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.—Assumptions not admissible.—Claim to an exclusive Title by Contiguity.—Argument from Numbers.—Derivative Title 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 Canal 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 arenavigable 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 thesecondedition 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 documents 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 constituting as strong a claim to the westwardly extension of that province over thecontiguousvacant 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 titles, 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 manysteps 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 title to the country above described, and along the coast as far north, at least, as the 49th parallel of latitude, than has ever, at any former time, been asserted by any nation to vacant territory.”

The British commissioners, Messrs. Huskisson and Addington, on their part, maintained that the titles of the United States, if attempted to be combined, destroyed each other—if urged singly, were imperfect titles. Great Britain claimedno exclusive sovereigntyover any portion of the territory. As for any exclusive Spanish title, 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 title, Louisiana never extended across the Rocky Mountains westward, unless some tributary of the Mississippi crossed them from east to west; but assuming 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, entitled them to precedence in the order of inquiry over the derivative Spanish title, and the original title 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 title 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 asserted, 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 provinceextended 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 passage 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, andtherebycut 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 asserted, 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-shore 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 intothat partof the river St. Louis. The words of the grant, if strictly interpreted, limit the province onboth sidesof the Mississippito that part from the sea-shore 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 theprovince 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 Rivière 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 Frenchpossessionsin North America, if by the termpossessionsis 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 passing 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 title to the country. By the Treaty of Paris in 1763, that title passed 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, passed 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 title: it may illustrate a claim, but it cannot prove it. The proof must be derived from facts, which the law of nations recognises as founding a title to territory. Maps, as such, that is, when they have not had a special character attached to them by treaties, merely represent theopinions of the geographerswho have constructed them, which opinions are frequently founded on fictitious 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 documents are entitled, 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 title of discovery recited in the preamble of charters; it is, however, competent for other nations to dispute this title, 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 title to the settlers against the French, who barred the way to the South Seas by their settlements in Louisiana, and who would dispute the asserted 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 thatall which did not belong to Canada appertained to Louisiana; it is even difficult to conceive such an assertion 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 thecontiguity of territory, and as asserted 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 ofcontiguity. 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 title of which the British crown asserted on the grounds ofdiscovery. Again, in respect to the Atlantic colonies, their right to extend themselves to the banks ofthe Mississippi was never enforced against the French, “as growing out of the contiguity of territory, and as asserted 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 beencontentiousbefore the surrender of Canada, and in respect to the nations on the east bank of the Mississippi, Great Britain confined herself to asserting 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 theBritish 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’à la rivière d’Iberville,] and ceded to Great Britain all that she possessed or was entitled 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 entitled to possess, on the left bank of the River Mississippi, would convey to Great Britain all her title to the Illinois and other districts north of the Illinois country, if she possessed any; but she could only possess any title 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. Thewestern 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, constitute a strong claim to the westwardly extension of that province over thecontiguousvacant territory, and to the occupation and sovereignty of the country as far as the Pacific Ocean. If some trading factories on the shores 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 shores 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 passage, it will be seen that he assumes, as the foundation of it, two suppositions as to the Hudson’s Bay factories and the settlements on the Atlantic shores, 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 shores of the Bay of Hudson, i. e., upon her title by mere settlement, but upon her title 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 shores, 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 beenabandoned by all European nations from the year 1567 till 1663, when Charles II. granted letters patent to the Earl of Clarendon and seven others, asserting a title to it by virtue of the discoveries of Sebastian Cabot, and its abandonment by other Powers. If, therefore, the British crown asserted 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 title, whatever it might be, which, according to the practice of nations, would authorise it to make those settlements, since the claim was asserted 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 anexclusive title by contiguity. But such a title 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 title, though it may found a conditional title, subject to the acquiescence of other States: but the reason which Mr. Gallatin alleged in support of the title 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 thevis 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, entitle 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 inthat 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 title 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’ Traités, 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 partition 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 partition 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 title 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 title 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. Thesettlements there contemplated were only to be made in places not already occupied, and further, “in all places wherever the subjects of eithershall have made settlementssince the month of April 1789,or shall hereafter make any, the subjects of the other shall have free access, and shall carry ontheir tradewithout any disturbance or molestation.” Unless the settlements here alluded to would have been considered to give a title 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 asserted 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 haveestablishments or coloniesplanted 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 title to dominion and absolute sovereignty, he cuts away from under the United States the ground upon which they had set up their original title 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 constituting a title 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,à fortiori, the passing visit of a merchant ship, such as the Columbia, despatched solelyfor 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 entitled 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 thingsis 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 bayfor the purposes of trade, navigation, and passage, 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 ofuse for the purposes of trade being in a degree commonto both nations, yet such a state of things beingnot incompatible with distinct jurisdictionand 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 (jurisdictionand 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 ofoccupation 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. Thereciprocal libertyof 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 inplaces not occupiedwas recognised by the convention. Occupation was thus declared to be the test of exclusive title, and “territory not occupied,” was impliedly “territory without an owner.” Priority of settlement would thus give as perfect a title 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 andtake possessionof an island, orany other desert land without an owner, they ought to agree between themselves, and make an equitable partition; but, if they cannot agree, each will have the right of empire and the domain in the parts in whichthey 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 abeyancepending 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 thedominium 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 ausufructuary rightin 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 inother places of the territory of Spainin 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 ormolested under any pretence whatever inthe said places, in their occupation of cutting, loading, and carrying away logwood; and for this purpose they may build without hindrance, andoccupy without interruption, the houses which are necessary for themselves or families.

