The Oregon Territory Part 12

In remarkable contrast to this we find in the convention of commerce between Great Britain and the United States, signed at London, July 3, 1815, the following words in the third article:--"His Britannic Majesty agrees that the vessels of the United States of America shall be admitted and hospitably received at the princ.i.p.al _settlements_ of the British dominions in the East Indies, viz., Calcutta, Madras, Bombay, and Prince of Wales' Island, and that the citizens of the said United States may freely carry on trade between the said princ.i.p.al _settlements_ and the said United States." In this latter case it is no longer trading posts, but territorial establishments which are spoken of, and the word _settlements_ is distinctively applied to them.

CHAPTER XVI.

NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1826-27.

Revival of Negotiations.--Written Statements of respective Claims.--The United States.--Great Britain.--Rights supposed to be derived from the Acquisition of Louisiana.--Jefferys' French America.--Cession of Canada.--The Illinois Country.--Treaty of Utrecht.--Treaty of Paris.--French Maps.--Charters.--Declaration of Court of France in 1761, as to respective Limits of Canada and Louisiana.--Contiguity of Territory.--Hudson's Bay Territories.--Atlantic Colonies.--Cession by France of the left Bank of the Mississippi.--Mr. Gallatin's Doctrine of Contiguity.--a.s.sumptions not admissible.--Claim to an exclusive t.i.tle by Contiguity.--Argument from Numbers.--Derivative t.i.tle from Spain.--Meaning of the Word "Settlement" in the Treaty of the Escurial.--Mr. Gallatin's Doctrine respecting "Factories."--Intermixed Settlements not incompatible with distinct Jurisdiction.--The Convention contained a mutual Recognition of Rights.--General Law of Nations may be appealed to as supplementary to the Treaty.--Priority of Settlement.--Vattel.--Territory in use never granted for the purpose of making Settlements.--Treaty of Paris.--Usufructuary Right.--Settlements not to be disturbed.--Territory in chief not reserved.--Convention of 1827.

The subject of a definitive arrangement of the respective claims of the two nations to the country west of the Rocky Mountains, the sovereignty over which had been placed in abeyance for ten years by the Convention of 1818, was once more revived in 1826, on the arrival in London of Mr.

Gallatin, with full powers from the United States to resume the discussion. The British commissioners renewed their former proposal of a boundary line drawn along the 49th parallel from the Rocky Mountains to M'Gillivray's River, the north-eastern branch of the Columbia, and thence along that river to the Pacific Ocean, and subsequently "tendered in the spirit of accommodation" the addition of a detached territory on the north side of the river, extending from Bulfinch's (Gray's or Whidbey's) Harbour on the Pacific, to Hood's Ca.n.a.l on the Straits of Fuca. Mr. Gallatin, on his part, confined himself to the previous offer of the 49th parallel to the Pacific, with the free navigation to the sea of such branches of the Columbia as the line should cross at points from which they are navigable by boats. The claims of the two nations were on this occasion formally set forth in written statements, and annexed to the protocol of the sixth and seventh conferences respectively. They were published with President Adams's Message to Congress of December 12, 1827, and are both inserted in full in the _second_ edition of Mr. Greenhow's History, lately published.

The British statement alone was published in his first edition, but the United States' counter-statement, a very able paper, which was a great desideratum, has been annexed to the second edition.

It is much to be regretted that so interesting a collection of state papers as the doc.u.ments of Congress contain, are almost inaccessible to the European reader, since a complete collection is not to be met with in any of our great public libraries in England or France--those of the British Museum, for example, and of the Chamber of Deputies, having been in vain consulted for this purpose. It was intended to annex both the written statements on this occasion in an Appendix to the present work, but the recent publication of the negotiations of 1844-5, has rendered this step unnecessary.

On this occasion Mr. Gallatin grounded the claims of the United States--first of all upon their acquisition of Louisiana, as const.i.tuting as strong a claim to the westwardly extension of that province over the _contiguous_ vacant territory, and to the occupation and sovereignty of the country as far as the Pacific Ocean; and, secondly, on the several discoveries of the Spanish and American navigators. These distinct t.i.tles, it was maintained, "Though in different hands, they would conflict with each other, being now united in the same Power, supported each other. The possessors of Louisiana might have contended, on the ground of contiguity, for the adjacent territory on the Pacific Ocean, with the discoveries of the coast and of its main rivers. The several discoveries of the Spanish and American navigators might separately have been considered as so many _steps in the progress of discovery, and giving only imperfect claims to each party_. All these various claims, from whatever consideration derived, are now brought united against the pretensions of any other nation."

