The Oregon Territory Part 11

EXAMINATION OF THE CLAIMS OF THE UNITED STATES.

Exclusive Sovereignty for the first Time claimed by the United States over the Valley of the Columbia.--The Statements relied upon to support this, not correct.--The Multnomah River erroneously laid down in Maps.--Willamette Settlement--Source of the Multnomah, or Willamette, in about 43 45' N. L.--Clarke's River.--Source in 46 30'.--The Northernmost Branch of the Columbia discovered and explored by Mr. Thomson.--The Pacific Fur Company not authorised by the United States Government.--The American Fur Company, chartered by the State of New York in 1809, a different Company for a different Purpose.--The a.s.sociation dissolved at Astoria before the Arrival of H. B. M.'s Sloop of War the Rac.o.o.n.--Protection of the National Flag.--Vattel.--Kluber.--Letter from Mr. Gallatin to Mr. Astor.--A Commission from the State required in respect of acquiring Territory.--t.i.tle by Discovery of the Mouth of a River.--Rivers Appendages to a Territory.--Vattel.--Common Use of great Rivers.--Mr.

Wheaton.--Effect of the Principle to make the Highlands, not the Water Courses, the Boundaries.--Different Principle advanced by Messrs.

Pickney & Monroe, in 1805, founded on Extent of Sea Coast.--Vattel.--Charters of Georgia, Pennsylvania, and Carolina.--Crozat's Grant opposed to the Spanish Discovery of the Mississippi.--Inconvenience in applying the Principle.--Conflict of t.i.tles.--Course of the Columbia River.--Valley of the Columbia River does not extend across the Cascade Range, on the North Side of the River.--Derivative t.i.tle of the United States from Spain.--Spanish Version, in 1790, of Encroachments by Russia.--The Russian Statement.--The Russian American Company, in 1799--Lord Stowell.--Discoveries require Notification.--The Convention of the Escurial admitted to contain Recognitions of Rights.--Meaning of the Word "Settlements."

It will have been seen in the previous chapter that Messrs. Rush and Gallatin, in the negotiations of 1823-24, no longer confined themselves to the a.s.sertion of an imperfect right on the part of the United States, good at least against Great Britain, as in the negotiations of 1818, but set up a claim on the part of the United States, _in their own right, to absolute and exclusive sovereignty and dominion_ over the whole of the country westward of the Rocky Mountains, from 42 to at least as high up as 51.

This claim they rested upon their first discovery of the River Columbia, followed up by an effective settlement at its mouth.

In respect to the discovery of the river, they alleged the same facts as in 1818, namely, that Captain Gray, in the American ship Columbia, first discovered and entered its mouth, and that Captains Lewis and Clarke first explored it from its sources to the ocean. In respect to settlement, the establishment at Astoria was, as before, relied upon, having been formally surrendered up to the United States at the return of peace.

The American plenipotentiaries grounded the extent of the exclusive claim of the United States, _in their own right_, upon the fact that "it had been ascertained that the Columbia extended by the River Multnomah to as low as 42 north, and by Clarke's River to a point as high up as 51, if not beyond that point." In the first place, then, neither of these statements is correct. The erroneous notions respecting the Multnomah River have been already alluded to in the chapter upon the Treaty of Washington. To a similar purport, in the map prefixed to Lewis and Clarke's Travels, we find the source of the Multnomah laid down in 38 45'

north lat.i.tude, 115 45' west longitude from Greenwich, the river being represented to run a due north-west course, and to empty itself into the Columbia within about 140 miles of the sea. In the narrative of the expedition, Chapter XX., it is expressly stated, that they pa.s.sed the mouth of this river in their way down the Columbia to the Pacific, and afterwards found it to be the Multnomah; and in Chapter XXV. it is said that "the Indians call it Multnomah from a nation of the same name, residing near it, on Wappatoo Island." This Island lies in the immediate mouth of the river, dividing the channel into two parts. Now this river is the modern Willamette, which enters the Columbia from the south, about five miles below Fort Vancouver, about eighty-five miles from the sea, according to Mr. Dunn, and in the valley of this river, in a very fertile district, about fifty miles from its entrance into the Columbia, is the Willamette Settlement, where the majority of the colonists from the United States are located, though according to Commander Wilkes' account, (vol.

iv., chap. x., p. 349, 8vo. ed.,) many of the farms belong to Canadians who have been in the service of the Hudson's Bay Company. Actual survey, as may be seen from Commander Wilkes' map, has determined that the southernmost source of the Multnomah, or Willamette, is in about 43 45'

N. L.

In respect to Clarke's River, the map of Lewis and Clarke places the highest source of it in about 45 30', whilst Commander Wilkes' map determines it to be in about 46 30'. It is the same as the Flathead River, and it joins the main stream of the Columbia a little below the 49th parallel. It thus appears that neither of the rivers upon which Mr.