“And his Catholic Majesty assures to them by these articles the full enjoyment of those advantages and powers on theSpanish 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, salvâ rerum substantiâ, 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, thesubjectsof either party were declared entitled to makesettlementsin 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 Spainpro hâc 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 Britishsubjects 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 entitled not to be disturbed or molested in their settlements,—it was only under the authority and protection of a British sovereign that they were entitled 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.

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

General line of Argument on either Side.—Original Title of the United States.—Nationality of a Merchant Ship.—Mr. Buchanan’s Statement.—Mr. Rush’s View.—The Practice of Nations makes a Distinction between public and private Vessels.—Tribunals of the United States.—Laws of South Carolina.—The Distinction rests on the Comity of Nations.—It is not arbitrary, at the Will of each Nation, nor can it be disturbed.—Dr. Channing on the Character of Merchant Ships.—The taking Possession of a vacant Country for the Purpose of Settlement, is an Act of Sovereignty.—Mr. Gallatin’s Letter to Mr. Astor on the Flag.—Discoveries, as the Groundwork of Territorial Title, technical.—Lord Stowell.—Inchoate Acts of Sovereignty.—Vattel.—Title by Discovery, the Creature of the Comity of Nations.—Gray’s first entering the Mouth of the Columbia does not satisfy the required Conditions.—Heceta’s Discovery, in the popular sense of the Term.—Gray’s the first Exploration of the Mouth.—Expedition of Lewis and Clarke.—Mr. Rush’s Mis-statement in 1824, as to the Sources of the Multnomah, and of Clarke’s River.—Inaccuracy in the Statements of Mr. Calhoun, and of Mr. Buchanan.—The Great Northern Branch of the Columbia not called Clarke’s River by Lewis and Clarke.—Clarke’s River supposed by them to be a Tributary of the Tacoutche-Tesse.—The Tacoutche-Tesse reputed to be the northernmost Branch of the Columbia River till 1812.—Humboldt’s New Spain.—Junction of the Lewis with the Columbia River.—The northernmost Branch of the Columbia first Explored by Thomson.—Lewis and Clarke did not encamp and winter on the north Bank of the Columbia.—Fort Clatsop on the south Bank.—Mr. Packenham’s Counter-statement.—Settlements of the United States.—Mr. Calhoun’s Statement.—Mr. Henry’s trading Fort.—Failure of Captain Smith’s Undertaking.—Mr. Astor’s Adventure.—Astoria on the south Bank of the Columbia.—Rival Station of the North-west Company on the Spokan River.—Astoria not a national Settlement.—No Claim advanced to it by the United States in the Negotiations preceding the Florida Treaty.—Astoria transferred to the North-west Company by Sale.—The United States formally placed in possession of it in 1818.—Mr. Calhoun’s Argument.—Confusion of the Settlement with the Territory.—The Right of Possession.—The Question at issue in 1818.—Mr. Rush did not then assert a perfect Title.—Mr. Buchanan now maintains an exclusive Title.—The derivative Title of Spain.—Inconsistency of the United States Commissioners.—Effect of the Nootka Convention.—Contrast of the Claims of the Two Governments.—Mr. Calhoun’s Admission as to Heceta’s Discovery.—TrueCharacter of the original Title of the United States.—Not an exclusive Title.—Exclusiveness does not admit of Degree.—The Title of Spain imperfect by express Convention.—No Rights granted by the Nootka Convention.—Mr. Buchanan’s Statement.—Examination of the Argument.—Opinions expressed in Parliament in 1790.—Mr. Pitt’s Declaration.