"These united claims," it was urged, "established a stronger t.i.tle to the country above described, and along the coast as far north, at least, as the 49th parallel of lat.i.tude, than has ever, at any former time, been a.s.serted by any nation to vacant territory."

The British commissioners, Messrs. Huskisson and Addington, on their part, maintained that the t.i.tles of the United States, if attempted to be combined, destroyed each other--if urged singly, were imperfect t.i.tles.

Great Britain claimed _no exclusive sovereignty_ over any portion of the territory. As for any exclusive Spanish t.i.tle, that was definitively set at rest by the Convention of Nootka, and the United States necessarily succeeded to the limitations by which Spain herself was bound. In respect to the French t.i.tle, Louisiana never extended across the Rocky Mountains westward, unless some tributary of the Mississippi crossed them from east to west; but a.s.suming that it did even extend to the Pacific, it belonged to Spain equally with the Californias, in 1790, when she signed the Convention of Nootka; and also subsequently, in 1792, when Gray first entered the mouth of the Columbia. If then Louisiana embraced the country west of the Rocky Mountains, to the south of 49, it must have embraced the Columbia itself, and consequently Gray's discovery must have been made in a country avowedly already appropriated to Spain; and if so appropriated, necessarily included, with all other Spanish possessions and claims in that quarter, in the stipulations of the Nootka Convention.

As the rights supposed to be derived from the acquisition of Louisiana were on this occasion for the first time set up by the United States, and formed a leading topic in Mr. Gallatin's counter-statement, their novelty, as well as the important consequences attempted to be deduced from them, ent.i.tled them to precedence in the order of inquiry over the derivative Spanish t.i.tle, and the original t.i.tle of the United States, the more so, as the two latter have been already briefly examined. It would seem that Mr. Gallatin did not attempt to extend the boundaries of the colony of Louisiana, beyond the valley of the Mississippi and its tributaries.

Crozat's grant would of itself be evidence against any extension of the French t.i.tle in this respect. But he contended, that "by referring to the most authentic French maps, New France was made to extend over the territory drained by rivers entering into the South Seas. The claim to a westwardly extension to those seas was thus early a.s.serted, as part, not of Louisiana, but of New France. The king had reserved to himself, in Crozat's grant, the right of enlarging the government of Louisiana. This was done by an ordinance dated in the year 1717, which annexed the Illinois to it, and from that time, the province extended as far as the most northern limit of the French possessions in North America, and thereby west of Canada or New France. The settlement of that northern limit still further strengthens the claim of the United States to the territory west of the Rocky Mountains."

The meaning of this pa.s.sage is rather obscure, but it seems to imply, that by the annexation of the Illinois the province of Louisiana was extended to the most northern limit of the French possessions in North America, and _thereby_ cut off the western portion of Canada or New France, and so consequently extended itself to the South Seas. If this be the correct view of the argument, then it may be confidently a.s.serted, that neither of these positions can be established. In the first place, Crozat's grant, on which the United States expressly and formally relied in the negotiations with Spain, defined the country of Louisiana to be bounded on the west by New Mexico, on the east by Carolina, and northwards to comprise the countries along the River St. Louis (Mississippi) from the sea-sh.o.r.e to the Illinois, together with the River St. Philip, formerly called the Missouries River, and the St. Jerome, formerly called Wabash, with all the countries, territories, lakes in the land, and the rivers emptying directly or indirectly into _that part_ of the river St. Louis. The words of the grant, if strictly interpreted, limit the province on _both sides_ of the Mississippi _to that part from the sea-sh.o.r.e to the Illinois_, as both the Missouri and the Wabash (Ohio) unite with the Mississippi below the Illinois. But it seems to have been practically held, that Louisiana extended along the western bank of the Mississippi to its source. Thus we find in Jefferys' History of the French Dominions in America, published in 1760, Louisiana thus described:--"The province of Louisiana, on the southern part of New France, extends, according to the French geographers, from the Gulf of Mexico in about 29 to near 45 north lat. on the western side, (the sources of the Mississippi being laid down in Jefferys' map in about 45,) and to near 39 on the eastern, and from 86 to near 100 W.

