reason for believing had ever been explored, or as much as seen, up to that day, by any navigator of Great Britain. There was, too, I said, the voyage of Juan Perez, prior to 1775; that of Aguilar, in 1601, who explored that coast in lat.i.tude 45; that of De Fuca in 1592, who explored it in lat.i.tude 48, _giving the name_, which _they still bore_, to the straits in that lat.i.tude, without going through a much longer list of other early Spanish navigators in that sea, whose discoveries were confessedly of a nature to put out of view those of all other nations. I finished by saying, that in the opinion of my government, the t.i.tle to the United States to the whole of that coast, from lat.i.tude 42 to as far north as lat.i.tude 60, was therefore superior to that of Great Britain or any other Power; first, through the proper claim of the United States by discovery and settlement, and secondly, as now standing in the place of Spain, and holding in their hands all her t.i.tle."

The British plenipotentiaries, in their reply, repeated their animated denials of the t.i.tle of the United States, as alleged to have been acquired by themselves, enlarging and insisting upon their objections to it, as already stated. Nor were they less decided in their renewed impeachments of the t.i.tle of Spain. They said that it was well known to them what had formerly been the pretensions of Spain to absolute sovereignty and dominion in the South Seas, and over all the sh.o.r.es of America which they washed: but that these were pretensions which Britain had never admitted: on the contrary, had strenuously resisted them. They referred to the note of the British minister to the Court of Spain, of May 16, 1790, in which Britain had not only a.s.serted a full right to an uninterrupted commerce and navigation in the Pacific, but also that of forming, with the consent of the natives, whatever establishments she thought proper on the north-west coast, in parts not already occupied by other nations. This had been the doctrine of Great Britain, and from it, nothing that was due in her estimation to other Powers, now called upon her in any degree to depart.

As to the alleged prior discoveries of Spain all along that coast, Britain did not admit them but with great qualification. She could never admit that the mere fact of Spanish navigators having first seen the coast at particular points, even where this was capable of being substantiated as the fact, without any subsequent or efficient acts of sovereignty or settlement on the part of Spain, was sufficient to exclude all other nations from that portion of the globe. Besides, they said, even on the score of prior discovery on that coast, at least as far up as 48 north lat.i.tude, Britain herself had a claim over all other nations. "Here they referred to Drake's expedition in 1578, who, as they said, explored that coast on the part of England, from 37 to 48 N., making formal claim to these limits in the name of Elizabeth, and giving the name of New Albion to all the country which they comprehended. Was this, they asked, to be reputed nothing in the comparison of prior discoveries, and did it not even take in a large part of the very coast now claimed by the United States, as of prior discovery on their side?"

Mr. Rush in reply contended, "as to Drake, although Fleurieu, in his introduction to Marchand, did a.s.sert that he got as far north as 48, yet Hakluyt, who wrote about the time that Drake flourished, informs us that he got no higher than 43, having put back at that point from extremity of cold. All the later authors or compilers, also, who spoke of his voyage, however they might differ as to the degree of lat.i.tude to which he went, adopted from Hakluyt this fact, of his having turned back from intensity of weather. The preponderance of probability, therefore, I alleged, as well as of authority was, that Drake did not get beyond 43 along that coast. At all events, it was certain that he had made no settlements there, and the absence of these would, under the doctrine of great Britain, as applied by her to Spain, prevent any t.i.tle whatever attaching to his supposed discoveries. They were moreover put out of view by the treaty of 1763, by which Great Britain agreed to consider the Mississippi as the western boundary upon that continent."

He concluded with re-a.s.serting formally, "the full and exclusive sovereignty of the United States over the whole of the territory beyond the Rocky Mountains washed by the Columbia River, in manner and extent as stated, subject, of course, to whatever existing conventional arrangements they may have formed in regard to it with other Powers. Their t.i.tle to this whole country they considered as not to be shaken. It had often been proclaimed in the legislative discussions of the nation, and was afterwards public before the world. Its broad and stable foundations were laid in the first uncontradicted discovery of that river, both at its mouth and its source, followed up by an effective settlement, and that settlement the earliest ever made upon its banks. If a t.i.tle in the United States, thus transcendant, needed confirmation, it might be sought in their now uniting to it the t.i.tle of Spain. It was not the intention of the United States, I remarked, to repose upon any of the extreme pretensions of that Power to speculative dominion in those seas, which grew up in less enlightened ages, however countenanced in those ages; nor had I, as their plenipotentiary, sought any aid from such pretensions; but to the extent of the just claims of Spain, grounded upon her fair enterprise and resources, at periods when her renown for both filled all Europe, the United States had succeeded, and upon claims of this character it had, therefore, become as well their right as their duty to insist."

The British plenipotentiaries, in conclusion, with a view as they said of laying a foundation of harmony between the two governments, proposed that the third article of the Convention of 1818 should now terminate. That "the boundary line between the territories respectively claimed by the two Powers, westward of the Rocky Mountains, should be drawn due west, along the 49th parallel of lat.i.tude, to the point where it strikes the north-easternmost branch of the Columbia, and thence down along the middle of the Columbia to the Pacific Ocean: the navigation of this river to be for ever free to the subjects or citizens of both nations." They remarked, "that in submitting it, they considered Great Britain as departing largely from the full extent of her right, and that, if accepted by the United States, it would impose upon her the necessity of breaking up four or five settlements, formed by her subjects within the limits that would become prohibited, and that they had formed, under the belief of their full rights as British subjects to settle there. But their government was willing, they said, to make these surrenders, for so they considered them, in a spirit of compromise, on points where the two nations stood so divided."

Mr. Rush, in reply, declared his utter inability to accept such a proposal, and in return consented, "in compliance with this spirit, and in order to meet Great Britain on ground that might be deemed middle, to vary so far the terms of his own proposal, as to shift the southern line as low as 49 in place of 51." "I desired it," he writes, "to be understood, that this was the extreme limit to which I was authorised to go; and that, in being willing to make this change, I, too, considered the United States as abating their rights, in the hope of being able to put an end to all conflict of claims between the two nations to the coast and country in dispute."

The British commissioners declined acceding to this proposal, and as neither party was disposed to make any modification in their ultimatum, the negotiation was brought to a close.

CHAPTER XV.