The unexpected publication of the correspondence between Mr. Pakenham, the British Minister, and Messrs. Calhoun and Buchanan, the Secretaries of State at Washington, requires that the more important arguments in their respective statements should be briefly examined, lest the present inquiry should be thought incomplete. No substantially new topic seems to have been advanced during the negotiation, but the treatment of several points in the argument on either side was materially modified. The Commissioners of the United States appear on this occasion to have relied more immediately on the original title of the United States than on the derivative Spanish title which Mr. Rush first set up in 1824, or the derivative French title which Mr. Gallatin brought forward in 1826. The British Minister, on the other hand, rested his position more decidedly on the recognition of the title of Great Britain by the Convention of the Escurial, and less on the general proof of it by discovery and settlement.

In reference, then, to the original title of the United States, Mr. Calhoun, in his letter of September 3, 1844, grounded it on the prior discovery of the mouth of the Columbia River by Captain Gray, on the prior exploration of the river from its head-waters by Lewis and Clarke in 1805-6, on the prior settlement on its banks by American citizens in 1809-10, and by the Pacific Fur Company at Astoria in 1811, which latter establishment was formally restored by the British Government in 1818 to the Government of the United States. Mr. Buchanan, in his letter of July 12, 1845, having briefly recapitulated these alleged facts, says:—“If the discovery of the mouth of a river, followed up within a reasonable time by the first exploration of its main channel and its branches, and appropriated by the first settlements on its banks, do not constitute a title to the territory drained by its waters in the nation performing these acts, then the principles consecrated by the practice of civilised nations ever since the discovery of the New World must have lost their force. Those principles were necessary to procure the peace of the world. Had theynot been enforced in practice, clashing claims to newly-discovered territory, and perpetual strife among the nations, would have been the inevitable result.”

It may be as well to examine into the real character of these alleged facts, before considering how far they warrant the application of the principle of international law, to which Mr. Buchanan seeks to adapt them.

In regard to the discovery of the mouth of the Columbia River by Capt. Gray, in the merchant ship Columbia, under the flag of the U. S., Mr. Calhoun eluded the objection that the Columbia was not apublicbut aprivateship, by simply observing—“Indeed, so conclusive is the evidence in his (Gray’s) favour, that it has been attempted to evade our claim on the novel and wholly untenable ground that his discovery was made, not in a national but private vessel;” and so passed on to other questions. Mr. Buchanan, on the other hand, devotes a few lines to the subject:—“The British plenipotentiary attempts to depreciate the value to the United States of Gray’s discovery, because his ship was atradingand not anationalvessel. As he furnishes no reason for this distinction, the undersigned will confine himself to the remark, that a merchant vessel bears the flag of her country at her masthead, and continues under its jurisdiction and protection, in the same manner as though shehad been commissioned for the express purpose of making discoveries; besides, beyond all doubt, this discovery was made by Gray; and to what nation could the benefit of it belong, unless it be to the United States? Certainly not to Great Britain; and if to Spain, the United States are now her representative.”

Mr. Rush had in a similar manner maintained, “That 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.”

