The _law of nations_ recognises no such principles, in regard to unappropriated territory, as those embraced in this treaty, and the British plenipotentiary must fail in the attempt to prove that it contains 'an admission of certain principles of international law' which will survive the shock of war."

Almost all the topics in the above pa.s.sage have been already discussed in the two previous chapters, as they were very dextrously urged by the commissioners of the United States in the course of the previous negotiations; so that a detailed examination of them on this occasion will not be requisite. The first article, however, does contain an acknowledgment of _previously subsisting territorial rights_, for it was agreed that "_the buildings and tracts of land_, of which the subjects of his Britannic Majesty were _dispossessed_, about the month of April 1789, by a Spanish officer, shall be _restored_ to the said British subjects."

This article of the treaty, when placed side by side with the declaration on the part of his Catholic Majesty of an exclusive right of forming establishments at the port of Nootka, and with the counter-declaration on the part of his Britannic Majesty of his right to such establishments as his subjects might have formed, or should be desirous of forming in future, at the said bay of Nootka, cannot be held to contain an acknowledgment on the part of Spain of a previously subsisting territorial right in Great Britain. In respect to its provisions for the future, and to the interpretation which the commissioners of the United States have sought to affix to the word "settlement," namely, that mere trading posts or factories were contemplated, it has been shown in the previous chapters, that, from the language of the treaty itself, in which the word "settlements" is, in three other places, employed to designate territorial possessions, and from the general language of treaties, such as the Treaty of Paris in 1763, as contrasted with the Treaty of London in 1815, such a view is quite incapable of being satisfactorily established: on the contrary, it is by implication refuted by the very stipulations in the fifth article, for free access and unmolested trade with these very settlements. Again, the character of the provisions of the convention is alleged to evince the intention of its being a mere temporary arrangement.

Such, however, was not the opinion of Mr. Fox, in respect to the sixth article, when he charged the British Minister with having renounced the previous rights of Great Britain _to plant colonies_ in the unoccupied parts of South America; nor of Mr. Stanley, in reference to the third article, when he said, "The southern fisheries will now be prosecuted in peace and security;" nor of the Duke of Montrose, when he said, "The great question of the southern fishery is _finally_ established, on such grounds as must prevent all future dispute;" nor of Mr. Pitt, when he said, that it was evident that "no claim (of Spain's) had been conceded,--that our right to the fisheries had been acknowledged,--and that satisfaction had been obtained for the insult offered to the Crown," (Hansard's Parliamentary History, vol. xxviii., p. 970;) or, as otherwise reported, "the claims of Spain had been receded from, and every thing stated in the royal message had been gained," (Gentleman's Magazine, vol. lxx., A. D.

1790, part ii., p. 1160.) Mr. Fox's chief cause of complaint against the treaty was, that it was a treaty of concessions on the part of Great Britain, and not of acquisitions: and when Mr. Grey, in taunting the Minister, complained, as instanced by Mr. Buchanan, "that where we might form a settlement on one hill, the Spaniards might erect a fort upon another," he in fact complained, not that we had not maintained a right to form territorial settlements, and to exercise acts of sovereignty in them, but that we had not a.s.serted this right so as to exclude the Spaniards entirely from the country. Reference has been made to these debates in the British Houses of Parliament, rather to ill.u.s.trate than to prove the fact of the treaty having been regarded in a very different light from a mere temporary engagement, by those who contended that Great Britain had conceded more advantages than she had acquired. Mr. Pitt, indeed, denied Mr. Fox's positions, and in answer to them maintained, "that though what this country had gained consisted not of new rights, it certainly did of new advantages. We had before a right to the Southern Whale Fishery, and a right to navigate and carry on fisheries in the Pacific Ocean, and to trade on the coasts of any part of it north-west of America: but that right not only had not been acknowledged, but disputed and resisted: whereas, by the convention, it was _secured to us_--a circ.u.mstance, which, though _no new right_, was a _new advantage_." That the condition of intermixed settlements, in regard to unappropriated lands, is clearly recognised by the law of nations, as consistent with the full and absolute independence of two separate nations, has been already shown by reference to acknowledged authorities on international law, so that Mr. Buchanan's entire argument appears to have been advanced rather upon specious than solid grounds.

There are several other arguments in the correspondence of the Commissioners of the United States that might deserve attention, were it not that the discussion would exceed the contemplated limits of this work, which has probably already attained too large a bulk. It has, however, been found impossible to compress the inquiry within narrower bounds, without incurring the double risk, on the one hand, of appearing to those who are imperfectly informed on the subject, not to have given sufficient consideration to the arguments of the Commissioners of the United States,--and, on the other hand, of causing to those who are well acquainted with the facts, some dissatisfaction by too cursory an exposure of the unsoundness of those arguments. Besides, the course adopted has been thought to be well warranted by the importance of the question, and to be at the same time more consistent with the respect due to the distinguished negotiators.

