Proceedings in Congress after the Convention of 1818.—Russian Ukase of 1821.—Russian Title 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 Title 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 Title 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.
Proceedings in Congress after the Convention of 1818.—Russian Ukase of 1821.—Russian Title 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 Title 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 Title 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 September1821, by which an exclusive title was asserted 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 shore, 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 title 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 embarrassed 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 assumed, 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 UnitedStates 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 assert 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 latitude 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 latitude; 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 surpassing 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 latitude.” 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 lowas 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 title 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 asserted,” writes Mr. Rush, “thata nation discovering a country, by entering the mouth of its principal 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 principal 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 titles, 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 theexclusive 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 latitude, 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 title 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 Powersof 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 latitude 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 latitude, 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 title, 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 orusage, 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 circumstance 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 latitudes 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 thediscoveryby 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 ofprior 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 UnitedStates,” 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 anational 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 circumscribing 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 thediscoveryorsettlementof 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 passed 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 assuming 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 title derived by the United States from Spain, Mr. Rush contended that, “if Great Britain had put forth no claims on the north-west coast, foundedon prior occupation, still less could she ever have established any, atany period, foundedon prior discovery. The superior title 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 asserted, 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 latitude. The very first article of the Nootka Sound Convention attested, I said, the superiority of her title; 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 (passing 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 latitude 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 latitude 45°; that of De Fuca in 1592, who explored it in latitude 48°,giving the name, whichthey still bore, to the straits in that latitude, 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 title to the United States to the whole of that coast, from latitude 42° to as far north as latitude 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 title.”
The British plenipotentiaries, in their reply, repeated their animated denials of the title 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 title 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 shores 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 asserted 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 latitude, 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 assert that he got as far north as 48°, yet Hakluyt, who wrote about the time that Drake flourished, informs us that he got no higherthan 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 latitude 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 title 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-asserting 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 title 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 title in the United States, thus transcendant, needed confirmation, it might be sought in their now uniting to it the title 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 boundaryline between the territories respectively claimed by the two Powers, westward of the Rocky Mountains, should be drawn due west, along the 49th parallel of latitude, 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.
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 Association dissolved at Astoria before the Arrival of H. B. M.’s Sloop of War the Racoon.—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.—Title 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 Titles.—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 Title 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.”
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 Association dissolved at Astoria before the Arrival of H. B. M.’s Sloop of War the Racoon.—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.—Title 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 Titles.—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 Title 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 assertion 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 dominionover 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 thesame 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 latitude, 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 passed 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′, whilstCommander 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 title 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 asserted 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 asserts 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 association 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 assured by him, “that in case of a war between the two nations they would be respected asBritish subjects andmerchants.” Such a body of traders could hardly be considered to invest their settlement at Astoria with any distinctnationalcharacter, 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 theempireor sovereignty of it, at the same time with thedomain.
It must be kept in mind that the Pacific Fur Company was a purely voluntary association, 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 association,” according to Mr. Washington Irving, “if successful, was to continue for twenty years, but theparties had full power to abandon and dissolve itwithin the first five years, should it be found unprofitable.” And thus, we find, that the association 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 Racoon 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 Cox, 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 characterof 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 analogous 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 passage 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 navigatorsfurnished 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,—thestateought 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, entitles it to all the privileges which the nation has secured to her citizensby 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 tore-establishAstoria, provided you hadthe protection of the American flag: for which purposea lieutenant’s commandwould 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 asserted,” writes Mr. Rush, “that a nation discovering a country by entering the mouth of its principal 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 principal 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 entitled to the exclusive use of the river; and the exclusive use of the river entitles 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 shore, all might use. In an analogous manner, in reference to great rivers flowing into the ocean, a common use is presumed, unless an exclusive title 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, Traités, 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 participate 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 oncereasonableandmoderate; 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 assent: 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 nationtakes 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 title to the river is made subordinate to thetitle 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, allalong the sea coastto the southward unto the most southern stream of the Alatamaha river, and westwardfrom the heads of the said rivers respectively in direct lines to the South Seas, and all that space, circuit, and precinct of land lyingwithin 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 entitled 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 assuming 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 title 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 entitling 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 shallfind 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 latitude, because the north branch of the river rises in that latitude. 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 entitled 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 titles. 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 assume 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, assuming for a moment that it is a recognised principle of international law, that a “nation discovering a country by entering the mouth of its principal 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 principal river and its tributary streams,” the United States would only be entitled 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 theColumbia, 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 latitude.”