In both these statements it seems to be admitted, that there is a technical distinction in the nationality of a public ship and of a private ship; but it is maintained thatfor the purposes of discoverya merchant ship, under the command of a private individual, is, in the full sense of the word, a national ship. This doctrine, however, finds no countenance in thepractice of nations, which, on the contrary, makes a broad distinction between public and private vessels, in reference to all territorial questions. Thus the comity of nations attaches to the nationality of public vessels coming into the ports of a foreign sovereign different considerations from those with which it regards the nationality of private vessels. To go no further than the tribunals of the United States, “a public vessel of war, of a foreign sovereign, coming into our ports, and demeaning herself in a friendly manner, is exempt from the jurisdiction of this country,” (The schooner Exchange v. M’Faddon, 7 Cranch, 116: Supreme Court of the United States, 1812;) but a private merchant ship has not that courtesy extended to it, if it venturesintra fauces terræ. For instance, if a British merchant vessel should enter the port of Charleston, with free negro sailors on board, the nationality of the flag will not be sufficient to protect them from the operation of the municipal law, which forbids liberty to the negro within the limits of South Carolina; and thus it repeatedly happens, that negroes or persons of colour arriving in the ports of South Carolina, though free subjects of her Britannic Majesty, and engagedon board of a British merchant vesselin the service of the ship, have been by virtue of thelex lociimmediately taken from underthe protection of the British flag, and thrown into prison. In an analogous manner, if a merchant ship from Carolina should enter the port of London, with one or more negro slaves on board, the mercantile flag of the United States would not preclude them from the freedom which the soil of Great Britain imparts to all who come within its precincts.

A public vessel, however, is not entitled,as a matter of right, to any exemption from the jurisdiction of the sovereign whose territory she enters. For the jurisdiction of every nation within its own territory is exclusive and absolute, and all limitations to the full and complete exercise of that jurisdiction must be traced up to the consent of the nation itself. But the comity of nations regards a public vessel as representing the sovereignty of the nation whose flag it bears. If it therefore leaves the high seas, the common territory of all nations, and enters into a friendly port, it is admitted to the privileges which would be extended to the sovereign himself. One sovereign, however, can only be supposed to enter a foreign territory, as his sovereign rights entitle him to no extra-territorial privileges, under an express licence, or in theconfidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. In a similar manner it is under an implied licence that a public ship enters the port of a friendly power, and retains its independent sovereign character, by the courtesy of the nation within the precincts of whose territorial jurisdiction it has placed itself. A private ship, on the contrary, entering the ports of a foreign power, has freedom of access allowed to it upon a tacit condition of a different kind, namely, that it becomes subject to the municipal laws of the country. Hence every nation assigns to its mercantile marine a distinct flag from that which its public ships are authorised to exhibit as thecredentialof their representing the sovereign power of the state.

This distinction between the signification of the respective flags is not arbitrary, at the will of each nation, but is recognised by the law of nations: whilst the mercantile flag imparts to the vessel which bears it a right to participate in the privileges secured by commercial treaties with foreign powers, the public flag of a nation communicates the full character of sovereignty, and is respected accordingly. The commercial flag thus carries with itnationality, the public flagthe national sovereignty.

It is as much out of the power of any particular state to disturb this distinction, and to attach to its mercantile flag, beyond the jurisdiction of its own territory, different considerations from those which the practice of nations has sanctioned, as to increase or diminish the list of offences against the law of nations. No individual nation can say, “That is our mercantile flag: such and such powers shall attach to it, because it is our pleasure that it should be so:” on the contrary, it is the practice of nations which defines those powers, and to that practice we must have recourse, if we would ascertain them.

In illustration of the above views, the following extract from Dr. Channing’s eloquent and able pamphlet on “the Duty of the Free States,” will not seem out of place. It was suggested by the well-known case of the Creole:—“It seems to be supposed by some that there is a peculiar sacredness in a vessel, which exempts it from all control in the ports of other nations. A vessel is sometimes said to be ‘an extension’ of the territory to which it belongs. The nation, weare told, is present in the vessel; and its honour and rights are involved in the treatment which its flag receives abroad. These ideas are, in the main, true in regard to ships on the high seas. The sea is the exclusive property of no nation. It is subject to none. It is the common and equal property of all. No state has jurisdiction over it. No state can write its laws upon that restless surface. A ship at sea carries with her, and represents, the rights of her country, rights equal to those which any other enjoys. The slightest application of the laws of another nation to her is to be resisted. She is subjected to no law but that of her own country, and to the law of nations, which presses equally on all states. She may thus be called, with no violence to language, an extension of the territory to which she belongs. But suppose her to quit the open sea, and enter a port, what a change is produced in her condition! At sea she sustained the same relations to all nations—those of an equal. Now she sustains a new and peculiar relation to the nation which she has entered. She passes at once under its jurisdiction. She is subject to its laws. She is entered by its officers. If a criminal flies to her for shelter, he may be pursued and apprehended. If her own men violate the laws of the land, they may be seized and punished.The nation is not present in her.She has left the open highway of the ocean, where all nations are equals, and entered a port where one nation alone is clothed with authority. What matters it that a vessel in the harbour of Nassau is owned in America? This does not change her locality. She has contracted new duties and obligations by being placed under a new jurisdiction. Her relations differ essentially from those which she sustained at home or on the open sea. These remarks apply, of course,to merchant vesselsalone.A ship of war is an ‘extension of the territory’to which she belongs, not only when she is on the ocean, but in a foreign port. In this respect she resembles an army marching by consent through a neutral country. Neither ship of war nor army falls under the jurisdiction of foreign states.Merchant vessels resemble individuals.Both become subject to the laws of the land which they enter.”