Rush relied, supports his claim to the extent which he maintained. Had he grounded the t.i.tle of the United States towards the south upon the source of the Lewis or Snake River, which he may possibly have intended to do, this would have given him the 42d parallel to commence with, and Clarke's River would have carried the claim of the United States up to very nearly 49 at its junction with the northern branch, but no higher. Lewis and Clarke saw nothing, and knew nothing, of the northernmost branch of the Columbia, which Mr. Thomson, the astronomer of the North-west Company, first explored to its junction with Clarke's River, and thence to the sea, in 1811, as already (p. 21) detailed.

In reference to the settlement of Astoria, on the southern bank of the Columbia, at its mouth, the Pacific Fur Company does not appear to have been authorised by the United States Government to make any effective settlement there. On the contrary, it is a.s.serted by writers in the United States, who, it may be presumed, are well informed on the subject, and the Charleston Mercury of October 11, 1845, expressly a.s.serts the fact,--"that the United States Government, though earnestly solicited by Mr. Astor, refused to authorise or sanction his expedition." Mr. Astor himself states, in his letter of January 4, 1823, to Mr. Adams, quoted by Mr.

Greenhow in his Appendix, p. 441, that it was as late as February 1813, when he made an application to the Secretary of State at Washington, but no reply was given to it. In addition, although Mr. Astor, according to Mr. Washington Irving, obtained a charter from the State of New York in 1809, incorporating a company under the name of the American Fur Company, this was intended to carry on the fur trade in the Atlantic States, and was a totally distinct speculation from the Pacific Fur Company, which was not formed before July 1810, and was a purely voluntary a.s.sociation for commercial purposes, consisting of ten partners, of whom Mr. Astor was the chief. Of these, however, six were British subjects, who, according to Mr.

Greenhow, p. 294, communicated the plan of the enterprise to the British minister at Washington, and were a.s.sured by him, "that in case of a war between the two nations they would be respected as _British subjects and merchants_." Such a body of traders could hardly be considered to invest their settlement at Astoria with any distinct _national_ character, much less to represent the sovereignty of the United States of America, so as, in taking possession of a portion of territory at the mouth of the Columbia, to acquire for the United States the _empire_ or sovereignty of it, at the same time with the _domain_.

It must be kept in mind that the Pacific Fur Company was a purely voluntary a.s.sociation, a mercantile firm in fact, not incorporated, as the American Fur Company had been, by an Act of the Legislature of the State of New York, nor, though countenanced by the Government of the United States, as it well deserved to be, in any respect authorised by it. "The a.s.sociation," according to Mr. Washington Irving, "if successful, was to continue for twenty years, but the _parties had full power to abandon and dissolve it_ within the first five years, should it be found unprofitable." And thus, we find, that the a.s.sociation was dissolved by the unanimous act of the partners present at Astoria on the 1st of July 1813, and the establishment itself, with the furs and stock in hand, transferred by sale on the 6th of October to the North-west Company, so that when the British sloop-of-war the Rac.o.o.n arrived on the 1st of December, the settlement at Astoria was the property of the North-west Company. Captain Black, formally took possession of Astoria in the name of his Britannic Majesty, according to the narrative of Mr. John Ross c.o.x, and having hoisted the British ensign, named it Fort George. There is no mention however of the flag of the United States having been struck on this occasion. Thus, indeed, the territory was for the first time taken possession of by a person "_furnished with a commission from his sovereign_," and from this time Astoria became a settlement of the British Crown, not by the rights of war, but by a national act of taking possession. At a subsequent period, however, upon the representation of the Government of the United States, the British Government, in conformity, as it was led to suppose, to the first article of the Treaty of Ghent, directed the settlement of Fort George to be restored to the United States. The British ensign was then formally struck, and the flag of the United States hoisted. By this act of cession on the part of the Crown of Great Britain, and the subsequent taking possession of the place by Mr. Prevost, as agent for the United States, Astoria for the first time acquired the national character of a settlement of the United States; and though the facts of the case, when better understood, might not have brought Astoria within the scope of the first article of the Treaty of Ghent, still the act of cession, having been a voluntary act on the part of the British Government, would carry with it a.n.a.logous consequences to those which followed the restoration of the settlement at Nootka Sound, on the part of Spain, to Great Britain, by virtue of the first article of the Treaty of the Escurial. From this period, then, the first authoritative occupation of any portion of the Oregon territory by the United States is to be dated.