CHAPTER XVIII.

REVIEW OF THE GENERAL QUESTION.

Presumption in Favour of the Common Right of Great Britain.--No exclusive Rights in Spain or the United States.--Convention of 1818.--Convention of 1827.--Mr. Rush's Admission in 1824, that the United States had not a perfect Right.--Cession of Astoria.--Course of the Negotiations.--Messrs. Rush and Gallatin in 1818.--Mr. Rush in 1824.--Mr. Gallatin in 1826.--Negotiations of 1844-5.--Mr. Buchanan's Offer.--Mr. President Polk's Message to Congress.--Consequences involved in the two Proposals.--Valueless character of the Country north of 49.--Consequences of the Convention of 1827 being abrogated.--Present condition of the Northern and Southern Banks of the Oregon.--Voyages of British Subjects:--Drake,--Cook,--Vancouver.--Settlements of Great Britain.--Settlements of the United States.--Rule of Part.i.tion advanced by the United States in their Negotiations with Spain.--Its Application to the present Question.--Objections to it.--Mr.

Pakenham's Letter of Sept. 12, 1844.--Suggestion as to a further Proposal on the Part of Great Britain.--Mr. Webster's Antic.i.p.ations of the future Destinies of Oregon.--Mr. Calhoun's Declaration in 1843.

The failure on the part of the United States to make out their _exclusive claim_ establishes at once a conclusive inference in favour of the _common t.i.tle_ of Great Britain. The proof required in the two cases is essentially distinct. Where two nations are already settled in a country, the _onus probandi_ rests with the party that seeks to exclude the other.

Independent of the presumption from inference, Great Britain has conclusive _prima facie_ evidence of a right to form settlements in the country; first, in the recognition of this right by a Power which had a.s.serted an exclusive t.i.tle to the entire country under the guarantee of the Treaty of Utrecht, to which all the great colonial Powers in America were parties, but which ultimately abandoned it by the signature of the Convention of the Escurial: secondly, in the undisturbed enjoyment of this right during a period which, according to the Civil Law, to which all civilised nations agree in appealing for the arbitration of public differences between one nation and another, from the necessity of some common standard, const.i.tutes a valid prescription, such as was recognised in the case of Russia by the United States in 1824, and by Great Britain in 1825; thirdly, in the part.i.tion having been the subject of repeated negotiations, and more especially from the proposals to negotiate both in 1824 and 1826 having originated with the United States, which thereby admitted the claims of Great Britain to be similar in _kind_ with their own, though they might maintain them to be different in _degree_.

It seems to have been contended by the commissioners of the United States in the course of the last negotiation, that "whilst the proper t.i.tle of the United States gave them exclusive rights against all mankind, _the superaddition_ of the Spanish t.i.tle extended their exclusive right as against Great Britain," (Letter of Mr. Buchanan, July 12, 1845.) The enjoyment, however, of the territory by Great Britain was antecedent to the proper t.i.tle of the United States, whereas the possession of the United States can be accounted for consistently with the continuance of the common right of Great Britain, which she claims by virtue of a t.i.tle antecedent to such possession. But if the superadded Spanish t.i.tle conferred an extension of exclusive rights on the United States, it must have been _proprio vigore_ an exclusive t.i.tle; and if so, valid against the United States themselves: so that, on that supposition, the proper right of the United States could not be an exclusive right. There cannot be two exclusive t.i.tles in different nations to the same country, and Great Britain would be expressly debarred by the provisions of the Convention of the Escurial from recognising an exclusive t.i.tle in the United States, antecedent to their acquisition of the Spanish t.i.tle by the Treaty of Florida, because she had recognised in 1790 the right of Spain, in common with herself, to settle in any places of the north-west coast of America not as yet occupied: whilst she could not recognise the rights which devolved to the United States from Spain, in 1819, as exclusive rights, in the face of her previous admission that the United States were ent.i.tled to be considered as the party in possession of Astoria whilst treating of the t.i.tle, and in contravention to the third article of the Convention of 1818, which was grounded upon the basis of both the United States and Great Britain, as well as other Powers, having at that time claims to the country. In fact, Great Britain had acknowledged the common t.i.tle of Spain before the time when the United States a.s.sert their own exclusive t.i.tle to have commenced; and she had acknowledged the common t.i.tle of the United States, pending the continuance of the recognised t.i.tle of Spain: so that she is precluded from recognising the t.i.tle of either state to be an exclusive one, if she were even disposed to do so, by her own previous acts.