longitude from London. It is bounded on the north by Canada, on the east by the British colonies of New York, Pennsylvania, Maryland, Virginia, North and South Carolina, Georgia, and by the peninsula of Florida; on the south by the Gulf of Mexico; and lastly, on the west by New Mexico." This description evidently omits the Illinois, but the annexation of the Illinois in 1717 did not give to the province of Louisiana the indefinite extent northward which Mr. Gallatin suggests, for the Marquis de Vaudreuil, in ceding the province of Canada to Sir J. Amherst, in 1760, according to his own letter, (Annual Register, 1761, p. 168,) expressly described Louisiana as extending on the one side to the carrying-place of the Miamis, and on the other to the head of the river of the Illinois. The Illinois country itself was a limited district, watered by a river of that name, which had been so called from an Indian nation settled on its banks.

This tribe or nation was said to have migrated from the west, along the banks of the Moingona, (the Riviere des Moines,) down to its junction with the Mississippi: it had then established itself a little lower down on the eastern side of the Mississippi, in an exceedingly fertile valley, watered by a tributary of that river, to which it gave its own name of Illinois.

The French settlement was in this district, according to Jefferys: its commodious situation enabled it to keep up the communication between Canada and Louisiana, and the fertility of the soil rendered it the granary of Louisiana. It may be perfectly true that Illinois was the most northern limit of the French _possessions_ in North America, if by the term _possessions_ is meant the territory in which they had made settlements; but if the term is intended to include the territory in which they claimed a right to found settlements, the statement would not be correct.

By the Treaty of Utrecht, the British had precluded themselves from pa.s.sing over the limits of the territory of the Bay of Hudson, and all the country south of those limits would be considered amongst "the places appertaining to the French," in other words, would be part of New France.

But the southern boundary of the Hudson's Bay territory would be much to the northward of the Illinois country; the intermediate district, it is true, was peopled with various Indian tribes, but the French, as against Great Britain, by the Treaty of Utrecht, had an exclusive t.i.tle to the country. By the Treaty of Paris in 1763, that t.i.tle pa.s.sed from France to Great Britain, and in pursuance of the rights so acquired by the crown of England, a proclamation was issued, reserving to the Indians, as hunting grounds, all the territories not included within the government of Quebec, or the limits of the territory granted to the Hudson's Bay Company, and enjoining all persons whatever, who should have seated themselves in them, to remove forthwith from such settlements. (Annual Register, 1763, p.

212.) It would thus appear, if New France ever extended across the continent of America to the Pacific Ocean, the portion of it north of the sources of the Mississippi, and of the Illinois River, pa.s.sed into the hands of Great Britain, on the ratification of the Treaty of Paris. The claim, however, to the westwardly extension of New France to the Pacific Ocean, requires some better evidence than the maps of the French Geographers. A map can furnish no proof of territorial t.i.tle: it may ill.u.s.trate a claim, but it cannot prove it. The proof must be derived from facts, which the law of nations recognises as founding a t.i.tle to territory. Maps, as such, that is, when they have not had a special character attached to them by treaties, merely represent the _opinions of the geographers_ who have constructed them, which opinions are frequently founded on fict.i.tious or erroneous statements: e. g., the map of the discoveries in North America by Ph. Buache and J. N. de Lisle, in 1750, in which portions of the west coast of America were delineated in accordance with De Fonte's story, (supra, Ch. IV.,) and the maps of north-west America at the end of the seventeenth and beginning of the eighteenth centuries, which represent California as lately ascertained to be an island. An examination of the collection in the King's Library at the British Museum, will remove all scepticism on this head. Such doc.u.ments are ent.i.tled, of themselves, to far less consideration from foreign Powers, than the charters of sovereigns. These, indeed, may be binding on the subjects of the sovereigns by their own inherent authority, but against other nations, they must be supported expressly, on the face of them at least by some external authority, which the law of nations acknowledges. Thus, we find generally the t.i.tle of discovery recited in the preamble of charters; it is, however, competent for other nations to dispute this t.i.tle, or to dispute the extent to which the grant goes. The charter of Carolina and Georgia, elsewhere recited, will furnish a case in point. In these the grant extends westward to the South Seas, but this would convey no t.i.tle to the settlers against the French, who barred the way to the South Seas by their settlements in Louisiana, and who would dispute the a.s.serted claim, so that the charters would be inoperative in their full extent.