The taking possession of a vacant country for the purpose of settlement is one of the highest acts of sovereign power, for a nation thereby acquires not merely “thedomain, by virtue of which it has the exclusive use of the country for the supply of its necessities, and may dispose of it as it thinksproper, but also theempire, or the right of sovereign command, by which it directs and regulates at its pleasure every thing that passes in the country,” (Vattel, i., § 204.) It is hardly necessary to add, that a commission from the sovereign alone will authorize the act of taking possession, so as to secure respect for it,as a public act, from other nations. Thus we find that, in the letter from Mr. Gallatin to Mr. Astor, elsewhere quoted, this principle was fully appreciated by Mr. Astor, when he applied, in 1816, for a commission from the government of the United States. “You mentioned to me that you were disposed once more to renew the attempt, and to re-establish Astoria, provided you had theprotection of the American flag: for which purpose alieutenant’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.”

It remains to be considered whether the practice of nations has attached different considerations to the flag in respect todiscoveries.Discoveries, however, as forming the ground-work of territorial title, are in themselvestechnical. They areinchoate acts of sovereignty. “Even in newly-discovered countries,” said Lord Stowel, in the case of the Fama, already cited, “wherea title is meant to be established, for the first time, some act of possession is usually done and proclaimed as a notification of the fact.” It is not, therefore, the mere sight of land which constitutes a discovery, in the sense in which the practice of nations respects it, as the basis of territorial title; there must be some formal act of taking possession, which, as being an act of sovereign power, can only be performed through a commission from the sovereign. Thus Vattel, in the passage so frequently quoted, says, “The practice of nations has usually respected such a discovery, when made by navigators who have been furnished with acommission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of the nation.”

The conditional title by discovery is entirely the creature of the comity of nations; it has no foundation in the law of nature, according to which, if the discoverer has not occupied the territory, it would be presumed to remain vacant, and open to the next comer. For such purposes, however, the citizen or subject is not regarded as the instrument of his sovereign,unless he bears his commission, when his acts are respected as public acts, and are operative as between nation and nation.

It would thus appear that the first entering of the mouth of the Columbia River by Gray, being the act of a private citizen, sailing in a private ship for the purposes of trade, under the mercantile flag of his country, was not in the received sense of the worda discovery, which, according to the practice of nations, could lay the foundation of a title to territorial sovereignty. It does not satisfy the required conditions upon which alone the comity of nations would respect it. When therefore Mr. Buchanan says, “Besides, beyond all doubt this discovery was made by Gray, and to what nation could the benefit belong, unless it be to the United States,” he assumes that the comity of nations will attach benefit to such a discovery, contrary to the practice of nations. It is thus unnecessary to decide to what nation the benefit will belong, in a case in which no benefit can be held to have resulted. On the other hand, it is admitted by both of the American Secretaries of State, that thediscoveryof the mouth of the Columbia, in the popular sense of the word, was made by the Spanish navigator Heceta, some years before Gray visited the coast. It consequently follows that Gray achieved the first exploration, and not the discovery of the mouth of the river, even in the popular sense of the term.