But it was alleged on the part of the United States, that the mouth of the Columbia river had been first discovered and entered by Captain Gray, a citizen of the United States, in a vessel sailing under the flag of the United States: and when it was urged by the British commissioners that the discovery was not made by a national ship, or under national authority, it was stated by Mr. Rush, that "the United States could admit 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 doctrine adduced in the above pa.s.sage is not in accordance either with the practice of nations, or the principles of natural law. The occasion here contemplated was the discovery of a country with a view of taking possession of it. The practice of nations, according to Vattel, has usually respected such a discovery, when made by navigators _furnished with a commission from their sovereign_, but not otherwise; and according to Kluber, in order that an act of occupation should be legitimate,--and the same observation applies to all the acts which are accessorial to occupation,--the _state_ ought to have the intention of taking possession.

It may be perfectly true that a merchant vessel, sailing under the flag of a nation, is under the protection of the nation, and is to be identified with the rights of the nation, within the limits of its own proper character, that is, for all the purposes of commerce, but not beyond those limits: the flag, indeed, ent.i.tles it to all the privileges which the nation has secured to her citizens by treaties of commerce, but the ship is the property of individuals, and the captain is only the agent of the owners: he possesses no authority from the nation, unlike the captain of a vessel of the state, who is the agent of the state, and for whose acts the state is responsible towards other states. The Government of the United States, however, did not consider, about the time of these transactions at Astoria, that a trading vessel, sailing under the command of a private citizen, could claim the protection of the flag in the same sense in which a ship of the state possesses it, under the command of a commissioned officer. Mr. Washington Irving has annexed, in the Appendix to his "Astoria," a letter from Mr. Gallatin himself, addressed to Mr. Astor, in August 6, 1835:--"During that period I visited Washington twice--in October or November 1815, and in March 1816. On one of these two occasions, and I believe on the last, you mentioned to me that you were disposed once more to renew the attempt and to _re-establish_ Astoria, provided you had _the protection of the American flag_: for which purpose _a lieutenant's command_ would be sufficient to you. You requested me to mention this to the President, which I did. Mr. Madison said he would consider the subject; and, although he did not commit himself, I thought that he received the proposal favourably." This distinction, which the highest authorities in the United States seem at that time to have fully appreciated, between the protection of the national flag in respect of acquiring territory, and the protection of it in respect of carrying on commerce, namely, that a commission from the state is required to convey the former, whilst the latter is enjoyed at his own will by every citizen, is seemingly at variance with Mr. Rush's remarks.

The principle, however, upon which Captain Gray's discovery, on the hypothesis that it was a national discovery, was alleged to lead to such important consequences, was thus stated:--"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." This is a very sweeping declaration, more particularly when applied to the rivers of the New World; and, in order that it should command the acquiescence of other states, it must be agreeable either to the principles of natural law, or to the practice of nations.

The principles involved in this position seem to be, that the discoverer of the mouth of a river is ent.i.tled to the exclusive use of the river; and the exclusive use of the river ent.i.tles him to the property of its banks.

This is an inversion of the ordinary principles of natural law, which regards rivers and lakes as appendages to a territory, the use of which is necessary for the perfect enjoyment of the territory, and rights of property in them only as acquired through rights of property in the banks.

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 of a supposition that the nation did not intend to reserve it for itself.

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 it 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 an inverse ratio with the breadth of a river; for the narrower the river is, the more do the safety and convenience of its use require that it should be subject to the empire and property of a nation."

According to the Civil Law, rivers (flumina perennia,) as distinguished from streams (rivi,) were deemed public, which, like the sea sh.o.r.e, all might use. In an a.n.a.logous manner, in reference to great rivers flowing into the ocean, a common use is presumed, unless an exclusive t.i.tle can be made out, either from prescription or the acknowledgment of other states.