But when Mr. Gallatin stated, that from the ordonnance of 1717 the province of Louisiana extended as far as the most northern limit of the French possessions in North America, and thereby west of Canada or New France, he has probably overlooked the words of the ultimatum of the Court of France, of the 5th August 1761, remitted by the Duc de Choiseul to Mr.

Stanley, the British plenipotentiary, in the course of the negotiations in that year after the surrender of Canada:--"The King of France has, in no part of his memorial of propositions, affirmed that _all which did not belong to Canada appertained to Louisiana_; it is even difficult to conceive such an a.s.sertion could be advanced. France, on the contrary, demanded that the intermediate nations between Canada and Louisiana, as also between Virginia and Louisiana, shall be considered as neutral nations, independent of the sovereignty of the two crowns, and serve as a barrier between them." (Historical Memorial of the Negotiations, published at Paris by authority, 1761. May be referred to in Jenkinson's Coll. of Treaties, vol. ii.) Mr. Gallatin says elsewhere, in alluding to royal charters:--"In point of fact, the whole country drained by the several rivers emptying into the Atlantic Ocean, the mouths of which were within those charters, has from Hudson's Bay to Florida, and it is believed without exception, been occupied and held by virtue of those charters. Not only has this principle been fully confirmed, but it has been notoriously enforced, much beyond the sources of the rivers on which the settlements were formed. The priority of the French settlements on the rivers flowing westwardly from the Alleghany Mountains into the Mississippi, was altogether disregarded; and the rights of the Atlantic colonies to extend beyond those mountains, as growing out of the _contiguity of territory_, and as a.s.serted in the earliest charters, was effectually and successfully enforced." In reply to these remarks it may be observed, that the limits of the Hudson's Bay territory were settled by the Treaty of Utrecht, in 1713, those of the Atlantic colonies by the Treaty of Paris, 1763, and in the preliminary negotiation no allusion is any where made to rights founded on charters, or to rights of _contiguity_. On the contrary, in regard to the Hudson's Bay territories, the peaceable acquiescence of the Marquis de Frontenac, then Governor of Canada, in the settlement of the Bay of Hudson by the English company, was maintained to be a bar to any claims on the part of the French to question, at a subsequent period, the t.i.tle of which the British crown a.s.serted on the grounds of _discovery_.

Again, in respect to the Atlantic colonies, their right to extend themselves to the banks of the Mississippi was never enforced against the French, "as growing out of the contiguity of territory, and as a.s.serted in the earliest charters." On the contrary, in the negotiations of 1761, it was admitted by Great Britain, that in respect to the course of the Ohio, and the territories in those parts, the pretensions of the two crowns had been _contentious_ before the surrender of Canada, and in respect to the nations on the east bank of the Mississippi, Great Britain confined herself to a.s.serting that they had been always reputed to be under her protection, and proposed to the French King, that "for the advantage of peace, he should consent to leave the intermediate countries under the protection of Great Britain, and particularly the Cherokees, the Creeks, the Chicosaws, the Chactaws, and another nation, situate between the _British settlements and the Mississippi_." The result of these and subsequent negotiations was, that France, by the seventh article of the Treaty of Paris, agreed that the limits of the British and French territories respectively should be fixed by a line drawn along the middle of the Mississippi, from its source to the River Iberville [depuis sa naissance jusqu'a la riviere d'Iberville,] and ceded to Great Britain all that she possessed or was ent.i.tled to possess, on the left bank of the Mississippi, with the exception of New Orleans.

This cession by France of all that she possessed, or was ent.i.tled to possess, on the left bank of the River Mississippi, would convey to Great Britain all her t.i.tle to the Illinois and other districts north of the Illinois country, if she possessed any; but she could only possess any t.i.tle to them as forming part of the dependencies of Canada or New France.