On the other hand, the United States themselves are precluded by their own previous acts from setting up either their own original t.i.tle, or their derivative t.i.tle from Spain, as an exclusive t.i.tle.

By the convention, signed at London, of October 20, 1818, it was agreed in the third article, "that any country that may be claimed by either party on the north-west coast of America, westward of the Stony Mountains, shall, together with its harbours, bays, and creeks, and the navigation of all the rivers within the same, be free and open for the term of ten years from the date of the present convention, to the vessels, citizens, and subjects of the two Powers; it being well understood that this agreement is not to be construed to the _prejudice of any claim which either of the two contracting parties may have to any part of the said country_, nor shall it be taken to affect the _claims of any other Power or state_ to any part of the said country; the only object of the high contracting parties, in that respect, being to prevent disputes and differences _among themselves_."

This article, in its very terms, implies the renunciation by both parties of an exclusive right to the entire territory, not merely in reference to each other, but still further in reference to other Powers.

By the convention, signed at London, of August 6, 1827, all the provisions of the third article of the Convention of 1818 were indefinitely extended, subject to abrogation, at the option of either party, upon twelve months'

notice; and by the third article it was stipulated, that "nothing contained in this convention, or in the third article of the convention of the 20th October, 1818, hereby continued in force, shall be construed to _impair, or in any manner affect, the claims_ which either party may have to any part of the country westward of the Stony or Rocky Mountains."

What those claims were on the part of the United States at the time of the Convention of 1818, was explicitly stated by Messrs. Gallatin and Rush, the Commissioners of the United States, before it was concluded. In their letter to Mr. Adams, of October 20, 1818, which commences with these words, "We have the honour to transmit a convention, which we concluded this day with the British plenipotentiaries," they state in reference to the negotiations, "We did not a.s.sert that the United States had a _perfect right_ to that country, (i. e., the country westward of the Stony Mountains,) but insisted that their claim was at least good against Britain." In other words, the plenipotentiaries on the part of the United States, at the first opening of the negotiations respecting the definitive adjustment of the mutual claims of the two parties westward of the Rocky Mountains, which has been a subject of subsequent negotiation on three separate occasions, limited their claims expressly to an imperfect right,--a right in common with Great Britain. They had already, in a.s.senting to be placed in possession of Astoria "whilst treating of the t.i.tle," according to Lord Castlereagh's agreement, as recorded by Mr.

Rush, admitted the _common right_ of Great Britain to possess settlements in that country. The United States had contended that Astoria had become a British possession _jure belli_, and Great Britain had covenanted by the first article of the Treaty of Ghent to restore all her acquisitions made _jure belli_. Great Britain, on the contrary, had maintained that Astoria had pa.s.sed into the hands of the North-west Company by peaceable transfer.

In agreeing then to treat of the t.i.tle, the two parties agreed to discuss these two facts, the former implying the common right of the United States to make settlements, the latter, the common right of Great Britain. It was idle to enter into an inquiry into the respective truth of the alleged facts, unless it followed that the t.i.tle of the party that could substantiate its statement would thereby be at once established. This however, implied a possibility on either side of a rightful t.i.tle, on the side of the United States by the Treaty of Ghent, on the side of Great Britain by the Law of Nations. The United States relied upon the _status ante bellum_, the lawfulness of which, in this particular case, was admitted by Great Britain's consenting to entertain such a t.i.tle; Great Britain rested on the received principles of international law, according to which her subjects, in common with those of other states, were ent.i.tled to make peaceable acquisitions in such parts of the north-west coast as were not yet occupied by any other civilised nation, which the United States could not gainsay. After the consent of both sides to treat of the t.i.tle upon this footing, it is out of the question to suppose that it is competent for either party on the renewal of negotiations to set up an exclusive t.i.tle: such a proceeding would be essentially _aggressive_ in its character, and would be altogether inconsistent with the tacit admission on both sides, when they agreed to entertain the consideration of each other's t.i.tle.

Let us now proceed to examine what has been the conduct of the two parties throughout the course of the various negotiations.

It having been expressly stated in 1818, by Messrs. Rush and Gallatin, that the United States _did not a.s.sert a perfect right to the country_, Mr. Rush, in his letter to Mr. Adams, proceeds to state, that "when the plenipotentiaries of the United States, on their part, stated, 'that there was no reason why, if the two countries extended their claims westward, the boundary limit of the 49th parallel of north lat.i.tude _should not be continued to the Pacific Ocean_," the British commissioners, though they made no formal proposition for a boundary, intimated that the river itself was the most convenient that could be adopted, and that they would not agree to any that did not give them the harbour of the mouth of the river, _in common with the United States_.