In respect to the prior exploration of the Columbia River from its head-waters, by Lewis and Clarke, in 1805-6, Mr. Calhoun, having conducted the expedition, which had been despatched under the auspices of the Government of the United States in the spring of 1804, as far as the head-waters of the Missouri, states that “in the summer of 1805, they reached the head-waters of the Columbia River. After crossing many of the streams falling into it, they reached the Kooskooskee, in lat. 43° 34′, descended that to the principalnorthernbranch, which they called Lewis’s; followed that to its junction with the greatnorthern branch, which they called Clarke; and thence descended to the mouth of the river, where they landed, andencamped on the north side, on Cape Disappointment, and wintered.” Mr. Buchanan, in referring to this part of Mr. Calhoun’s argument, which he did not consider it necessary to repeat, observed that he had shown, “that Messrs. Lewis and Clarke, under a commission from their Government, first explored the waters of this river almostfrom itshead-springs to the Pacific, passing the winterof 1805 and 1806on its northern shore, near the ocean.” These statements however do not correspond with the facts themselves which they profess to represent.

Mr. Rush, in the negotiations of 1824, had set up for the United States an exclusive claim to the whole territory between 42° and 51° north, on the ground that “it had been ascertained that the Columbia River extended by the River Multnomah to as low as 42°, and by Clarke’s River to a point as high up as 51°, if not beyond that point.” The obscurity in which the geographical relations of the Oregon territory were at that time involved, might, to a certain extent, excuse the mis-statement of Mr. Rush on this occasion, for, as already observed, it has been subsequently ascertained that the source of the Multnomah is in about 43° 45′, and that of Clarke’s River, in 45° 30′; but Mr. Calhoun’s statement involves an historical as well as a geographical inaccuracy, which, under the circumstances, seems to have been intentionally put forward, since it is repeated by Mr. Buchanan. It is presumed that in the copy of the correspondence which has been circulated in the public journals, and which has been published in a separate form by Messrs. Wiley and Putnam of Waterlooplace, there is a misprint in Mr. Calhoun’s describing Lewis’ River as the principalnorthernbranch, more particularly as Clarke’s River is immediately after spoken of as the greatnorthernbranch. Lewis’ River must evidently have been intended to be described as the principalsouthernbranch, being the river on which the Shoshonee or Snake Indians fish, and which the travellers reached on descending the Kooskooskee. This inaccuracy may be passed over as an error of the press, but in respect to the next assertion of Mr. Calhoun, that Lewis and Clarke followed this river to its junction with thegreat northern branch, which they called Clarke’s River, it is not borne out by the account which Lewis and Clarke themselves give. On Friday, Sept. 6, Captain Clarke and his party reached the first river on the western side of the Rocky Mountains, to which they gavethe name of Clarke’s River, (Travels, ch. xvii.,) running from south to north, and which, from the account of the natives, they had reason to suppose, after going as far northward as the head-waters of the Medicine River, (a tributary of the Missouri,) turned to the westward and joined the Tacoutche-Tesse River. It must not be forgotten that the Tacoutche-Tesse, discovered by AlexanderMackenzie in 1793, was supposed to be the northernmost branch of the Columbia down to so late a period as 1812. Thus Alexander von Humboldt, in his New Spain, (l. i., c. 2,) writes:—“Sous les 54° 37′ de latitude boreale, dans le parallèle de l’île de la Reine Charlotte, les sourcesde la rivière de la Paix(Peace River) ou d’Ounigigah, se rapprochent de sept lieues des sources du Tacoutché-Tessé, que l’on suppose être identique avec la rivière de Colombia. La première de ces rivières va à la mer du Nord, après avoir mêlé ses eaux à celles du lac de l’Esclave et à celles du fleuve Mackenzie. La seconde rivière, celle de Colombia, se jette dans l’Océan Pacifique près du Cap Disappointment, au sud de Nootka-Sound, d’après le célèbre voyageur Vancouver, sous les 46° 19′ de latitude.”