Thus, Mr. Wheaton, in his Elements of International Law, (part ii., ch.

iv., -- 18,) in referring to the Treaty of San Lorenzo el Real, in 1795, by the 4th article of which his Catholic Majesty agreed that the navigation of the Mississippi, from its sources to the ocean, should be free to the citizens of the United States, (Martens, Traites, vi., p. 142,) Spain having become at this time possessed of both banks of the Mississippi at its mouth, observes:--"The right of the United States to partic.i.p.ate with Spain in the navigation of the Mississippi was rested by the American Government on the sentiment, written in deep characters on the heart of man, that the ocean is free to all men, and its rivers to all their inhabitants." Thus, indeed, the use of a river is considered by Mr.

Wheaton to be accessory to inhabitancy; in other words, to follow the property in the banks.

The principle, however, upon which the commissioner of the United States defended his claim to attach such an extent of country to the discovery of Captain Gray, was, that it was at once _reasonable_ and _moderate_; reasonable, because there must be some rule for determining the local extent of a discovery, and none was more proper than taking the water-courses which nature had laid down, both as the fair limits of the country, and as indispensable to its use and value; moderate, because the natives of Europe had often, under their rights of discovery, carried their claims much further. As to the reasonableness of the rule, if Mr.

Rush meant that rivers were the natural and most convenient boundaries of territories, this proposition would command a ready a.s.sent: but the result of the principle which he set up as to the extent of the discovery, would be to make the high-lands, and not the water-courses, the territorial limits. In respect, however, to the moderation of the principle, when the magnitude of the great rivers of America, the Amazons for example, or the Mississippi, is taken into consideration, the absolute moderation of the rule would be questionable. But its moderation was insisted upon in comparison with the extensive grants of the European sovereigns. The comparative moderation, however, of a principle will not be sufficient to give it validity as a principle of international law, if it should be not in accordance with the practice of nations.

But Mr. Monroe, under whose administration as President of the United States this principle was advanced by Mr. Rush, had, in the negotiations which he, in conjunction with Mr. Pinckney, carried on in 1805 with Spain, propounded a very different principle, viz.: "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."

Now Vattel (i., -- 266) observes,--"When a nation takes possession of a country, with a view to settle there, it takes possession of everything included in it, as lands, lakes, rivers, &c."

Here then the t.i.tle to the river is made subordinate to the t.i.tle to the coast, and such is the case in the charters of the Crown of England, which Mr. Rush alludes to as confirmatory of his view. The Georgia Charter of 1732, for instance, of which he cites a portion, granted "all the lands and territories from the most northern stream of the Savannah river, all _along the sea coast_ to the southward unto the most southern stream of the Alatamaha river, and westward _from the heads of the said rivers respectively in direct lines to the South Seas_, and all that s.p.a.ce, circuit, and precinct of land lying _within the said boundaries_."

(Oldmixon's History of the British Colonies in America, i., p. 525.)

The same principle is sanctioned in the grant of Pennsylvania and of Carolina, and it is perfectly reasonable: for, as the discovery has taken place from the sea, the approach to the territory is presumed to be from the sea, so that the occupant of the sea-coast will necessarily bar the way to any second comer: and as he is supposed, in all these grants, to have settled in vacant territory, he will naturally be ent.i.tled to extend his settlement over the vacant district, as there will be no other civilised power in his way.

Mr. Rush, in order 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, cited the charter of Louis XIV. to Crozat. But this very charter bears testimony against the principle advanced by Mr. Rush; for it is undeniable that the Spaniards discovered the mouth of the Mississippi about 1540; yet, in the face of this fact, the French king granted to Crozat all the territory between New Mexico on the west and Carolina on the east, as far as the sources of the St. Louis, or Mississippi, under the name of the Government of Louisiana, as a part of his possessions, though Spain had never ceded her t.i.tle to France; on the authority, according to Messrs. Pinckney and Monroe, of the discovery made by the French of the upper part of the river, as low down as the Arkansas in 1673, and to its mouth in 1680, and of a settlement upon the sea coast in the bay of St. Bernard, by La Salle, in 1685. (British and Foreign State Papers, 1817-18, p. 327.) It was in reference to this settlement that the principle of the possession of the coast ent.i.tling to the possession of the interior country, had been propounded to Spain on the part of the United States.