The history of the subsequent negotiations will show that on each occasion the United States have increased their claims and reduced their concessions, while Great Britain has not only not increased her claims, but on the contrary has advanced in her concessions.

Thus, in 1824, Mr. Rush commenced the negotiation by claiming for the United States, "in their own right, and as their absolute and exclusive sovereignty and dominion, _the whole of the country_ west of the Rocky Mountains, from the 42d to at least as far up as the 51st degree of north lat.i.tude." He further said, that "in the opinion of my government, the t.i.tle of the United States to the whole of that coast, from lat.i.tude 42 to as far north as 60, was superior to that of 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 her t.i.tle."

In accordance with these views, Mr. Rush annexed to the Protocol of the 12th Conference a formal proposal, that Great Britain should stipulate that her subjects should make no settlement on the north-west coast of America, _or the islands adjoining_, south of the 51st degree of lat.i.tude; the United States stipulating, that none should be made by her citizens north of the 51st degree. The British negotiators in reply proposed to accede to a line along the 49th parallel of north lat.i.tude as far as the north-easternmost branch of the Columbia, and thence down the middle of that river to the sea, the navigation of the river to be for ever free to both parties. The commissioner of the United States, on the other hand, would only vary his proposed line to the south, so as to consent that it should be the 49th instead of the 51st degree of north lat.i.tude, which was the original proposal in 1818, with the navigation of the river free to both parties.

On the negotiations being resumed in 1826, Mr. Gallatin, on the part of the United States, having set up a new ground of t.i.tle founded on the acquisition of Louisiana from France in 1803, and its contiguity through the intervening chain of the Rocky Mountains to the territory under discussion, limited his offer to the 49th parallel with the navigation of the river free to both parties, as before, whilst the British commissioners expressed their willingness to yield to the United States, in addition to what they first offered, a detached territory extending, on the Pacific and the Strait of Fuca, from Bullfinch's Harbour to Hood's Ca.n.a.l, and to stipulate that no works should at any time be erected at the mouth or on the banks of the Columbia, calculated to impede the free navigation of that river by either party.

This last stipulation was evidently adapted to obviate a difficulty which Mr. Prevost, the agent of the United States at the restoration of Astoria, had suggested to the United States Government as early as Nov. 11, 1818, in his report upon the Columbia River:--"In addition to this, it is susceptible of entire defence, because a ship, after pa.s.sing the bar, in order to avoid the breaking of the sea on one of the banks, is obliged to bear up directly for the knoll forming the cape, at all times, to approach within a short distance of its base, and most frequently there to anchor.

Thus a small battery erected on this point, in conjunction with the surges on the opposite side, would so endanger the approach as to deter an enemy, however hardy, from the attempt." (British and Foreign State Papers, 1821-22, p. 467.)

In the negotiations of 1844-5, lately brought to a close, Mr. Pakenham, the British plenipotentiary at a very early period, proposed in a letter of Aug. 26, 1844, in addition to what had been already offered on the part of the United States, and in proof of the earnest desire of her Britannic Majesty's Government to arrive at an arrangement suitable to the interests and wishes of both parties, to undertake to make free to the United States any port or ports which the United States Government might desire either on the main-land, or on Vancouver's Island, south of 49; and on Mr.

Calhoun's declining to make any counter-proposal, based on the supposition of the United States and Great Britain being occupants in common, Mr.

Pakenham suggested "an arbitration, to the result of which both parties should be bound to conform by the interchange of notes, as the most fair and honourable mode of settling the question," which Mr. Calhoun declined.

Mr. Buchanan, on resuming the negotiations after the election of Mr. Polk to the Presidency of the United States, concluded his communication of July 12, 1845, to Mr. Pakenham, by stating that the President would not have consented to yield any portion of the Oregon territory had he not found himself embarra.s.sed, if not committed, by the acts of his predecessors, and that he was instructed to propose the 49th parallel as before to the Pacific Ocean, offering at the same time to make free any port or ports on Vancouver's Island south of this parallel, which the British Government may desire.

"This proposal," as justly observed by Mr. Pakenham, in his reply of July 29, 1835, "was less than that tendered by the American plenipotentiaries in the negotiation of 1826, and declined by the British Government. On that occasion it was proposed that the navigation of the Columbia should be made free to both parties."