Out of these, indeed, the province of Louisiana had been carved by the grant to Crozat in 1712, and from these the Illinois territory had been detached in 1717, by the charter of Law's Mississippi Company; the remainder, such as it was, had retained its original character of New France or Canada unchanged, as well as its original limits, such as they had been determined to be, either by special commissioners, in pursuance of the provisions of the Treaty of Utrecht, or by an understanding between the crowns of France and Great Britain. If therefore the French had any possessions in America north of the sources of the Mississippi, as Louisiana did not extend further north than those sources, they must have been part of the original province of Canada, and have been ceded to Great Britain with Canada and all her dependencies. The western boundary of Louisiana was never attempted to be extended by the French beyond the limits of Crozat's grant, by which Louisiana was expressly defined to be bounded by New Mexico on the west, and impliedly by the head-waters of the Missouri river.

"The actual possession," Mr. Gallatin maintained, "and populous settlements of the valley of the Mississippi, including Louisiana, and now under one sovereignty, const.i.tute a strong claim to the westwardly extension of that province over the _contiguous_ vacant territory, and to the occupation and sovereignty of the country as far as the Pacific Ocean.

If some trading factories on the sh.o.r.es of Hudson's Bay have been considered by Great Britain as giving an exclusive right of occupancy as far as the Rocky Mountains; if the infant settlements on the more southern Atlantic sh.o.r.es justified a claim thence to the South Seas, and which was actually enforced to the Mississippi, that of the millions already within the reach of those seas cannot consistently be resisted. For it will not be denied that the extent of contiguous territory, to which an actual settlement gives a prior right, must depend, in a considerable degree, on the magnitude and population of that settlement, and on the facility with which the vacant adjoining land may, within a short time, be occupied, settled, and cultivated by such population, as compared with the probability of its being thus occupied and settled from another quarter."

In examining Mr. Gallatin's argument in the above pa.s.sage, it will be seen that he a.s.sumes, as the foundation of it, two suppositions as to the Hudson's Bay factories and the settlements on the Atlantic sh.o.r.es, which are not admissible. Great Britain never considered her right of occupancy up to the Rocky Mountains to rest upon the fact of her having established factories on the sh.o.r.es of the Bay of Hudson, i. e., upon her t.i.tle by mere settlement, but upon her t.i.tle by discovery confirmed by settlements, in which the French nation, her only civilised neighbour, acquiesced, and which they subsequently recognised by treaty: and in regard to the infant settlements on the Atlantic sh.o.r.es, they were planted there either by virtue of discovery, as in the case of Virginia, or else upon the plea of the territory "not yet being cultivated or planted, and only inhabited by some barbarous people," as in the case of the Carolinas, which, though occupied successively for a time by Spanish and by French settlers, had been abandoned by all European nations from the year 1567 till 1663, when Charles II. granted letters patent to the Earl of Clarendon and seven others, a.s.serting a t.i.tle to it by virtue of the discoveries of Sebastian Cabot, and its abandonment by other Powers. If, therefore, the British crown a.s.serted a right of extending its settlements beyond the heads of the rivers emptying themselves into the Atlantic to the South Seas, it was not by virtue of its infant settlements, but by the same t.i.tle, whatever it might be, which, according to the practice of nations, would authorise it to make those settlements, since the claim was a.s.serted in the very charters which empowered the settlement to be made. But the settlement was limited to lands "not yet cultivated or planted," in other words, _to vacant territory_. Was the claim then actually enforced by the British to the Mississippi? The history of the Treaty of Paris furnishes a negative answer to the question. The claim, indeed, which Mr. Gallatin attempts to set up, is to an _exclusive t.i.tle by contiguity_. But such a t.i.tle can only be founded on necessity, when the law of self-preservation is paramount to all other considerations. Convenience alone will not establish an absolute t.i.tle, though it may found a conditional t.i.tle, subject to the acquiescence of other States: but the reason which Mr.