But if we examine this principle in its application, we shall find it lead to very great inconveniences. In the case of the Columbia River itself, Mr. Rush claimed the whole of the northwest coast, as far north as the 51st parallel of north lat.i.tude, because the north branch of the river rises in that lat.i.tude. But the mouth of Frazer's River is in 49 N. L., so that the discoverer of the mouth of Frazer's River would be ent.i.tled to the coast above the 49th parallel, unless Mr. Greenhow means to confine the application of his principle to what is strictly the valley of the river, and this would be to make the headlands, as before remarked, the lines of territorial demarcation. This certainly would be an intelligible rule, whilst any other interpretation of his meaning would lead to an endless conflict of t.i.tles. For otherwise, as observed, the discoverer of the mouth of Frazer's River would clash with the discoverer of the mouth of the Columbia River, as Frazer's River extends from 54 20' to 49, and the discoverer of the Salmon River, which rises in about 53, and, after pursuing a northward course, empties itself into the sea a little below 54, would clash with the discoverer of the mouth of Frazer's River. Mr.

Rush's principle seems to a.s.sume that all the main rivers of a country pursue a parallel course, and that all the great valleys and mountain ranges are conformable, which however is not the case. Thus the Columbia, after following for some time, in a southward direction, a parallel course to Frazer's River, is suddenly turned aside to the west by the Blue Mountains, which it meets in about 46 N. L., and arriving at a gap in the Cascade range, finds its way at once to the sea along that parallel, instead of forming a great lake between the Cascade and Blue Mountains, and ultimately working its way out where the Klamet at present empties itself into the Pacific. Mr. Rush's principle, therefore, does not seem to recommend itself by its convenience; but, a.s.suming for a moment that it is a recognised principle of international law, 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 the princ.i.p.al river and its tributary streams," the United States would only be ent.i.tled to the valley of the Columbia River, to the country watered by the river itself, and its tributaries: it could not claim to come across the Cascade range on the northern side of the Columbia, to cross the highlands which turn off the waters on their eastern side into the Columbia, and on their western side into Admiralty Inlet; yet, by virtue of the first entrance by Gray of the mouth of the Columbia River, the United States claim, "in their own right, and under their absolute and exclusive sovereignty and dominion, the whole of the country west of the Rocky Mountains, from the 42d to at least as high up as the 51st degree of north lat.i.tude."

Such were the grounds on which the original t.i.tle of the United States was set up; her derivative t.i.tle on this occasion was founded upon the cession of the t.i.tle of Spain by the Treaty of Washington. In support of the Spanish t.i.tle, Mr. Rush alleged that "Russia had acknowledged it in 1790, as the State Papers of the Nootka Sound controversy would show. But the memorial of the Court of Spain simply states, that in reply to the remonstrance of Spain against the encroachments of Russian navigators within the limits of Spanish America (limits situated within Prince William's Strait,) Russia declared "that she had given orders that her subjects should make no settlement in places belonging to other Powers, and that if those orders had been violated, and any had been made in Spanish America, she desired the King would put a stop to them in a friendly manner." (Annual Register, 1790, p. 295.) But Russia did not acknowledge the limits of Spanish America, as set up by Spain; on the contrary, we find M. de Poletica, the Russian minister at Washington, in his letter to Mr. Adams of the 28th February 1822, distinctly a.s.serting that Russian navigators had pushed their discoveries as far south as the forty-ninth degree of north lat.i.tude in 1741, and that in 1789 there were Russian colonies in Vancouver's island, which the Spanish authorities did not disturb, and that Vancouver found a Russian establishment in the Bay of Koniac. (British and Foreign State Papers 1822-23.) Vancouver himself states, that he found a settlement of about one hundred Russians at Port Etches, on the eastern side of Prince William's Sound, and M. de Poletica, in his negotiations with Mr. Adams, maintained the authenticity of the statement in the two official letters preserved in the Archives of the Marine at Paris, which report that in 1789 Captain Haro, in the Spanish packet St. Charles, found a Russian settlement in the lat.i.tude of 48 and 49. (State Papers, 1825-26, p. 500.) Fleurieu, the French hydrographer, considers these numbers to be erroneous, and that 58 and 59 ought to be read; but he gives no other reason than that the English traders had fully ascertained that the Russians had no establishment to the south of Nootka Sound, which is between 49 and 50 degrees. So far, at least, were the Russians from practically recognising the t.i.tle of Spain up to 60 north lat.i.tude, that in 1799 the Emperor Paul granted to the Russian American Company the exclusive enjoyment of the north-west coast as far south as 55 north lat., in virtue of the discovery of it by Russian navigators, and authorised them to extend their discoveries to the south of 55, and to occupy all such territories as should not have been previously occupied and placed under subjection by any other nation, (Greenhow, p. 333.) It was further urged by Mr. Rush, that Spain had expressly a.s.serted in 1790, that her territories extended as far as the 60th degree of north lat.i.tude; and that she had always maintained her possessions entire, notwithstanding attempted encroachments upon them.