The President of the United States, in his message to Congress of the 1st of December, 1845, after briefly reviewing the course of the several negotiations, concludes that portion of his message with these remarkable words:--

"The civilised world will see in these proceedings _a spirit of liberal concession_ on the part of the United States; and this Government will be relieved from all responsibility which may follow the failure to settle the controversy."

Mr. Buchanan had stated to the same effect, at the conclusion of his letter of August 30, 1845, that not "only respect for the conduct of his predecessors, but a sincere desire to promote peace and harmony between the two governments," had actuated the President to offer _a proposition so liberal_ to Great Britain.

"And how has this proposition been received by the British plenipotentiary? It has been rejected without even a reference to his own Government. Nay, more; the British plenipotentiary, to use his own language, 'trusts that the American plenipotentiary, will be prepared to offer some further proposal for the settlement of the Oregon question more consistent with fairness and equity, and with the reasonable expectations of the British Government.'"

It could hardly require a reference from Mr. Pakenham to the British Government at home, to satisfy him that he should at once decline to accept a less liberal offer than that which his Government had already declined on two previous occasions. Surely the meaning of the word "liberal" must have acquired a different acceptation in the United States from what it bears in the mother-country, or the notions of what const.i.tutes "a spirit of liberal concession," must be very different on the eastern and western sides of the Atlantic; for, in the usual signification of the word in the mother-country, it would be bitter irony to apply such a term to the proposal authorised by President Polk, expressly, as alleged, in deference to what had been done by Presidents Monroe and Adams. It is an offer on the part of Mr. Polk to share a worthless haven with Great Britain, when his predecessors have offered to share the Great River of the West.

The offer of Great Britain, when first made by her in 1824, would have imposed upon her at that time, if accepted by the United States, as likewise at the present time, the necessity of ultimately breaking up four or five settlements, formed by her subjects within the limits that would become prohibited; and which they had formed under the belief of their full right, as British subjects, to settle there. "But their Government was willing to make these surrenders, for so they considered them, in a spirit of compromise, on points where the two nations stood so divided,"

(British and Foreign State Papers, 1825-26, p. 519;) whereas the United States would not be required to abandon a single settlement; on the contrary, they would retain the fertile valley of the Willamette, where their settlers are mostly located. The proposal of the United States, on the other hand, would require that Great Britain should abandon the majority of her settlements, and amongst these Fort Vancouver, the depot of the Hudson's Bay Company, from which fourteen other settlements receive their supplies; that she should resign the use of the river, the free navigation of which is absolutely necessary for the transport of outfits and their returns; that she should be precluded, not merely from the harbour within the river, but from the harbours in Admiralty Inlet, the only really valuable harbours on the coast; that she should give up the agricultural district round Puget's Sound, where the fixed population of British Canadians are located, and which bears a similar relation to the future destinies of Northern Oregon, that the valley of the Willamette does to those of Southern Oregon; and in this proposal Mr. Buchanan, in his letter of July 12, 1845, "trusts that the British Government will recognise the President's _sincere and anxious desire to cultivate the most friendly relations_ between the two countries, and to manifest to the world that he is actuated _by a spirit of moderation_." In return Great Britain is to be allowed to retain a district of barren territory in Northern Oregon, in which Captain Wilkes has officially reported to the United States, that "there is no part on the coast where a settlement could be formed that would be able to supply its own wants," and which even for hunting purposes is so unproductive, that the Hudson's Bay Company have found it expedient to lease other hunting grounds within the Russian territories; and this too, when the future value of the country will consist, not in its capability to supply the fur-trader with the skins of the beaver and sea-otter, but in the adequacy of its grazing and agricultural produce to support a fixed body of inhabitants, as well as to victual the ships of various nations engaged in the China trade, and in the fisheries of the South Sea. Harder conditions could not well have been dictated by a conquering to a conquered nation as the price of peace, neither do they accord with that spirit of just accommodation with which Mr. Rush, in 1824, expressly declared the Government of the United States to be animated, nor with those principles of mutual convenience which it was then agreed on both sides to keep in view, in order to further the settlement of their mutual claims.