Mr. Greenhow (p. 285) says, “Three days afterwards they entered the principal southern branch of the Columbia, to which they gave the name of Lewis: and in seven days more they reached the point of the confluence withthe larger northern branch, called by them the Clarke.” Such, however, is not the account of the travellers, who state that, having followed the course of the Lewis River, they reached on the 16th of October its junction with theColumbia River, (chap. xviii.,) the course of which was “from the northwest,” as Captain Clarke ascertained by ascending it some little distance. They nowhere, throughout the account of their travels, call this main river by any other name than the Columbia: they nowhere speak of it by the name of Clarke’s River; it is a reflection on their memory to represent them as supposing that this great northern branch was the river to which they gave the name of Clarke, for they fully believed, when they reached the main stream, that they had reached the Tacoutche-Tesse of Mackenzie, and at the same time the Columbia of Gray and Vancouver, of which they considered Clarke’s River to be merely a tributary. The names of Lewis and Clarke are totally unconnected with the great northern branch of the Columbia River, which was discovered and first explored from its sources in about 52° N. L., by Mr. Thomson, the surveyor or astronomer of the North-west Company, in 1811. This is an important fact, inasmuch as the exclusive claim of the United States was advanced in 1824, to the territory as far north as 51°, expressly on the ground that Clarke’s River extended as far north as that parallel, or even beyond that point, which is not the case. This northernbranch, down which Mr. Thomson first penetrated, is entitled to be considered as the main branch of the Columbia, on the well-known principle that the sources most distant from the sea are regarded as the true sources of a river, according to which doctrine the name of Columbia has been in practice retained for this northern branch, whilst distinctive names have been given to all the southern tributaries.

Mr. Calhoun continues to say, “and thence they (Lewis and Clarke) descended to the mouth of the river, where they landed, and encampedon the north side, on Cape Disappointment, and wintered.” The meaning of this passage might be doubtful, unless Mr. Buchanan had cleared it up by his expression of “passing the winter of 1805 and 1806 onits northern shore, near the ocean.” When it is remembered that it is the possession of thenorth bankof the river which is contested by the two parties to the negotiation; and that the incidents of this expedition are formally alleged, on the side of the United States, as forming part of the ground-work of their exclusive title, and that the British negotiators have objected throughout to the alleged completeness of the title of the United States, on the express ground that it is at best an aggregate of imperfect titles, and that the distinction between a perfect and imperfect title is not one ofdegree, but ofkind, it may not be unimportant to remark, that Lewis and Clarke passed the winter of 1805-6 on thesouthern shoreof the Columbia, in an encampment on a point of high land on the banks of the river Netul. It is perfectly true that, having proceeded down the Columbia as far as the roughness of the waves would allow them, they landed on the north side on the 16th of November, and encamped on the shore near a village of the Chinnook Indians, just above high-water mark, where Captain Clarke remained for nine days, until Captain Lewis had succeeded in selecting a favourable spot for their winter’s encampment; but the locality where theyencampedandwintered, was on the south side of the Columbia, amongst the Clatsop Indians, and from this very circumstance they gave to it the name ofFort Clatsop, which is so marked down in the map prefixed to the travels of Lewis and Clarke, with the further designation of “The wintering post of Captains Lewis and Clarke in 1805 and 1806.” Had not Mr. Calhoun specified the locality of this winter’s encampment as an element of thecumulative titleof the United States, and had not Mr. Buchanan repeated the statement of his predecessor moreexplicitly, it would not have been thought necessary to discuss the circumstances so fully; but as one object of this inquiry is to clear up the facts of the case, which, from the nature of the subject, are obscure, if this error of statement had not been pointed out, it might have tended to increase the existing intricacy of the question, more particularly when it has an official character impressed upon it. It can hardly be supposed to be an error of the press, since Cape Disappointment, which is on the north bank, is referred to by Mr. Calhoun as adjoining the spot where they “encamped and wintered.”

The result of this inquiry cannot be better summed up than in the words of Mr. Pakenham’s counter-statement:—“With respect to the expedition of Lewis and Clarke, it must, on a close examination of the route pursued by them, be confessed, that neither on their outward journey to the Pacific, nor on their homeward journey to the United States, did they touch upon the head-waters of the principal branch of the Columbia River, which lie far to the north of the parts of the country traversed and explored by them.

“Thomson, of the British North-west Company, was the first civilised person who navigated the northern, in reality the main branch of the Columbia River, or traversed any part of the country drained by it.

“It was by a tributary of the Columbia that Lewis and Clarke made their way to the main stream of that river, which they reached at a point distant, it is believed, not more than 200 miles from the point to which the river had been previously explored by Broughton.

“These facts, the undersigned conceives, will be found sufficient to reduce the value of Lewis and Clarke’s exploration on the Columbia to limits, which would by no means justify a claim to the whole valley drained by that river and its branches.”