This, however, was not admitted by the British Minister at the Court of Madrid: moreover, it was by implication denied in the very first article of the treaty, by which it was stipulated that the buildings and tracts of land on the north-west coast of America, or on islands adjacent to the continent, of which the subjects of his Britannic Majesty had been _dispossessed_ about the middle of April, 1789, by the Spaniards, should be restored to the said British subjects. Again, it was contended by Mr.

Rush, that "any claim on the part of Great Britain, under the voyage of Captain Cook, 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, and published by Daines Barrington, a British author,"

in his Miscellanies. It is, however, quite a novel view of the law of nations, that a _clandestine_ discovery should be set up to supersede a _patent_ discovery, notified to all the world by the authoritative publication of the facts. Thus Lord Stowell, in the case of the Fama (5 Robinson's Reports, 115,) says, "In newly-discovered countries, where a t.i.tle is meant to be established for the first time, some act of possession is usually done, and _proclaimed as a notification of the fact_. In a similar manner, in the case of derivative t.i.tle, it is a recognised rule of international law, that sovereignty does not pa.s.s by the mere words of a treaty, without actual delivery. When stipulations of treaties," observes Lord Stowell, "for ceding particular countries are to be carried into execution, solemn instruments of cession are drawn up, and adequate powers are _formally_ given to the persons by whom the actual delivery is to be made. In modern times more especially, such a proceeding is become almost a matter of necessity, with regard to the territorial establishments of the states of Europe in the New World. The treaties by which they are affected may not be known to them for many months after they are made. Many articles must remain _executory_ only, and not executed till carried into effect; and until that is done by _some public act, the former sovereignty must remain_. In ill.u.s.tration of the practice of nations being in accordance with this principle, that eminent judge cited the instances of the cession of Nova Scotia to France in 1667, of Louisiana to Spain in 1762, and of East Florida to Spain in 1803, in all of which cases the sovereignty was held not to have pa.s.sed by the treaty, but by a subsequent formal and public act of notification. Claims of territory are claims of a most sacred nature, and, as the case of vacant lands, a claim of discovery by one nation is to supersede and extinguish thence-forward the rights of all other nations to take possession of the country as vacant, the reason of the thing requires that the newly-acquired character of the country should be indicated by some public act. Thus Mr. Greenhow (p. 116) observes, that the Government of Spain, by its silence as to the results of the expedition of Perez in 1744, deprived itself "of the means of establishing, beyond question, his claim to the discovery of Nootka Sound, which is now, by general consent, a.s.signed to Captain Cook."

In this conference, the Convention of the Escurial, or, as it was termed, the Nootka Sound Convention, was introduced by Mr. Rush, in accordance with the express instructions of the United States Government. Mr.

Greenhow seems to consider that this was an impolitic step on the part of the United States, as they thereby admitted it to be a subsisting treaty.

Mr. Rush certainly maintained that the convention contained _recognitions of rights_, such as the exclusive colonial rights of Spain, but he further contended that, "whilst, by it, the nations of Europe generally were allowed to make settlements on that coast, _it was only, for the purposes of the trade with the natives_, thereby excluding the right of any exclusive or colonial establishments for other purposes." To the same purport Mr. Greenhow (p. 340) in a note says, "The principles settled by the Nootka Sound Convention were:--

"1st. That the rights of fishing in the South Seas; of trading with the natives of the north-west coast of America; and _of making settlements on the coast itself, for the purposes of that trade_, north of the actual settlements of Spain, were common to all the European nations, and of course to the United States."

This view, however, of the purport of the Convention of the Escurial, falls short of the full bearing of the 3rd article, which is the one alluded to; by which it was agreed, "that their respective subjects shall not be disturbed or molested, either in navigating or carrying on their fisheries in the Pacific Ocean, or the South Seas, or in landing on the coasts of those seas, in places not already occupied, for the purpose of carrying on their commerce with the natives of the country, or _of making settlements_ there." There is no restriction here as to the object of the settlement: on the contrary, _the making settlements_ is specified as distinct _from the landing on the coast for the purposes of trade_. It is obvious that, if the intention of the framers of the convention had been such as a.s.serted by Mr. Rush, they would have worded the article otherwise, viz., "or in landing on the coasts of those seas, or in making settlements there, in places not already occupied, for the purpose of carrying on their commerce with the natives of the country." The argument, therefore, advanced by Mr. Rush, must, upon the face of the words of it, be held to give an imperfect view of the rights mutually acknowledged by the Treaty of the Escurial.