If the present convention should be abrogated by either party, the only object of which, according to the express declaration of the two contracting parties, was "to prevent disputes and differences amongst themselves," the existing condition of common occupancy does not thereby terminate. Each nation will still be bound to respect the settlements of the other. The mutual rights and obligations recognised by Great Britain and Spain in respect to each other, in the Convention of the Escurial, were recognised once and for all. The United States now stands in the place of Spain; she a.s.serts that by the Treaty of Florida she holds in her hands all the Spanish t.i.tle, but her hands are also bound by the obligations of Spain. By the Convention of the Escurial, the liberty of free access and unmolested trade with the settlements of each other, made subsequent to April 1789, was secured to either party: in other respects their settlements would carry with them the independent rights, which the law of nations secures to the settlements of independent powers. Oregon would thus be dotted over with the settlements of subjects of Great Britain, and citizens of the United States, in juxta-position to each other, like the Protestant and Catholic cantons of Switzerland. The tribunals of the United States have decided in Washbourne's case (4 John's C. R. 108) and in other cases, "that the 27th article of the Treaty of 1793, which provided for the delivery of criminals charged with murder and forgery, was only declaratory of the law of nations, and is equally obligatory on the two nations under the sanction of public law, and since the expiration of that treaty, as it was before." So far the recurrence of mutual outrages might be checked. Still, such a condition of things would leave open, as Mr. Rush observed in 1824, "sources of future disagreement, which time might multiply and aggravate." It is, therefore, for the interest of both parties, that a line of demarcation should be drawn, to prevent the possible conflict of jurisdiction. A few square miles, more or less, where the entire territory to be shared between the two nations extends over a district of more than 500,000 square miles, can form but a secondary element of consideration in the question. If we look to the original rights of the United States, as founded on use and settlement, they point exclusively to the southern bank, whilst those of Great Britain point, in a similar manner, to the northern. Citizens of the United States first explored the southern branch of the Columbia, whilst subjects of Great Britain first explored the northern. The flag of the United States has been authoritatively displayed on the southern bank alone, whilst the British ensign has exclusively been hoisted on the northern. Whilst the valley of the Willamette in Southern Oregon is cultivated, according to Captain Wilkes, by settlers from other countries besides the United States, the agricultural establishments on the Cowlitz River, and on the sh.o.r.es of Puget's Sound, in Northern Oregon, are exclusively the creation of British subjects.

Great Britain having expressly declared in 1826, that she claimed "no exclusive sovereignty over any portion of that territory," it has been thought unnecessary to set out in full her original t.i.tle, as against the United States. It is impossible in the present day to ascertain how far Drake was authorised to make discoveries in the South Seas on account of his sovereign. We are informed by Stow the annalist, that he had obtained the approval of Queen Elizabeth to the plan of his expedition, through the interest of Sir Christopher Hatton; and the author of "The World Encompa.s.sed" affirms that he had _a commission from his sovereign_, and that she delivered to him a sword with this remarkable speech:--"We do account that he which striketh at thee, Drake, strikes at us." Captain Burney's opinion, however, seems most to accord with probability--that he had _no written commission_. The Queen, however, on his return, after a protracted inquiry before her Council, upon the complaint of the amba.s.sador of Spain, approved and ratified his acts; and in her reply to the amba.s.sador's remonstrances against Drake's territorial aggressions, expressly a.s.serted, according to Camden, that as she did not acknowledge the Spaniards to have any t.i.tle by sanction of the Bishop of Rome, so she knew no right they had to any places other than those they were in possession of, (Cf. supr., p. 161.) Vattel (b. xi., -- 74) states the law that, "if a nation or its chief approves and ratifies the act of the individual, it then becomes a public concern." Drake thus appears to have been recognised as an instrument of his sovereign; and though the moderation of the British Government has led it not to insist upon Drake's discovery of the northwest coast as far as 48, though it was coupled with formal acts of taking possession with the consent of the natives, because Great Britain did not follow it up within a reasonable time with actual settlements, still that discovery has not lost its validity as a bar to any a.s.serted discovery of a later period.

On the other hand, the expeditions of Captains Cook and Vancouver satisfied all the conditions required by the law of nations for making discoveries and forming settlements. Unless Captain King, the companion of Cook, had published his account of the high prices which had been obtained by his sailors for the furs of the north-west coast of America in the markets of China, the American fur-trader, as Mr. Greenhow terms Captain Gray, would never have resorted to the coast of Oregon. But before any trading vessel of the United States had appeared off those sh.o.r.es, Captain Cook had traced the American coast, from a little above Cape Mendocino to Icy Cape, in 70 29'; whilst Vancouver was despatched in 1791 expressly by the British Government, to ascertain what parts of the north-west coast were open for settlement to subjects of Great Britain, in accordance with the 3d article of the Convention of the Escurial; and after an accurate survey reported, that the Presidio of San Francisco, in about 38, was "the northernmost settlement of any description formed by the Court of Spain on the continental sh.o.r.e of North-west America." To Vancouver the civilised world was indebted for the first accurate chart of the entire coast. The important services rendered to navigation and science by Vancouver and Lieutenant Broughton, were fully acknowledged by Mr.