Gallatin alleged in support of the t.i.tle by contiguity; namely, the facility with which the vacant territory would be occupied by the teeming population of the United States, is but a disguised appeal to the principle of the _vis major_, and strikes at the root of the fundamental axiom of international law, that all nations are upon a footing of perfect equality as to their obligations and rights. "Power or weakness," observes Vattel, "does not in this respect produce any difference. A dwarf is as much a man as a giant: a small republic is no less a sovereign state than the most powerful kingdom;" so that every argument which rests on the grounds that the millions already within reach of the Pacific Ocean, ent.i.tle the United States by their numbers to the occupation and sovereignty of the country, to the exclusion of Great Britain, is out of place where questions of greater right, and not of greater interest, are under discussion. It should however not be forgotten, in discussing the probability of the Oregon Territory being occupied from any other quarter than the United States, that British subjects are restricted by the charter of the Hudson's Bay Company from settling there, it being declared in that charter, "that no British subjects, other than and except the said Governor and Company, and their successors, and the persons authorised to carry on exclusive trade by them, shall trade with the Indians" within such parts of North America as are "to the northward and to the westward of the lands and territories belonging to the United States of America."

In respect to the derivative t.i.tle from Spain, Mr. Gallatin, in admitting the Convention of the Escurial to be now in force, as being of a commercial nature, and therefore renewed, in common with all the treaties of commerce existing previously to the year 1796, between Spain and Great Britain, by the treaty signed at Madrid on August 28, 1814, (Martens'

Traites, Nouveau Recueil, iv., p. 122,) contended in the first place that the word "settlement" was used in the third and fifth articles of the convention, in the narrower sense which Mr. Rush had endeavoured to attach to it in the negotiations of 1824, namely, as "connected with the commerce to be carried on with the natives;" and, secondly, that if the word "settlement" was employed in its most unlimited sense, still that the provisions of the convention had no connection with an ultimate part.i.tion of the country for the purposes of permanent colonisation. The truth of the last observation, to a certain extent, is self-evident, from the fact of the ultimate part.i.tion of the country being still the subject of discussion; but in respect to the word "settlement," some objections to the attempt to narrow its meaning have been already stated, and may be referred to above, (p. 291-297.) A few further observations, however, may not be superfluous. Mr. Gallatin, in another part of his counter-statement says, "It is also believed, that mere factories, established solely for the purpose of trafficking with the natives, _and without any view to cultivation and permanent settlement_, cannot, of themselves, and unsupported by any other consideration, give any better t.i.tle to dominion and absolute sovereignty, than similar establishments made in a civilised country."

If we admit, for the sake of the argument, that temporary trading stations, erected without any view to cultivation and permanent settlement, cannot of themselves establish a t.i.tle to exclusive dominion and sovereignty, this very fact alone would be conclusive to show, from the provisions of the fifth article, that such trading stations were not intended by the word "settlement" in the Treaty of the Escurial. The settlements there contemplated were only to be made in places not already occupied, and further, "in all places wherever the subjects of either _shall have made settlements_ since the month of April 1789, _or shall hereafter make any_, the subjects of the other shall have free access, and shall carry on _their trade_ without any disturbance or molestation."

Unless the settlements here alluded to would have been considered to give a t.i.tle of exclusive sovereignty by the recognised law of nations to the party which had formed them, if not otherwise specified, this provision would have been not merely uncalled for, but on the well-known principle of "expressio unius est exclusio alterius," would have tended to narrow rather than to enlarge the rights of the other party. The reason, however, of this "special provision" will be obvious, when it is called to mind that both Spain and Great Britain carefully excluded foreign Powers from all trade with their colonies, and that Spain had a.s.serted in the preliminary negotiations a right of "sovereignty, navigation, and exclusive commerce to the continent and islands of the South Sea," and had also maintained, that "although she might not have _establishments or colonies_ planted upon the coasts or in the ports in dispute, it did not follow that such coast or port did not belong to her." Unless therefore some such provision had been introduced into the treaty, the subsequent settlements on the north-west coast would have been closed against all foreign traders, in conformity to the general laws of both countries.