But the meaning of the word "settlement" in the treaty will be obvious, if either the antecedent facts, or the antecedent negotiations, are regarded.

In the memorial of the Court of Spain [Annual Register, 1790, p. 295,] it is stated, that before the visit of Martinez to Nootka, Spain did not know that the English had endeavoured _to make settlements_ on the northern parts of the Southern Ocean, though she had been aware of trespa.s.ses made by the English on some of the islands of those coasts. Martinez, on arriving at Nootka, had found two American vessels, [the Columbia and Washington,] but as it appeared from their papers that they were driven there by distress, and only came in there to refit, he permitted them to proceed upon their voyage.

"He also found there the Iphigenia from Macao, under Portuguese colours, which had a pa.s.sport from the Governor; and though he [the captain] came manifestly with a view to trade there, yet the Spanish Admiral, when he saw his instructions, gave him leave to depart, upon his signing an engagement to pay the value of the vessel, should the Government of Mexico declare it a lawful prize.

"With this vessel there came a second [the North-west America,] which the Admiral detained and a few days after a third, named the Argonaut, from the above-mentioned place. The captain [Colnett] of this latter was an Englishman. He came _not only to trade_, but brought every thing with him proper _to form a settlement there_ and to fortify it. This, notwithstanding the remonstrances of the Spanish Admiral, he persevered in, and was detained, together with his vessel.

"After him came a fourth English vessel, named the Princess Royal, and evidently _for the same purposes_. She likewise was detained, and sent into Port St. Blas, where the pilot of the Argonaut made away with himself."

What these purposes were, is more fully shown from the letter of instructions which Capt. Colnett carried with him, and which is to be found in the Appendix to Meares' Voyages, having been annexed to Meares'

Memorial.

"In planning a factory on the coast of America, we look to _a solid establishment_, and not to one that is to be abandoned at pleasure. We authorise you to fix it at the most convenient station, only to place _your colony_ in peace and security, and fully protected from the fear of the smallest sinister accident. The object of a port of this kind is to draw the Indians to it, to lay up the small vessels in the winter season, to build, and for other commercial purposes. When this point is effected, different trading houses will be established at stations, that your knowledge of the coast and its commerce point out to be most advantageous."

That the avowed object of Capt. Colnett's expedition was in conformity with these instructions, is confirmed by the letter which Gray, the captain of the Washington, and Ingraham, the mate of the Columbia, both of them citizens of the United States, addressed to the Spanish commandant from Nootka Sound in August 3, 1792, and which Mr. Greenhow has published in his Appendix [p. 416]--"It seems Captain Meares, with some other Englishmen at Macao, had concluded _to erect a fort and settle a colony_ in Nootka Sound; from what authority we cannot say. However, on the arrival of the Argonaut, we _heard Captain Colnett inform the Spanish commodore he had come for that purpose_, and to hoist the British flag, take formal possession, &c.; to which the commodore answered, he had taken possession already in the name of his Catholic Majesty; on which Capt.

Colnett asked, if he would be prevented from building a house in the port.

The commodore, mistaking his meaning, answered him he was at liberty to erect a tent, get wood and water, &c., after which, he was at liberty to depart when he pleased; but Capt. Colnett said, that was not what he wanted, but to build a block-house, erect a fort, and _settle a colony_ for the Crown of Great Britain. Don Estevan Jose Martinez answered, _No_; that in doing that, he should violate the orders of his king, run a risk of losing his commission, and not only that, but it would be relinquishing the _Spaniards' claim to the coast_; besides, Don Martinez observed, _the vessels did not belong to the King_, nor was he intrusted with powers to transact such public business. On which Capt. Colnett answered, he was a king's officer: but Don Estevan replied, his being in the navy was of no consequence in the business."