Gallatin in the negotiations of 1826; yet all these, it is contended by the Commissioners of the United States, are entirely superseded by Captain Gray having first entered the mouth of the chief river of the country.

When Mr. Buchanan, therefore, at the commencement of his letter of August 30, 1845, states, "that the precise question under consideration simply is, were the _t.i.tles_ of Spain and the United States, when united by the Florida treaty on the 22d of February 1819, _good as against Great Britain_, to the Oregon territory as far north as the Russian line, in the lat.i.tude of 54 40'?" and a.s.sumes, as a consequence, that if they were, it will be admitted this whole territory now _belongs_ to the United States; he avails himself of the ambiguity of the term _t.i.tle_, to infer that the establishment of a _common t.i.tle_ must lead to the admission of an _exclusive t.i.tle_.

With much more reason might Great Britain have set up an exclusive t.i.tle against the United States, which she has, in the spirit of moderation, forborne to do. She might have said, "We were ent.i.tled by the general law of nations to make settlements in this country, as being unoccupied by any civilised nation. We were the first civilised nation that established a permanent occupation of it, which has never been abandoned, by a settlement in the year 1806 on Frazer's River. We have since that time, steadily occupied the entire country north and south of the River Columbia, as far as the sources of Lewis River, where Fort Hall, the most southern settlement of the Hudson's Bay Company, supplies shelter and food to the wasted and famished settler from the United States, on his first entry into the promised land of Oregon." She might have said, "Before 1833, American citizens, on the testimony of their own countrymen, had no settlements of a permanent kind west of the Rocky Mountains. Even in the valley of the Willamette, where Captain Wilkes, in 1840; found not more than _sixty_ families, many of them being British subjects, and late servants of the Hudson's Bay Company, the first settlements were made by officers of that Company, under the encouragement of the Company. It was owing to the report of the thriving condition of these farms having been carried to the United States by American trappers, that settlers from that country were led to undertake the long and perilous journey across the Rocky Mountains, which they would never have survived, had not the British settlements preceded their adventurous enterprise, and furnished them with supplies on their arrival." Yet after an indisputable use and enjoyment of this country by British subjects for a greater period of time, than that which the United States admitted by treaty in 1824, to establish a valid t.i.tle by prescription in favour of Russia, from 60 north lat.i.tude to 54 40', against their own Spanish derivative t.i.tle, the President of the United States declares, in his solemn message, his "settled conviction that the British pretensions of t.i.tle could not be maintained to any portion of the Oregon territory, upon any principle of public law recognised by nations."

The plenipotentiaries of the United States, in their negotiations with Spain respecting the boundary of Louisiana, laid down this principle as adopted in practice by European Powers, in the discoveries and acquisitions which they have respectively made in the New World,--that "whenever one European nation makes a discovery, and _takes possession of any portion of that continent_, and another afterwards does the same at some distance from it, when the boundary between them is not determined by the principle above mentioned (viz., the taking possession of an extent of sea coast,) the middle distance becomes such of course." (Cf. supr., Ch.

XIII.) If we apply this rule to the settlement of the claims of Great Britain and the United States, either in respect to the conflict of their original t.i.tles, or in respect to the conflict of the t.i.tle of Great Britain recognised in the Convention of the Escurial, with the t.i.tle of the United States devolved to them by the Treaty of Washington, we shall find it confirm the reasonableness of the offer made by Great Britain. It was ascertained by Vancouver, who had been despatched by his sovereign with this express commission, that the northernmost part of the north-west coast _already occupied_ by Spain, at the signature of the Convention of 1790, was the Presidio of San Francisco, in about 38 north lat.i.tude.

Vancouver at the same time ascertained that the settlements of the Russians extended as far south as Port Etches, at the eastern extremity of Prince William's Sound, a little to the south of 60, and thus determined the extent of the common rights of Great Britain and Spain under the convention, which Mr. Pitt declared, as first Minister of the Crown of England, "he should esteem the Government of his Britannic Majesty highly culpable if they neglected to ascertain, by actual survey," (St. James's Chronicle, December 15, 1790.) Both the United States, however, subsequently to their acquisition of their derivative Spanish t.i.tle, and Great Britain, have recognised, by separate treaties in 1824 and 1825, the territorial rights of Russia as far south as 54 40' north lat.i.tude, founded on the use and enjoyment of the coast by Russian subjects, during the intervening period between Vancouver's visit and the publication of the Imperial Ukase of September 16, 1821; so that the rights of Great Britain to form settlements under the Convention of the Escurial, are thus limited by her own act to the parts of the coast between 38 and 54 40', and the United States, by a similar act, have confined their derivative t.i.tle to the same northern boundary. When, however, the United States claim to hold in their hands the t.i.tle of Spain against Great Britain, and upon the strength of that t.i.tle propose to make a final part.i.tion of the territory hitherto the subject of a common occupation, if they would abide by their own rule, as solemnly propounded by their commissioners on two distinct occasions, the middle distance between 38 and 54 40' becomes the boundary line of course. The extremities of the country to be divided are thus marked out by the Presidio of San Francisco on the southern side, and by Fort Frazer on the northern, and nature seems to have accorded the embouchure of the Columbia River, in the lat.i.tude of 46 18', to meet the conditions of so reasonable a rule, as that which the United States then maintained to be grounded on an acknowledged principle of international law.