But if Mr. Gallatin is justified in advancing, as a principle of international law, that "mere factories, established solely for the purpose of trafficking with the natives, and without any view to cultivation and permanent settlement," such as he alleges the trading posts of the North-west Company to be, cannot of themselves give a good t.i.tle to dominion and absolute sovereignty, he cuts away from under the United States the ground upon which they had set up their original t.i.tle to exclusive sovereignty. For the factory of the Pacific Fur Company at Astoria, on the south bank of the Columbia, would be, according to this view, quite as inoperative for the purpose of const.i.tuting a t.i.tle by settlement in favour of the United States as that of the Hudson's Bay Company at Fort Vancouver, on the northern Bank, would be ineffectual for a similar purpose in favour of Great Britain; and, _a fortiori_, the pa.s.sing visit of a merchant ship, such as the Columbia, despatched solely _for the purpose of trafficking with the natives_, and not with the object of making discoveries, or with any authority to take possession of territory for purposes of permanent settlement, could never be held ent.i.tled to the consideration which the United States claim to have attached to it.

Mr. Gallatin observed that "the stipulations of the Nootka convention permitted promiscuous and intermixed settlements everywhere, and over the whole face of the country, to the subjects of both parties, and even declared every such settlement, made by either party, _in a degree common to the other_. Such a state of things is clearly incompatible with distinct jurisdiction and sovereignty. The convention therefore could have had no such object in view as to fix the relations of the contracting parties in that respect." If, however, it can be shown that such a state of things _is not incompatible with distinct jurisdiction_, the argument will fall to the ground.

It appears then to have been decided in the United States Courts, that, "although the territorial line of a nation, _for the purposes of absolute jurisdiction_, may not extend beyond the middle of the stream, yet the right to the use of the whole river or bay _for the purposes of trade_, navigation, and pa.s.sage, may be common to both nations." (The Fame, 3 Mason 147, C. C. Maine, 1822, cited in Elliott's American Diplomatic Code, vol. ii., p. 345.)

Here then we have the principle recognised of _use for the purposes of trade being in a degree common_ to both nations, yet such a state of things being _not incompatible with distinct jurisdiction_ and sovereignty.

Still less would the fact of the convention permitting promiscuous and intermixed settlements to be made everywhere by the subjects of both parties be incompatible with distinct jurisdiction; for, as Vattel observes (l. ii., -- 98,) "it may happen that a nation is contented with possessing only certain places, or appropriating to itself certain rights in a country that has not an owner, without being solicitous to take possession of the whole country. In this case, another nation may take possession of what the first has neglected; but this cannot be done without allowing all the rights acquired by the first to subsist in their full and absolute independence. In such cases, it is proper that regulations should be made by treaty, and this precaution is seldom neglected among civilised nations."

Mr. Gallatin further continues: "On that subject (jurisdiction and sovereignty) it (the convention) established or changed nothing, but left the parties where it found them, and in possession of all such rights, whether derived from discovery, or from any other consideration, as belonged to each, to be urged by each, whenever the question of permanent and separate possession and sovereignty came to be discussed between them."

It may be perfectly correct to say that the convention "left the parties where it found them, and in possession of all such rights, whether derived from discovery or from any other consideration, as belonged to each;" for the very object of the third article was not the concession of favours, but the recognition of mutual rights. On the other hand, that it left all question of rights open, to be urged by each at any future time, as if there had been no declaration or acknowledgment on the subject, seems not merely to be at variance with the substance of the third article, but to be utterly irreconcilable with the preamble of the convention, which contemplates an amicable arrangement of the differences between the two Crowns, "which, setting aside all retrospective discussion of the rights and pretensions of the two parties, should fix their respective situation for the future on a basis conformable to their true interests, as well as to the mutual desire with which their said Majesties are animated, of establishing with each other, in every thing and in all places, the most perfect friendship, harmony, and good correspondence."

If, indeed, Mr. Gallatin means that whenever the parties should find it desirable to terminate the condition of _occupation in common_, it would be competent for either party to appeal to the general law of nations, subject to the provisions of the treaty, the reason of the thing at once suggests that recourse must be had to some general principles of law, in a case for which the treaty does not provide. But the general law of nations must only be invoked as supplementary to the special law recognised by the convention. By the special law of the treaty, the mutual right of making settlements in places not already occupied was acknowledged; but the rights accruing to either party by virtue of such settlements, when made, would be determined by the general law of nations. The _reciprocal liberty_ of free access and unmolested trade with such settlements was provided for by the fifth article; the treaty, however, was silent as to the relations of the parties in other respects, after they should have made settlements. These relations then would be determined by the general law.