Such were the grounds on which the original title of the United States was set up; her derivative title on this occasion was founded upon the cession of the title of Spain by the Treaty of Washington. In support of the Spanish title, 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 asserting that Russian navigators had pushed their discoveries as far south as the forty-ninth degree of north latitude 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 latitude 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 otherreason 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 title of Spain up to 60° north latitude, 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 asserted in 1790, that her territories extended as far as the 60th degree of north latitude; 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 beendispossessedabout 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 (passing 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 aclandestinediscovery should be set up to supersede apatentdiscovery, 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 title is meant to be established for the first time, some act of possession is usually done, andproclaimed as a notification of the fact. In a similar manner, in the case of derivative title, it is a recognised rule of international law, that sovereignty does not pass 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 ofcession are drawn up, and adequate powers areformallygiven 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 remainexecutoryonly, and not executed till carried into effect; and until that is done bysome public act, the former sovereignty must remain. In illustration 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 passed 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, assigned 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 containedrecognitions 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; oftrading with the natives of the north-west coast of America; andof 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, orof making settlementsthere.” There is no restriction here as to the object of the settlement: on the contrary,the making settlementsis specified as distinctfrom 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 asserted 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 endeavouredto make settlementson the northern parts of the Southern Ocean, though she had been aware of trespasses 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 passport from the Governor; and though he [the captain] came manifestly with a view to trade there, yet the Spanish Admiral, when he saw hisinstructions, 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 camenot only to trade, but brought every thing with him properto form a settlement thereand 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 evidentlyfor 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 toa 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 placeyour colonyin 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 concludedto erect a fort and settle a colonyin Nootka Sound; from what authority we cannot say. However, on the arrival of the Argonaut, weheard Captain Colnett inform the Spanish commodore he had come for that purpose, and to hoistthe 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, andsettle a colonyfor 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 theSpaniards’ 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 factoryfor 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 infringementof territorial rightsled 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 orvanity 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 ambassador at the Court of London, on February 10, 1790, “that the parties who had planned these expeditions should be punished, in order to deter othersfrom making settlements on territories occupiedand 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 suchestablishmentsas they should form with the consent of the natives of the country,not previously occupiedby any of the European nations. The word “establishment” here made use of is synonymous with “settlement,”établissementbeing the expression in the French version of the treaty whereversettlementoccurs 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, aterritorial 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 theunsettledbays, 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 besettled, it shall not be lawful for the said fishermen to dry or cure fish at suchsettlementwithout a previous agreement withthe inhabitants, proprietors, or possessors of the ground.”
In the same manner, during the negotiations of 1818,the settlement at the mouth of the Columbia Riverwas the term applied by Mr. Rush to Astoria. During the discussionsbetween Spain and the United States prior to the Florida Treaty, thesettlementin the Bay of St. Bernard, is the appellation given to the French colony of La Salle; and in Crozat’s grant the wordétablissemensis 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 theirsettlements[leurs établissemens] to any post within the said boundary line, except within the precincts orjurisdictionof any of the said posts. Allsettlersandtraderswithin the said posts [tous les colons et commerçans établis 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, orétablissement, but a factory, orcomptoir. “In the East Indies Great Britain shall restore to France, in the conditions they are now in, the differentfactories[les différens 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’ Traités, i., p. 112.]
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 principalsettlementsof 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 principalsettlementsand the said United States.” In this latter case it is no longer trading posts, but territorial establishments which are spoken of, and the wordsettlementsis distinctively applied to them.