Such a rule might reasonably be resorted to on this occasion, as furnishing a solution to the problem of converting the common rights of the United States and Great Britain into separate rights. The United States, however, might admit that the principle was abstractedly sound, but that its application, as proposed, was inadmissible, as their claim commenced at 42, and not at 38. It is evident, however, that the derivative t.i.tle from Spain as against Great Britain, if it be advanced as the basis of the negotiation, which has been the case, cannot a.s.sume a different form in the hands of the United States, from that which it would have presented in the hands of Spain herself: otherwise, _the less_ Spain had ceded to the United States, _the more_ the United States would be ent.i.tled to claim from Great Britain, which of course is untenable. But Great Britain has conceded to the United States more than the limits which this rule would a.s.sign to them, namely, the entire left bank of the Columbia River as far as the 49th parallel, thereby giving up to them the exclusive possession of the Lewis River and the Clarke River, and the intermediate territory.

The general character, however, of the proposals of Great Britain cannot be better described than in the words of Mr. Pakenham's letter of Sept.

12, 1844:--

"It is believed that by this arrangement ample justice would be done to the claims of the United States, on whatever ground advanced, with relation to the Oregon territory. As regards extent of territory, they would obtain acre for acre, nearly half of the entire territory to be divided. As relates to the navigation of the princ.i.p.al river, they would enjoy a perfect equality of right with Great Britain: and with respect to harbours, Great Britain shows every disposition to consult their convenience in this particular. On the other hand, were Great Britain to abandon the line of the Columbia as a frontier, and to surrender the right to the navigation of that river, the prejudice occasioned to them by such an arrangement, would, beyond all proportion, exceed the advantage accruing to the United States from the possession of a few more square miles of territory. It must be obvious to every impartial investigator of the subject, that in adhering to the line of the Columbia, Great Britain is not influenced by motives of ambition, with reference to extension of territory, but by considerations of utility, not to say necessity, which cannot be lost sight of, and for which allowance ought to be made, in an arrangement professing to be based on considerations of mutual convenience and advantage."

Great Britain has advanced in her offers on each separate negotiation. Let her make one step more in advance. Let her offer to the United States to declare the ports in Admiralty Inlet and Puget's Sound to be "Free Ports,"

with a given _radius_ of free territory. The advantage which she would give to the United States, would far exceed the prejudice occasioned to herself by such an arrangement, and the proposal would be in accordance with the principle sanctioned by the 5th article of the Convention of the Escurial, which guaranteed a mutual freedom of access to the future settlements of either party for the purposes of trade. If her Britannic Majesty's Government should deem it consistent with a just regard to the interests of Great Britain, as it would certainly be in accordance with the spirit of moderation which has. .h.i.therto influenced her Majesty's councils, to make this further offer, and if the President of the United States should instruct his plenipotentiary to reject it, the attempt to effect a part.i.tion of the territory by treaty may be regarded as hopeless.

It will then be best for both parties that the Convention of 1827 should be abrogated, and the future destinies of the country be regulated by the general law of nations. It would be idle to speculate upon those future destinies,--whether the circ.u.mstances of the country justify Mr. Webster's antic.i.p.ations that it will form at some not very distant day an independent confederation, or whether the natural divisions of Northern and Southern Oregon are likely to attach ultimately the former by community of interests to Canada, and the latter to the United States of America. When it is remembered that Mr. Calhoun declared in 1843, that "the distance for a fleet to sail from New York to the Columbia is more than 13,000 miles, a voyage that would require six months," and that "the distance overland, from the State of Missouri to the mouth of the Columbia River is about 2,000 miles, over an unsettled country of naked plains and mountains, a march, if unopposed, of 120 days," the scepticism of such as doubt the inevitable absorption of Oregon into the United States, seems at least to be excusable.