The authorised Spanish account in the Introduction of the Voyage of Galiano and Valdes [p. cvii.] is in perfect harmony with the contemporaneous American statement. Mr. Greenhow has quoted a portion of it in a note to his work, [p. 197,] which may be referred to more conveniently than the Spanish original, of which the following is a translation:--"There entered the same port, on the 2d of July, the English packet-boat Argonaut, despatched from Macao by the English Company. Her captain, James Colnett, was furnished with a license from the King of England, authorising him [iba autorizado con ordenes del Rey] _to take possession of the Port of Nootka, to fortify himself in it, and to establish a factory_ for storing the skins of the sea-otter, and to preclude other nations from engaging in that trade, with which object he was to build a large ship and a schooner. So manifest an infringement _of territorial rights_ led to an obstinate contest between the Spanish commandant and the English captain, which extended to Europe, and alarmed the two Powers, threatening them for some time with war and devastation, the fatal results of discord. Thus a dispute about the possession of a narrow territory, inhabited only by wretched Indians, and distant six thousand navigable leagues from Europe, threatened to produce the most disastrous consequences to the whole world, the invariable result, when the ambition or vanity of nations intervenes, and prudence and moderation are wanting in contesting rights of property."

Spain, at the commencement of the negotiations, expressly required through her amba.s.sador at the Court of London, on February 10, 1790, "that the parties who had planned these expeditions should be punished, in order to deter others _from making settlements on territories occupied_ and frequented by the Spaniards for a number of years." Great Britain, in undertaking that her subjects should not act against the just and acknowledged rights of Spain, maintained for them an indisputable right to the enjoyment of a free and uninterrupted navigation, commerce, and fishery, and to the possession of such _establishments_ as they should form with the consent of the natives of the country, _not previously occupied_ by any of the European nations. The word "establishment" here made use of is synonymous with "settlement," _etabliss.e.m.e.nt_ being the expression in the French version of the treaty wherever _settlement_ occurs in the English version. Both these terms have a recognised meaning in the language of treaties, of a far wider extent than that to which Mr.

Rush sought to limit the language of the Convention of the Escurial. In the convention itself the word "settlement" is applied, in the 4th article, to the Spanish colonies; in the 5th, it is applied to the parts of the coast occupied by the subjects of either Power since 1789, or hereafter to be occupied; in the 6th, to the parts of the coast which the subjects of both Powers were forbidden to occupy. There is nothing in the context to warrant the supposition that the usual meaning was not to be attached to the word "settlement" on this occasion, namely, a _territorial settlement_, such as is contemplated in the 3rd article of the Treaty of 1783: "and that the American fishermen shall have liberty to dry and cure fish in any of the _unsettled_ bays, harbours, and creeks of Nova Scotia, Magdalen Islands, so long as the same shall remain unsettled: but so soon as the same, or either of them, shall be _settled_, it shall not be lawful for the said fishermen to dry or cure fish at such _settlement_ without a previous agreement with _the inhabitants, proprietors, or possessors of the ground_."

In the same manner, during the negotiations of 1818, _the settlement at the mouth of the Columbia River_ was the term applied by Mr. Rush to Astoria. During the discussions between Spain and the United States prior to the Florida Treaty, the _settlement_ in the Bay of St. Bernard, is the appellation given to the French colony of La Salle; and in Crozat's grant the word _etabliss.e.m.e.ns_ is similarly employed. That "settlement" is not the received expression in the language of diplomatists for temporary trading stations, may be inferred from a single instance in the Treaty of 1794, by the second article of which it was provided,--"the United States, in the mean time, at their discretion extending their _settlements_ [leurs etabliss.e.m.e.ns] to any post within the said boundary line, except within the precincts or _jurisdiction_ of any of the said posts. All _settlers_ and _traders_ within the said posts [tous les colons et commercans etablis dans l'enceinte et la jurisdiction des dites postes] shall continue to enjoy unmolested all their property of every kind, and shall be protected therein."

One instance more will suffice. Treaties must be construed in accordance with the received and ordinary meaning of the language, unless otherwise specified, especially when it is sought to attach an unusual sense to any particular term, which sense is ordinarily expressed by some other well-known term. Thus, the 11th article of the Treaty of Paris serves to show, that a station exclusively for the purposes of trade with the natives is not termed a settlement, or _etabliss.e.m.e.nt_, but a factory, or _comptoir_. "In the East Indies Great Britain shall restore to France, in the conditions they are now in, the different _factories_ [les differens comptoirs] which that crown possessed, as well on the coast of Coromandel and Orissa as on that of Malabar, as also Bengal, at the beginning of the year 1740." [Jenkinson's Collection of Treaties, vol. ii., p. 185; Martens' Traites, i., p. 112.]