The common right of either party to make settlements in _places not occupied_ was recognised by the convention. Occupation was thus declared to be the test of exclusive t.i.tle, and "territory not occupied," was impliedly "territory without an owner." Priority of settlement would thus give as perfect a t.i.tle under the special law of the convention, as discovery and settlement under the general law of nations. If this view be correct, then Vattel supplies the rule of law which would determine the mutual relations attendant on such settlements. "If at the same time two or more nations discover and _take possession_ of an island, or _any other desert land without an owner_, they ought to agree between themselves, and make an equitable part.i.tion; but, if they cannot agree, each will have the right of empire and the domain in the parts in which _they first settled_." (l. ii., -- 95.)

The mutual right of the two parties to settle in places not yet occupied, having thus been acknowledged by the convention, the sovereignty was from the nature of things left in abeyance _pending the establishing of such settlements_, but there was no provision in the treaty to suspend the operation of the general law of nations, in respect to the territorial rights consequent on such settlements. To negative the operation of the general law, it would be necessary to show that the _dominium utile_, as distinct from the sovereignty, was all that accrued by such settlements.

But in cases in which the territory in use, (_dominium utile_) as distinct from the territory in chief (_dominium eminens_,) has been granted by treaty, such a concession has never been said to be granted "for the purpose of making settlements," and it may be observed that in such cases, express reference is made to the party who retains the territory in chief.

Thus in the 17th article of the Treaty of Paris, by which Spain granted to Great Britain a _usufructuary right_ in the territory of the Bay of Honduras, it was provided:--

"That his Britannic Majesty shall cause to be demolished the fortifications which his subjects shall have erected in the Bay of Honduras, and in _other places of the territory of Spain_ in that part of the world, four months after the ratification of the present treaty.

"And his Catholic Majesty shall not permit his Britannic Majesty's subjects or their workmen to be disturbed or molested under any pretence whatever in _the said places_, in their occupation of cutting, loading, and carrying away logwood; and for this purpose they may build without hindrance, and _occupy without interruption_, the houses which are necessary for themselves or families.

"And his Catholic Majesty a.s.sures to them by these articles the full enjoyment of those advantages and powers on the _Spanish coasts and territories_, as above stipulated."

In this case it will be seen that his Catholic Majesty granted to Great Britain the usufructuary right, or, according to the language of the Civil Law, Jus utendi, fruendi, salva rerum substantia, of the peculiar produce of the soil of the Bay of Honduras, reserving to himself the property of the soil, or the territory in chief.

But on looking once more at the words of the 3d article, it was agreed between the two contracting parties, that "their respective subjects shall not be disturbed or molested either in navigating or carrying on their fisheries in the Pacific Ocean or in 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." Now the only pretext for such disturbance or molestation would be the claim of territorial right or sovereignty: and that pretext being formally relinquished by the stipulation not to disturb, the claim of territorial right, as founded on considerations anterior to the treaty, was mutually abandoned by either party. Again, the _subjects_ of either party were declared ent.i.tled to make _settlements_ in places not already occupied. If now there was a reservation of territorial right in chief by one party, then the families settling there, which is in effect colonising, (for the cultivation of the soil must be allowed them,) could not be the subjects of the other party, if they settled and became domiciled there; yet they are acknowledged to retain their character. Now, such as the subject is, such is the jurisdiction. If, for instance, the absolute and sole territory of the north-west coast of America, exclusive of any other Power, was possessed and retained by Spain, then the jurisdiction over all persons settling there belonged to Spain: the residents in that territory were the subjects of Spain _pro hac vice_, wheresoever they were born, agreeably to the principle admitted all over Europe, that every man is the subject of the jurisdiction and territory in which he is domiciled. But British subjects settling in the places not already occupied on the north-west coast of America could not thereby be divested of the character of their original domicile, for it was only in such character that they were ent.i.tled not to be disturbed or molested in their settlements,--it was only under the authority and protection of a British sovereign that they were ent.i.tled to set foot upon the territory.

Other considerations will readily suggest themselves, but it is unnecessary to pursue the subject further.

These negotiations were brought to a close by the signature of the Convention of 1827, by which the provisions of the 3d article of the Convention of 1818 were further indefinitely extended, it being competent however for either party to abrogate the agreement, on giving twelve months' notice to the other party.

CHAPTER XVII.

NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1844-5.