Mr. Calhoun next proceeds to state the grounds on which, as alleged, priority of settlement was no less certain on the side of the United States:—“Establishments were formed by American citizens on the Columbia as early as 1809 and 1810. In the latter year a company was formed at New York, at the head of which was John Jacob Astor, a wealthy merchant of that city, the object of which was to form a regular chain of establishments on the Columbia River, and the contiguous coasts of the Pacific,for commercial purposes. Earlyin the spring of 1811, they made their first establishment on the south side of the river, a few miles above Point George, where they were visited in July following by Mr. Thomson, a surveyor and astronomer of the North-west Company, and his party. They had been sent out by that company to forestall the American company in occupying the mouth of the river, but found themselves defeated in their object. The American company formed two other connected establishments higher up the river: one at the confluence of the Okanegan with the north branch of the Columbia, about 600 miles above its mouth, and the other on the Spokan, a stream falling into the north branch, some fifty miles above.”

Mr. Calhoun, in making the above general allusion to establishments formed in 1809 and 1810, may be supposed to refer to a trading post founded by Mr. Henry, one of the agents of the Missouri Fur Company, on a branch of the Lewis River, the great southern arm of the Columbia. This post, however, was shortly abandoned in consequence of the hostility of the natives, and the difficulty of obtaining supplies, (Greenhow, p. 292.) It would, however, be rather an overstrained statement to describe this hunting station as an establishment formed on the Columbia, considering its very great distance from the junction of the Lewis River with the Columbia. Mr. Calhoun, however, may be alluding at the same time to the undertaking of Captain Smith, in the Albatross, in 1810, who is said by Mr. Greenhow to have attempted to found a trading post at Oak Point, on the south side of the Columbia, about forty miles from its mouth, and to have almost immediately abandoned the scheme. Such an attempt, however, can hardly be entitled to the character of a settlement. Beyond these two instances, it is believed that there is no occasion on record of the presence of citizens of the United States on the west side of the Rocky Mountains, during the years of 1809-10, which could give rise to the supposition of an establishment having been formed by them.

In respect, however, to Mr. Astor’s Adventure, the Pacific Fur Company was a mere mercantile firm, the formation of which originated with Mr. Astor, a German by birth, and ultimately a naturalized citizen of the United States. The original company was formed in 1810, and, according to Mr. Washington Irving, consisted of Mr. Astor himself, three Scotchmen, who were British subjects, and one native citizen of the United States. Three more Scotchmen, and two morecitizens of the United States were subsequently admitted, so that the majority of the company were British subjects, and they had received an express assurance from Mr. Jackson, the British Minister at Washington, that “in case of a war between the two nations, they would be respectedas British subjects and merchants,” [Greenhow, p. 295.] Mr. Astor stipulated to retain half the shares for himself, and in return to bear all the losses for the first five years, during which period the parties had full power to abandon and dissolve the association. A detachment of the partners arrived at the Columbia River in 1811, and formed a trading establishment on the southern bank of the river, on Point George, not far from the mouth, which they named Astoria. Mr. Washington Irving, who had his information from Mr. Astor himself, terms their establishment “a trading house,” [Chap. ix.] Not long after their arrival they received information from the Indians, that the North-west Company had erected a trading house on the Spokan River, which falls into the north branch of the Columbia, and they were preparing to dispatch a rival detachment to act as a counter-check to this establishment, when Mr. David Thomson, with a party under the protection of the British flag, having descended the Columbia from its northernmost source, arrived at Astoria. On his return Mr. Stuart, one of the partners of the Pacific Fur Company, accompanied Mr. Thomson’s party a considerable distance up the Columbia River, and established himself for the winter at the junction of the Okanegan with the Columbia, at about 140 miles from the Spokan River; here Mr. Stuart, according to Mr. Washington Irving, considered himself near enough to keep the rival establishment in check. It would thus appear that the earliest settlement on the Spokan River was made by the North-west Company, and from Mr. Washington Irving’s account, seems almost to have preceded the foundation of Astoria; for whilst the Astorians were occupied with their building, they heard from the Indians that white men “were actually building houses at the Second Rapids.” If, however, it was not antecedent, it was at least contemporaneous.

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